Photography much like other professions is bound by certain laws and has legal recommendations for quite a several situations. The following are the legal considerations for photography that will protect a photographer from legal liability.
Legal Rules for Photography
A photographer may take photos in public space as is the legal and accepted rule. However, for private spaces such as venues and events, a photographer may take photographs only if they have permission from the party that organized or manages the events. Public parks, streets, and sidewalks are considered public venues. However, private property is considered private. A photographer requires the permission of the property owner to physically be on private property. However, the photographer may legally take photos of the private property from a public area without any legal issues.
Get permission in case of any doubt
While the physical position of the photographer when the photos are taken primarily determines whether the photographer requires permission from a property owner, it is advisable for the photographer not to simply rely on their physical position. The photographer may choose to err on the side of caution by obtaining permission from the property owner even if they may not need it. By simply obtaining permission from the property owner, the photographer can prevent objections or misunderstandings. If the property owner declines the photographer’s request to take photos of their property, the photographer is legally obligated to respect the property owner’s wishes.
Exceptions to the general legal rule
As with most rules, the general legal rule for photography has some exceptions. A military installation may choose to prohibit photographs in a bid to protect national security. Nuclear facilities may also adopt this rule, in which case a photographer may not be allowed to take photographs. These facilities may have public access areas where photographs are allowed. Hence, it is quite important for the photographer to ask permission before taking photos in situations such as these.
Photographing in public places
Photographers are most confronted when taking photos of people in public places. The general legal rule remains for a photographer to take a photo of people in a public area such as a park. However, a photographer must be aware of an important exception:
If the subject is in a public area but takes the initiative to distance themselves from other people in the same area, it is implied that the subject has a reasonable expectation of privacy.
The implication of this expectation of privacy limits the ability of the photograph to take a photo of them. Areas and public spaces that automatically suggest the expectation of privacy include changing areas, bathrooms, and medical facilities. Hence, if a photographer wishes to take a photo of someone in one of these areas, it is imperative that the photographer obtains permission beforehand.
Children and accidents
Another common situation where photographers are often confronted is when taking photos of children in a public area or an accident.
As long as the photographer is in a public place, the photographer usually has legal permission to take a photograph of the following;
- Commercial buildings
- Industrial facilities
- Residential units
- Transportation facilities
- Public utilities
- Criminal acts
- Superfund location
- Law enforcement
It is however important to note that if the photographer is touring a location with a general rule prohibiting photography, the photographer is obligated to abide by the rules.
Common photography law violations
Fear is one of the most common reasons for people to confront a photographer. This fear is most common in parents who likely are not aware of who the photographer is and as a result, they are uncomfortable with a stranger taking photos of their child or ward. Being in a public area does not reduce the caution of parents.
Similarly, law enforcement agents as well as security guards and employees may also attempt to prevent photographers from taking photographs. Typically, a security guard should have no legitimate reason to prevent a photographer from taking a photograph. When a photographer takes a photo of a business, the photographer is not in violation of a trade secret, neither is the photographer a threat to national security. When a photographer takes photographs of accidents, disasters, or other issues of public interest, it does not constitute a crime or an act of terrorism. However, the photographer should remember to stay on public property at all times.
Most law enforcement agents will not attempt to prevent a photographer from taking photographs because they recognize the photographer has the right to take photographs in public. However, a photographer may be prevented from entry into certain areas if it will lead to issues for the parties involved.
Dealing with a conflict
As a photographer has the right to take photographs in a public area, all the people in the public area also have the right to approach the photographer and enquire as to what they are doing. It is in the photographer’s best interest to hold a civil conversation with curious members of society to continue to take photos while reassuring other people within the area. The photographer may also attempt to prevent a misunderstanding and keep any situation from escalating by divulging slight information about what they are doing in case of conflict. If the photographer is being addressed violently, however, they may choose to defend themselves and leave the area. It is important to note that each state has its laws about what actions constitute harassment. Also, when harassment becomes persistent without any apparent reason, it could be considered a crime.
If the photographer or their equipment is threatened, the photographer may ask some basic questions to record information that may help them protect their legal rights. The basic information includes:
- The name of the other party.
- The name of the employer of the other party.
