Know Your Rights: Photographers

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Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply.

Your rights as a photographer:

  • When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society.
  • When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
  • Police officers may not confiscate or demand to view your digital photographs or video without a warrant. The Supreme Court has ruledthat police may not search your cell phone when they arrest you, unless they get a warrant. Although the court did not specifically rule on whether law enforcement may search other electronic devices such as a standalone camera, the ACLU believes that the constitution broadly prevents warrantless searches of your digital data. It is possible that courts may approve the temporary warrantless seizure of a camera in certain extreme “exigent” circumstances such as where necessary to save a life, or where police have a reasonable, good-faith belief that doing so is necessary to prevent the destruction of evidence of a crime while they seek a warrant.
  • Police may not delete your photographs or video under any circumstances. Officers have faced felony charges of evidence tampering as well as obstruction and theft for taking a photographer’s memory card.
  • Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations. Professional officers, however, realize that such operations are subject to public scrutiny, including by citizens photographing them.
  • Note that the right to photograph does not give you a right to break any other laws. For example, if you are trespassing to take photographs, you may still be charged with trespass.

Read more here: Know Your Rights: Photographers | American Civil Liberties Union.

There Are 8 Comments On This Article.

  1. As a litigator/lecturer on these topics we advise our clients/attendees that:

    The ACLU guidelines are pretty good EXCEPT note that you may not necessarily be able to publish photos taken from your own property or public property of private property. Photographing private property – and especially the interior(s) of private property and persons within/on that property – may subject the shooter to liability under state and conceivably federal law(s).

    The key is not whether you can “take a photo” but rather whether you can publish it without facing potential liability. The ACLU guidelines are fine when dealing with most police encounters but they do not apply to for example, state Ag-Gag bills, “intervention or obstruction of police activities”, photos of children, what a given state/judge/jury may determine to be pornographic, libelous or otherwise constitute a civil wrong or criminal act. etc. The ACLU provides decent general guidelines only.

    Also remember 1. When at a US border crossing (including. within 100 miles of one), airports and other facilities under Homeland Security/TSA the ACLU guidelines do not necessarily apply and 2. if shooting outside of the USA, transmit all images back to the USA so as to avoid the TSA or Homeland Secutiry from confiscating “for inspection” and possible unintentional deletion of images upon your arrival in the USA and 3. When leaving a foreign country we suggest that our clients transmit images back to the USA, confirm receipt of same and then delete any “objectionable” images you have shot in their country or in your possession and can arrest you before you get on the plane. Best advice is to have a “clean” camera and computer when you get to a foreign airport before coming back to the US of A where you have rights as referenced by the ACLU.

    Remember that in many countries possessing an “innocent” photo of two men kissing may constitute a criminal act on the photographer’s part in a given foreign country. No reason to have such an image on any device that can be viewed by that country’s law enforcement personnel. If you are lucky you pay a bribe to get out. Sometimes the alternative is “retention” or “imprisonment” in a foreign land.

  2. This is great Rob – thanks. It’s important that people on both sides of such encounters be informed – photographers and law enforcement. Personally I will say I have had three different encounters with law enforcement in the last few months while taking pictures and all have been cordial and positive. I always treat officers with respect and understanding – they are just trying to do their job to keep everyone safe. In two of the three instances, when they were greeted with openness and respect they actually encouraged me to keep going once they found out what I was up to even though I was technically violating local rules. In the third situation, I was asked to leave a restricted area but allowed to stay in an adjacent area when I agreed to comply with the original request without resistance. Not all law enforcement are saints but neither are we photographers. Understanding the other person’s position in these situations is an easy way that problems can be avoided. Thanks again for bringing up this topic.

  3. Responding to a question sent directly to me:

    1. If you go to thecopyrightzone.com and search our article “We Don’t Need No Stinkin’ Warrant” you will see the federal cases which uphold warrantless searches of photographers of their equipment inclusive of phones. We include additional sources including the NY TImes and Fox News. None of this is “news” to litigators, criminal attorneys or immigration attorneys. So the answer is “No, a warrant is not required”; The law is the same for photographers, journalists, carpenters and plumbers when it comes to entry into the USA. Essentially, everything and anything brought in by anybody can be searched at or near of border point of entry.

    2. Note that the ACLU offers its OPINION by clearly stating that: “The ACLU does not believe that restrictions on photography in the public areas of publicly operated airports are constitutional”. The ACLU is not a court of competent jurisdiction and everyone -even lawyers – have “opinions”. Opinions do not equate to laws.

    Again, their guidelines are valuable but are only rough guidelines.

  4. First Amendment Rights/Artists Rights

    Your article addresses the right of photographers to make photographs but it does not discuss their right to publish the photos. There are two areas (both have to do with copyrighted material) that I would like to see addressed by somebody who actually knows the law. First, billboard or poster advertisements for products like Coke or Disney characters. I know you cannot make a photo of a bill board with nothing else in it and publish it but what it the photo includes two starving children against a sign of equal size advertising Disneyland or Coke. The content of the photo speaks in it juxtaposition to the copyrighted advertisment. Can the owner of the copyrighted material sure the publisher of a photo book or blog? Is it a copyright issue of a slander issue.?

