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Photographers rights, learn everything

91
Created by Admin on Oct 29 2014

Is the title clear enough for you? If you don’t ever want to end up like Rocky with your face all swollen because some security personnel decided you were a national threat, or you want to be completely sure that you can take that shot of your favorite celebrity pissing in the garden, this guide is meant to give you some clarity over what you can and can’t do with your camera.

Security is a mayor concern in the world these days. Authorities are constantly in a state of alert, which means that it is likely that free expression can be thwarted in the name of safety.

Photographers DO have legal rights and as an artist you have to acknowledge them to have enough means to protect yourself against abuse.

Rules vary slightly from country to country, but general notions apply universally.

Can I take photos in a shopping mall?

photographer-detained-mall

  • Award winning photographer Scott Rensberger was arrested last year for taking photographs in a west Virginia shopping mall. Photo from http://nppa.org

Yes you can. That is, until a security guard or some representative of the mall’s administration asks you to stop. The mall is a private building, and as such, the owners or administrators have the right to ban photography on their premises. They usually argue security and copyright infringement reasons to justify photograph prohibition, but these reasons in the long run are pure bullshit.

Now, although mall personnel can ban you from photographing, taking photographs in the mall is by no means an illegal act and is not subject to any kind of reprimand whatsoever. Not that we at the Webdesignshock family want to encourage any uncivilized activity by our kind readers. No, not at all. But, as a tip, if you desperately need to take shots in a mall, you can exercise your right to go guerrilla creative.

You basically have two ways. One is to take your snapshots with a phone in a not so obvious way. Nobody will know if your taking a snap or dialing.

The second way is to take rapidly all the shots you need to take, until you are surrounded by a swarm of angry guards willing to use their pretty batons on your head.

Of course you can always go on the path of the good Mamma’s boy, be the Paul McCartney of your band and ask for a proper permit days ahead of your assignment.

Can I take photos in an airport?

Yes you can. But varying conditions may apply. An Airport is a private owned place with public access. Being a space with free public access makes it open to any kind of informal photography. But as it is still a private owned building, you are obliged to stop taking shots if the airport administration asks you to.

Also, security issues apply depending on the political thermostat of the time and the country you are in. The Patriot act, and the homeland security act in the United States expressly prohibit photography at security checkpoints. Iran, Venezuela and other countries have similar prohibitions that you should be aware of before using your camera.

If you are planning to do elaborate shots in an airport using a tripod, lights or models, you cannot take any pictures without a proper permit. In some airports it is completely free, and you just have to issue a petition letter. In others, a fee may apply.

planespotting

  • Many aviation and photography enthusiasts enjoy plane-spotting, which is the practice of taking photographs of tail numbers. As security measures have increased throughout the world, many of these hobbyists have been arrested. In early 2010, two English men were arrested near New Delhi because Police considered their practices “suspicious”. Photo taken from http://nycaviation.com

Can a security guard force you to delete your photos?

police-arrest

  • Amateur photographer Bob Patefield was detained for eight hours for taking pictures at Christmas celebrations in Accrington. Police considered his activities as “antisocial behavior” and asked him for his details. He was detained after refusing to give his information and filmed the whole arrest. You can check out the video here,

NO. Absolutely not! Not in a hundred years. No. No. No. No. Nay, Nein. non.

Did I forget to say they can’t?

Your camera and its content is private property and no one has the right to get hold of your shots or equipment. Taking or deleting your stock with no court order, be it directly through their greasy hands, or indirectly, by threatening with calling the police can constitute a criminal offense and can be considered as theft, and coercion. Damaging or copying your photos can even be subject of copyright infringement.

All that they can do is ask you to stop taking photographs. And you are obliged to stop. They can even ask you to leave and accompany you out of the premises if you are feisty. But under no circumstance can they do anything to your camera or your photos.

Only Law enforcement agents can get hold of your photographs and only in two explicit cases; one if they have a court order, and two, in the process of an arrest if you get caught in a felony.  But they cannot under any circumstance delete your photos because they would be damaging evidence. And that, as we have seen on C.S.I is illegal. TV educates after all eh?

Can private security detain you?

beware of dog

Photo taken from Moonfever’s Flickr photostream.

