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Photographers, Know Your Rights!

Photographers, Know Your Rights!

Jason D. Little
Jason Little is a photographer (shooting macros, portraits, candids, and the occasional landscape), part time writer, and full time lover of music. You can see Jason’s photography on his photography blog or on Flickr.
Jason D. Little
Jason D. Little

Blog Posts by Jason D. Little

Jason D. Little

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By on in Random

 

On March 14, 2012, Temple University photojournalism student Ian Van Kuyk was sitting on the steps outside his home in Philadelphia, PA when police pulled over a vehicle just a few feet away. Spurred to action by the unexpected event, Van Kuyk began to photograph the scene unfolding in front of him in order to complete a course assignment for nighttime photography. The college junior was not using flash and promptly complied with a police officer’s command to stand back. Van Kuyk, however, did not obey officers’ subsequent command to stop taking photos, asserting his right to use his camera on a public street. The unsuspecting photographer was then forced to the ground and handcuffed; Van Kuyk’s girlfriend was also arrested after she attempted to retrieve the camera before police could confiscate it. Philadelphia Police Lt. Raymond Evers later stated that Van Kuyk and his girlfriend were arrested for “other offenses” unrelated to taking photos. The camera was eventually returned to Van Kuyk with all images still intact.

The Law and the Photographer

Stories like this are not uncommon in our hyper-vigilant world where, ever since 9/11, even the slightest appearance of some perceived impropriety might propel onlookers to start throwing around the dreaded “t-word.” But it’s an absurdity of monumental proportions to jump to the conclusion that every time you see someone pull out their camera they are in the early phases of a terrorist plot. Nevertheless, this is the reaction — or overreaction — that photographers are likely to encounter at some point.

The good news is that, whether you are a tourist taking snapshots of the local architecture or a professional photojournalist documenting a protest, you have rights that protect you (and your camera) from harassment and other violations.

Before outlining these rights I need to preface this account by stating a couple of things. First, I am not a lawyer; if you are in need of in depth legal advice you should consult an attorney. Second, I am an American citizen and, as such, consider myself unqualified to speak with any authority on the laws of other nations; while I am aware that photographers’ rights in places such as the U.K., Australia, and Canada are notably similar, I can only address these rights as they apply specifically to the U.S.

The Public Domain

The law concerning what an individual can photograph is actually quite uncomplicated: basically, if you can see it, you can shoot it. This, of course, applies to public spaces; you have the right to photograph anything and anyone in “plain view,” including federal/government buildings, transportation facilities, and law enforcement officials. The two exceptions to the plain view concept are:

  1. certain military and energy installations — due to national security concerns —
  2. individuals who have a reasonable expectation of privacy.

Thus, photographing someone through a window in their home is strictly off limits as it is understood to be a violation of their rights as a private citizen.


Journalists Protest against rising violence during march in Mexi by Knight Foundation, on Flickr

 

The Private Sector

Taking photos on private property is also permitted so long as that property is open to the public. This may seem somewhat counterintuitive at first glance; what kind of private property is freely accessible to the general public? The most common examples of this include shopping malls, restaurants, banks, and office building lobbies. The one caveat in this situation is that the property owner has the right to set and enforce the rules for his or her property. So, if you are asked to stop taking photos and refuse to comply, the property owner can not only insist that you leave, but may also — at their discretion — have you arrested for trespassing.

The Law and the Enforcers

Not only does the law set forth guidelines about where and what one may photograph, but it also addresses how police are expected to conducted themselves when handling incidents that involve photography.

  • Police cannot confiscate your camera or memory card or demand access to your photographs without a warrant. Even if you are arrested for trespassing, as in the above example, your photographs are to remain your property.
  • Under no circumstances are police lawfully permitted to delete the contents of a camera or memory card. The 4th Amendment of the United States Constitution regards this act as destruction of evidence and expressly forbids it.
  • Police may command any individual to cease any activity that is legitimately interfering with sanctioned law enforcement procedures. The potential problem here relates to very loose interpretations of what “legitimate interference” is and isn’t. As public officials, police conduct is subject to scrutiny; sometimes that scrutiny takes the form of being photographed by citizens. Regardless of how much a police officer may resent being photographed, it is the right of the individual to do so as long as you do not break any other laws in the process.