    The second has to do with copyrighted street art, we see lots of photos of a person or a car infront of a wall of street art in which the street art takes up 80 per cent of the frame and a pedestrial is running or jumping or walking in front of the art. For the most part, in these photos, the over arching creative interest comes from the work of another artist. Does the street artist have recourse if the photo is published in a book or an a blog (not used in an advertisement). Further, what is the ethical responsibility of a photographer who photographs the work of a street artist and calls the photo his or hers? I would be very interested to see the reaction of the photographers who make these photos to a similar use of their own work. Say if I took a beautiful (copyrighted) photo of a beach sunset and superimposed my own characters over the photo would I own the rights to that photo. Is that alright? In other words I think there is a issue of artists rights that isn’t being honored by the photographer who make pictures that are dominated by the work of another person and then calls it their own.

    Where and when do you separate the question of first amendment rights from the right of an artist who creates a copyrighted work that is out in the public?

    Thank you for your consideration,
    Andy

  5. I just wanted to emphasize that this describes the situation in the US. Other countries might have different – and much more restrictive – regulations.

  6. Scott Bryant

    It is my understanding that civil liability related to publishing depends on the usage; that photos published for informational purposes, in the context of news, education, criticism, and artistic expression are fully protected by the First Amendment.

    Photographs used for commercial purposes (advertising, promotions, marketing, etc), however, may expose photographers and/or publishers to liability for misappropriation if the photos are used without the subjects’ or property owners’ permission.

    Is this correct?

    Also, it should be noted that First Amendment protection is strongest when there is communicative intent. Courts may find that taking photographs for “personal use” is an activity that may not be fully protected.

    In Texas v. Johnson, 491 U.S. 397 (1989), conduct related to expressive activity must possess “sufficient communicative elements to bring the First Amendment into play.” Later, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) stated that “To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.”

    In Porat v. Lincoln Towers Community Association, United States Court of Appeals, Second Circuit (2005), the court ruled that photographs taken simply for “aesthetic and recreational purposes” (the reason cited by the plaintiff) don’t meet the above requirements for First Amendment protection.

    In other words, to receive First Amendment protection, a photographer – if questioned – might consider stating that he or she has an audience to receive the intended photographic message, even if that audience might simply be family members or Facebook friends.

    Making photographs in public places is generally protected activity. And there are many who frequently conduct First Amendment “audits” to test the knowledge of law enforcement. If you want to avoid and de-escalate potential confrontations, however, I recommend being able to articulate one’s intent and be somewhat familiar with relevant caselaw.

    • The contents of your first paragraph are erroneous and contain a very popular mythconception.

      A copyright registered image may not be used without license solely because it is (allegedly0 being used for an editorial purpose. Were it otherwise no photojournalist, sports shooter or creator of any image could protect it. Editorial use does not equal fair use. Feel free to Google our cases regarding photos of Bo Jackson and Tupac Shakur which were used without license for “editorial purposes”. Bottom line, whether it is the NY Times, SF Chronicle, CNN or Time Mag. a registered image may not be used without license from the author except in those very rare circumstances where a fair use exception to the copyright law may apply. Go to thecopyrightzone.com and search “fair use” for a more detailed explanation.

      You are confusing the fact that you typically do not need a model release for an editorial use with copyright law. One has nothing to do with the other in this instance.

  7. Scott Bryant

    Some other considerations:

    Photographers should not only be familiar with potential restrictions on photographic activities based on criminal law, but they should be familiar with potential liability in civil law, as well. And it can vary from state to state.

    I cited “Misappropriation” above. Don’t allow your photographs to be used for commercial purposes without the permission of the depicted subjects or property owners. Get signed model or property releases if you’re not sure how your photographs might be used in the future. If you don’t do this, only allow editorial usage for your images.

    Your conduct can be considered in lawsuits. If you persistently violate someone’s personal space while making photographs, you might be found guilty of “Unreasonable Intrusion,” even in a public space. You should not get all up in a subject’s face without their consent. That’s common sense. The best, most intimate types of photographs are usually the result of a photographer generating a sense of trust between photographer and subject, anyway. (That’s my opinion, however, not a legal determination.)

    The conduct of paparazzi comes to mind. While public figures typically have limited privacy rights in the eyes of the courts, paparazzi cannot cross certain lines. They cannot make physical contact or impede movement. They cannot violate traffic and other safety laws. They cannot trespass on private property. And they cannot make photographs from adjacent private property – even if they have permission from the property owner – if the location of the subject is hidden from public view. However, it should be noted that most professional photography organizations object to state “paparazzi laws” because 1) existing laws already address this type of behavior, and 2) these laws tend to be overly broad and could potentially inhibit lawful photographic activities.

    Photographers should be aware of “False Light” intrusion.This is essentially the equivalent of photographic liable, and the criteria is essentially the same:

    1. The image must be highly offensive to a reasonable person.
    2. The photographer must have known that the image was false or misleading.
    3. The photographer acted with “reckless disregard” about the truth of the information.

    Poor or careless word association can often result in a law suit. For example, you might photograph a person who was arrested for indecent exposure at Mardi Gras, but you shouldn’t later use that same photograph to illustrate a story about drug arrests. Today’s social media can be problematic, especially with the proliferation of memes. Today, almost anyone can misappropriate a picture they find online and use it to illustrate a message, even if that picture is unrelated to that message. So be vigilant about copyright and secondary uses of your photographs. Even if you aren’t directly liable, you might find yourself named in a lawsuit for false light intrusion.

    Truth and accuracy might not always be a defense if a photograph unnecessarily embarrasses a subject, and you might find yourself on the wrong end of a lawsuit citing “Disclosure of Private Facts.” Again, meme culture in social media can be the source of such a suit. Courts will consider the public interest in publishing potentially embarrassing photographs. You must be able to articulate just what the public interest is.

    So, as a photographer, know your rights, but also understand the limits of those rights.