Private parties have very limited rights to detain you, and although citizen arrest is legal, taking photographs is no justified reason for it. They can detain you, but not for taking photographs. They can do it if you are trespassing, stealing, breaking property or doing something out of a “The Clash” lyric.

Harassment is a criminal offense and you have the right to not be bothered. By no means can a private security officer bully you or inflict damage to your precious body parts or equipment just because you are taking a photo. If someone has threatened or intimidated you because you were taking photographs, they may even be liable for such grave crimes such as assault, false imprisonment or kidnapping. In such cases you have civil remedies against such persons and their employers for which you may be entitled to compensation.

So next time you are tortured and kept blindfolded in a two square meter cell, now you know you can sue them when you escape.

Can law enforcement officers detain you?

photographer-detained-singapour

  • The famous case of a photographer of Chinese daily Lianhe Wanbao that was arrested and detained by police for one hour for taking photos of a flood. Police alleged “security measures” for handcuffing him. Photo taken from http://visaisahero.wordpress.com

Law enforcement agents can detain you only if you are doing something against the law. And in such a case they can confiscate your equipment and stock in the arrest. But photography is an art. And as such you have the right (and it must be a duty!) to perform art. There are no laws that say that you can’t perform art.

There is no general legislation against taking photos, laws that affect photographers are mostly about the subject of the photo and not about the act by itself of taking photos. Laws are made to protect the concept of property from being stolen or damaged. Property can be interpreted legally in many ways. It can be a persons’ image or privacy. It can be a person’s work (copyright), an entity’s reputation (trademark) or premises (land).

Neither the Patriot Act nor the Homeland Security Act have any provisions that restrict photography. But there are certain limitations that you have to be aware.

Commanders of military installations can prohibit photographs of specific areas when they deem it necessary to protect national security. Government entities like the U.S. Department of Energy can forbid photographs of infrastructure they consider would be a risk to expose. (Although if such buildings are publicly visible that means there are not a national safety secret after all and common sense dictates that they can be photographed.)

Only law enforcement agents are entitled to keep you from taking pictures and ban you from a certain location if they consider you are obstructing with their activities or endangering yourself and others. What they can’t do is prohibit you from taking pictures from another location.

Can I photograph people?

ernie-dingo

  • In may 2010, Australian actor Ernie Dingo considered taking legal action against a woman that was attempting to sell photographs of the actor taken in the shower. Photo from http://www.dailytelegraph.com.au

You can photograph anybody who’s is in public view and doing anything not considered private. People on sidewalks, parks, beaches and other public spaces are considered subject of legal photography.

But don’t get trigger happy, everybody is entitled to have a reasonable expectation of privacy, that is, to not be bothered either in public or not. Everybody has the right to be left alone. You can’t take pictures of people in a changing room, a health care facility or at the operating table.(Yuck!)

You can’t take photos of people doing things considered private, as showering, taking a dump or making love unless you have the proper permission to do that.

You can’t photograph people when they’re out of public view and in a private area, be it in a bedroom, a living room, bathroom or office. In many countries, persistent and aggressive photography of a single individual can be considered as harassment.

Voyeurism is also a concern in many countries as cell phones and other mobile devices are a peeping Tom’s dream. Indecent acts like “upskirting” or “downblousing are subject to legal action. So put that camera down!

Can I photograph children?

Yes you can take pictures of children without their parents permission, but as long as you are not invading the child’s privacy. And as long as your photos are for private use only.

You cannot give children’s photographs any commercial use, unless you have a model release signed by the minor’s parents or legal guardians. This includes family snapshots and other portraits of the sort where the children figure is an important and recognizable subject in the picture.

Child pornography is a delicate and sensible problem in society. When dealing with photoshoots that require bathing scenes of children or similar situations that can be interpreted as child nudity, it’s better that you consult your lawyer first. There is a famous case in Arizona, where a normal family dropped some digital photos to be printed in local Wallmart. In that batch of more than a hundred photos, there were eight photographs that depicted the couple’s children fooling around naked in the tub. The clerk of the printing facility thought they were inappropriate and turned them over to the police. That was a beginning of a long legal battle for the couple to prove they were not child molesters.

  • You can check out the full ABC report here.

Can I sell photos of ordinary people?

While it is legal in almost any case to take photographs, selling and publishing those photos is another ballpark. You can infringe several laws regarding privacy and copyright. Be aware you can be sued.