Additional Legal Considerations

  • While airport photography has taken a more anxiety-inducing turn in post-9/11 America, the Transportation Security Administration (TSA) has gone on record to convey that photography is indeed allowed in and around security checkpoints as long as you are not interfering with the screening process and are not photographing its security monitors. Furthermore, the TSA advises that local agencies may enforce prohibitions that the TSA itself does not.
  • Video recordings generally are afforded the same rights and restrictions as still photographs, with one major exception. The visual component of a video recording is fully protected, while the audio portion may or may not be, depending on where the recording was made; some states have attempted to classify the audio component as an illegal wiretap. Obviously, there is an enormous swath of gray area in this regard, further complicated by the constant flux of legal challenges to the statute and the legal tinkering and fine-tuning that occur as a result.
  • As the photographer, you hold exclusive copyright to any shots you take and may use those shots for virtually any non-commercial purpose.

Self-preservation

How should you respond if you are ever confronted by the police for taking photos?

  • Stay calm, be polite, and don’t do anything to provoke a physical altercation.
  • Try to get a clear answer as to why you are being stopped. The most important question you can ask at this point is whether you are free to leave. The officer’s reply will help you determine your next course of action. If you are told that you are not allowed to leave, that means you are being officially detained. Detaining a citizen is not lawful without reasonable suspicion that the individual has, is preparing to, or is in the midst of committing a crime. And since photography is not a crime….
  • Ask what crime you are, in fact, suspected of committing. If necessary, remind the officer that your photography is protected by the very law he or she is unfairly attempting to enforce.

Female Photographer Morro Bay, CA 17feb08 by mikebaird, on Flickr

Power

The case of Ian Van Kuyk is, unfortunately, not an anomaly. A cursory Google search will reveal an inordinate number of hits pertaining to citizens who have had to endure some level of harassment simply for taking photographs. An important factor common to nearly all of these cases is that none of the individuals in question were breaking any other laws; they were not trespassing, interfering with police, or engaging in vandalism. And in each of these cases photographers have stood their ground. The importance of this cannot be understated. The impact that photography has on society is not limited to the artistic realm, it extends well beyond the preservation of family memories; photography, as a documentary tool, often serves to keep government power in check. Does it always work? Of course not. But an awareness of the ubiquitous state of the camera in our modern world may be enough to keep at least a few public officials honest and forthright in their dealings with the citizens whom they simultaneously serve and wield power over. But when it comes to power, never underestimate the power of the average person with a camera and the impulse to make a difference.

Some Helpful Resources

Photographers’ rights in the U.K.

Photographers’ rights in Australia

Photographers’ rights in Canada

Download a “Photographers’ Rights” datasheet written by Bert Krages

 

30 Comments

  • Avatar of AlisonAlison:

    As a strange coincidence, I read that Australian article today. Small world.

    January 7, 2013 at 3:25 am

  • Berger Bros:

    Thank you for the reminder! We all need to be aware of our rights as photojournalists and amateurs alike.

    January 7, 2013 at 12:18 pm

  • Photographers, Know Your Rights! « jDevaun Photography:

    [...] Photographers, Know Your Rights!. [...]

    January 9, 2013 at 1:28 am

  • Colin Burt:

    The link to photographers rights’ in Australia’ must be used with the knowledge that there are six States and two Territories in Australia and this site applies only to New South Wales – where Sydney is. So watch out – elsewhere may well be different, and Aussie cops are just as self important and anti-recording of their activities as yours in the U.S. Plus you as a visitor are a long way from home and have a plane booking to catch !

    January 12, 2013 at 9:01 pm

  • Timshel2010 at flickr:

    Great article. A prison security person told me I had to delete photos from my camera and threatened to have me arrested for taking pictures of the state prison from the prison parking lot. I learned later he could have had me arrested. But I agreed with his request to shoot from across the street. I refused to delete the images.

    For “non-commercial purposes”…so can I sell prints of a musician that I took at a concert?

    Can I post or even sell photos of people in a diner without a model release?

    Important topics. Thanks again.