- If the other party appears to be a law enforcement agent, the photographer should ask if they are free to leave or if they are being detained.
- The photographer should ask for the legal basis for the other party’s attempt to detain them.
- If the other party attempts to take the photographer’s camera, the photographer should ask for the legal basis for attempting to confiscate their equipment.
For harassment to be termed criminal harassment, the actions or behavior of the other party must make the photographer fearful.
NOTE: It is important that the photographer takes note of the standard to measure fear. This standard is known as the “reasonable and prudent person” standard.
It means that a reasonable and prudent person going through the same treatment as the photographer would have reasonably felt fear. This reasonable fear must be for the physical safety of the photographer, the safety of the equipment of a photographer, or a fear of being wrongly accused of committing a crime.
A private citizen has a very limited ability to detain the photographer. In the event that a photographer is detained against their will, the photographer has grounds to press for criminal or civil charges. While a private citizen may carry out a citizen’s arrest, it is important to note that the grounds for such an arrest are extremely narrow. A citizen’s arrest is usually made in cases where another crime or felony is being committed in the presence of a private citizen. If a private citizen attempts a citizen arrest outside of these grounds, the citizen may be subject to charges for false imprisonment.
Private citizens, as well as store owners, do not have any right to confiscate a photographer’s equipment, delete or review a photographer’s photos. The only exception to this rule is if the private citizen or store owner can present a court order stating otherwise. If a private citizen chooses to confiscate a photographer’s equipment, the private citizen could be liable to face the consequences in the form of criminal or civil charges.
Law enforcement and photographer’s equipment
If a photographer is taking photos of an occurrence in a public area, an accident, or a fire incident, for instance, a law enforcement agent has no right to seize the photographer’s equipment, nor do they have any right to demand to review the images the photographer has taken without a warrant. While the law enforcement agency may attempt to seize the photographer’s equipment without arresting them, the law enforcement agency has no legal right to look at the images on the equipment without producing a valid warrant, neither do they have any legal authority to compel the photographer to delete any images. If a law enforcement official confiscates a photographer’s phone or camera, the law enforcement agent may be held legally responsible for claims of theft, coercion, or even conversion.
If a photographer is harassed for taking photographs, the photographer may be able to press civil or criminal charges against the other party.
The court may choose to punish the other party in some way if they are found guilty of the charge pressed against them by the photographer. This is referred to as a legal remedy.
The court is required to hear from all involved parties and determine if the photographer is entitled to legal remedy. The legal remedy would depend on the actual reason the photographer has for suing as well as the severity of the offense under the law. It is important that the photographer contacts and discusses it with an attorney as there is no guarantee of how the court would handle the photographer’s claims.
If a photographer is harassed and detained while taking photos, the other party may meet the legal standards for false imprisonment first or kidnapping. The photographer may call the police if they are being harassed. In a situation like this, the photographer should ask an officer to ensure that they get an informational report taken. The photographer should take note of the report number.
If the photographer is taking photos near a business and they are harassed by an employee of the business, both the employee and the employer may be held accountable in a court of law. Claims like this typically include conversion, false imprisonment, assault, coercion, or violation of the photographer’s constitutional rights.
Helping Photographers with Legal issues
In addition to seeking justice by pressing criminal charges against people who harass photographers when taking photos, photographers can do a few other things to bring awareness to the subject of harassment and help educate other photographers.
The photographer may choose to contact magazines, newspapers, and other news outlets and enquire if they’re interested in publishing or broadcasting a story involving the violation of civil liberties. If the harassment involves a business, the photographer should write a letter and send the letter via certified mail to the owner of the business, the corporate office, and any other party who may be interested in knowing how the photographer was treated.
This approach is particularly effective if the business has a public relations office. The photographer may also use the internet to their advantage by finding the social media pages related to the business and alerting them to what has happened. The photographer may also use their social media outlets, forums, and blogs to spread awareness about the occurrence.
Following are a few key takeaways of the article:
- The photographer must educate himself about the legal considerations while clicking the photographs in public
- The photographer must get permission first before taking pictures including a third party.
- In case of a conflict, the photographer may use their best judgment and tries to minimize any risk of violence against their equipment or their person.
- It is the responsibility of the photographers to create awareness about their legal rights them and their fellow photographers.