If someone is featured prominently in a photograph, (not incidentally) you have to ask that person for a release permit if you want to sell the photograph for publication. (you can check a model release form example here.)

In 2005, Los Angeles Times reported that Nestle company was ruled by a court to pay $15 million dollars because it used a model’s picture without taking care of the paperwork

The person has to give you the explicit permission to use that picture. If not, any recognizable subject in your photographs can take serious legal action against you if they consider your photo is damaging personally or financially.

You are ok to sell your photographs of people without any release forms if your photographs features unrecognizable subjects, (crowds for example) or your photographs have editorial, factual, and newsworthy purposes.

wedding

Marc and Sylvia Day sued the photographer they hired for their wedding, because they disapproved the shots he took. They won the legal action and were awarded for compensation. Taking photographs under hire does not exclude you of responsibilities. Photo taken from http://www.telegraph.co.uk

Can I photograph celebrities?

Yes. Celebrities in public view can be photographed. Laws apply as with any ordinary person. You are free to use those photos for private and educational purposes. You can even use the photograph for your website, if the shot does not hurt in any way the celebrities public image. That means if the subject is not private, embarrassing or malicious nor misleading.

contra-vampireweekend

  • Model turned celebrity Kristen Kennis sued he Band Vampire Weekend for using her photography on their latest album release “Contra” for $2 million dollars. The Band and the photographer who took the photo, Tod Brody, say they have the proper model release, but she alleges its forged. With celebrities, you never know.

Can I sell photos of celebrities?

No… And yes. For celebrities, their public image is their most precious asset. Celebrities live from endorsing many products and are paid big bucks for their fame. Commercial use of a celebrity’s picture without their consent is an infraction somewhat similar to copyright infringement. As crazy as it may sound, celebrities can protect their image as an author protects his work. This is known as “The right of publicity”.

The Right of Publicity prevents the unauthorized commercial use of a person’s name, image, likeness, reputation, or other characteristic aspects of identity. If you use or sell for advertising purposes the image of a celebrity, you’re in risk of contravening a prior arrange of image exclusiveness. The public cannot be misled by a false impression that a celebrity recommends or endorses products or services they have not approved.

“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”

— New York Civil Rights Law Section 50.

California, as many of you have imagined, is one of the most refined publicity laws. Civil code there even grants post mortem publicity rights for 75 years after death. The United States legislation is prone to curious and absurd cases, as it varies from State to State. The publicity laws that rule a certain person depend on the last state that person lived in before dying. One of such cases is the famous architect Frank Lloyd Wright. His heirs do not hold any post mortem exploitation privileges because he died in Wisconsin, where only living people have publicity rights.

And here comes the yes part. Albeit all these laws, you can still sell a celebrity photograph if it is a part of or the cause of a newsworthy event. And as celebrities are news all the time, that’s why tabloids exist.

paparazzi-arrested

  • Photographer arrested not for taking pictures of Nicole Riche, but for causing her car to crash. Photo taken from http://starcasm.net

Can I take photographs on the street?

americans-robert-frank

  • Funeral – St. Helena, South California from Robert Frank’s seminal work “The Americans” published in 1959. The book was made entirely from snapshots taken on the road in diverse cities from 1955 to 1956. Photo taken from Time magazine online.

Yes you can. In fact many famous photographers like Brassai, Robert Frank and Henri Cartier Bresson have made a name by doing incredible street photography. Any person can take photographs of any structure while on public premises as long as any specific legal ordinance prohibits it. A public space is considered as any place open to the public no matter if the entrance is free or charged. Shopping malls, theaters, banks and restaurants are examples of private owned public premises.

If you are planning to do more elaborate shots that require a tripod, models and lighting, you have to consult the local film commission to check out tariffs and additional permits. Some private locations open to the public like airports and museums also have special fees you must check previously to prevent unnecessary confrontations. Also, many public buildings of special interest have fees for commercial exploitation like Trafalgar Square and the Parliament in the UK or the National park system in the United states.

Nobody has the right to obstruct or impede you from taking a photograph while on public property. Public property is any open space or installation supported by tax payments and/or under central or federal government administration. Streets, sidewalks, public libraries and town parks are public property ground.