    January 13, 2013 at 4:44 am

    • Casey Jones:

      Non-Commercial = No profit to be made.

      Without a model release you can only sell your images of a celebrity/public event as Editorial Stock. However, you can post your photojournalism images to your portfolio or online galleries.

      February 16, 2013 at 9:04 pm

  • Photojournalist:

    i think u people should go through this link.

    http://kafila.org/2011/11/27/uthao-uthao-video-ab-wont-you-make-the-video-now/

    January 19, 2013 at 9:08 am

  • Jim:

    Photojournalist:

    I am damn sure NOT to follow a random link just because some random blog commenter tells me “u people should go through this link.” We don’t have any idea what’s at the other end of the link, and for all we know it could be some page ready to dump some malware on our machines. No thanks.

    In this case I used a workaround, copying the URL, pasting it into a search field, and then using the Ixquick proxy to view the page.

    The link does appear to be legit. I don’t know what kafila.org is, but the page, viewed through the ixquick proxy, is a news story dealing with press freedom and police brutality in Kashmir, and it includes the fact that an AP photographer was among those beaten up, and the story hit the Washington Post. Not good for the Kashmiri authorities.

    So this link is legit, and I think people ought to feel free to click it and read the contents. But in general, I’m still not going to click a link just because someone I don’t know tells me to.

    February 2, 2013 at 10:34 pm

  • Matthew Richter:

    So why are we not seeing images of the wars in Afghanistan and Iraq? I believe there are some bans and policies in place. Where are the journalists on this need for seeing what is being done to people? There is also the problem of indefinite detention without warrant and no requirement to file charges. There are several ways for federal and state authorities to make our lives difficult or impossible.

    February 5, 2013 at 7:51 am

  • Jean:

    From the other side of the coin:

    An officer in a traffic stop or conducting any other confrontational police business is in a perilous situation. When a non-involved citizen inserts themselves into the situation, the officer has one more potential danger to pay attention to, which increases the risk. And, if the traffic stop goes south, (traffic stops are one of the higher risk activities), the officer has to worry about protecting your life as well as his/her own.

    Most will gladly agree to photographs in a non-threatening environment.

    February 9, 2013 at 5:48 pm

    • Jacob Perl:

      Good point. I always recommend/practice staying back as far as possible and using a long lens for these situations. It’s one thing to know our rights, but at the same time it’s usually unwise to provoke an unnecessary confrontation.

      February 27, 2013 at 11:46 am

  • Curious:

    I’m a US citizen and I was taking photos of the US Embassy in Oslo when a guard told me that I had to stop. I was on the (public) sidewalk, and I asked him why. He said that bad things would happen if I didn’t. I asked him if I could take his photo, and he said “no”. I could have easily walked up the hill and taken the photos from a block away, but someone inside the building had clearly alerted him to check on me, and I didn’t want to disappear in a van. Incidentally, that Embassy is being moved to a hilltop location so no one can just walk up and take photos.

    March 4, 2013 at 2:00 pm

  • Eric:

    Casey Jones is incorrect regarding the nuances of when model releases are or are not required. It has a lot less to do with whether the use is commercial and more to do with whether the publicization of the photo implies that the subject is advocating for a cause. Those interested should spend an afternoon reading up on this widely misunderstood subject.

    March 14, 2013 at 2:33 pm

  • Geoff:

    Great article! I was in downtown Los Angeles a few years ago taking photos of some high rise buildings. A security guard approached me and asked me to stop taking photos. Not knowing my rights, I wasn’t sure how to react. So I stopped. But according to the “if you can see it, you can take pictures of it” rule, I should have been able to keep taking pictures. Thanks for the article.

    July 29, 2013 at 5:14 am

  • Marc:

    Glad i’m living in Europ. Past some years ago via some American airports on my way to Costa Rica and never had the idea that i was welcome in the US. Had the feeling that everyone was treated as a potential criminal. Laws are necessary but the don’t need to be miss used to suppress people. Hope that this is not the American dream ?

    July 29, 2013 at 1:03 pm

  • Paul:

    Be aware that the photography of persons in Mexico requires their prior consent, even if they are in public…

    December 16, 2013 at 11:45 pm

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