After the terrorist attacks on N.Y on 2001, there are many legal restrictions to open public areas. Some countries ban photography of public transportation facilities and vehicles and other countries ban photography at important government buildings. In the United States for example, the filming of many high profile locations that are suspected of being targets of possible terrorist attacks is restricted like in the Verrazano-Narrows Bridge or the Chesapeake Bay Bridge. In such cases public signs are displayed.

In the UK, the “terrorist act 2000” and the “counter terrorism act 2008” (British lads a bit scared aren’t they?) pose serious and uncomfortable restrictions to free expression. Under those laws, amidst other insane bans, it is an offense to publish or communicate a photograph of a member of the armed forces, or a member of the security services, which in their opinion can be useful to a person committing or preparing an act of terrorism. If a law enforcement officer considers to have a “reasonable suspicion” they can detain you and get hold of your camera and photos. How about that?

Can I take photographs of accidents or crimes?

Yes. Taking shots at accident scenes and law enforcement activities is usually legal. Foremost if you are shooting with a Tele from another location. What is illegal is to disrupt and hinder the rescue or enforcement activities taken place. If the police tells you that you have to leave the premises, you must.

They have the total authority to make judgment calls whether your presence is obstructing their job or not. More so in the U.K where they have complete legal authority to detain you if they have a reasonable suspicion that you are a terrorist and your work has the intent of damaging people of property. But regarding specific cases, in general, accidents, fires or criminal police chases are considered newsworthy and can be used in fair use.

accidents-arrests

  • Photographing arrests can get complicated. In 2006, 21 year old Neftaly Cruz got arrested for taking photographs of a drug bust with his cellphone.

Can I take photographs of business?

Yes. Businesses, although private in nature, do not have a right to privacy, unlike the people inside them. You can take photographs of businesses, specially if you are shooting from private ground.

What you can’t do is use the photographs in a defamatory or malicious way. You can sell and use the photographs for news, criticism and editorial purposes. Be aware that you can’t photograph trade secrets that are hidden from public view, and you can’t reproduce a trademark and make it look like It’s yours or you are associated with it when you are not.Can I sell a photograph with logos and trademarks?

Copyright is the right to copy. It applies to every creation of the human intellect, be it a painting, a logo or a spaceship turbine. It is not the idea that you can copyright, but the tangible result itself. Without copyright, anyone would be free to use your work without any compensation. Copyright gives you the legal tools to defend yourself if anyone wants to attribute, steal or copy your work.

Logos and trademarks have copyright. And you are safe as long as they are present in your work as incidental, or in the boundaries of “Fair Use”. A company can sue you if they feel you have damaged their public image, if you have revealed secrets of their trade, or expressly exploited their brand commercially without their consent.

Commercial exploitation of copyrighted material under the Fair use concept is applicable. Fair use is a very complex concept and deals with the exceptions of copyright. You can read more here.

private_security

  • Photogapher Paul Lweis is questioned and bullied by Security guards for taking photographs of Gherkin Building in London. You can check out the video here.

Can I take photographs of buildings?

In Germany and other countries like Australia, there is a concept called Panoramafreiheit which means Freedom of Panorama. This is an exception in the copyright laws that allow taking pictures or creating other images such as paintings and 3D renders of buildings and sculptures which are permanently located in a public place without infringing any copyright that may subsist in such works, and to publish such images. Usually only the copyright holder has the exclusive right of authorizing creation or distribution of derivative works. This law is an exception.

This legislation varies greatly from country to country. There are many countries that have completely different laws, like Italy, where you cannot publish photographic reproductions of public or historic buildings without proper authority clearance. Other countries like Belgium and France have a mild Panoramafreiheit law where you can sell your photos if the buildings are depicted under incidental inclusion clauses.

In the United States, the copyright held in an architectural work does not include the right to prevent the making, distributing, or public display of paintings and photographs. This applies if the building is located in a public place or is visible from a public ground. However, when other artistic works are involved in the photography of a building, there could be a problem. If a work of art attached to or adjacent to the building you are photographing, or if you are just focusing your shot on that particular work of art, you will need to get permission from the copyright owner. If the artwork is secondary to the subject of the photograph, or is incidentally included, your pictures may fall into the area of “fair use”.

police-arrest-building-photo

  • Italian Art student Simona Bonomo was arrested and fined by authorities in London under section 44 of the terrorism act for filming buildings for her studies on modern architecture. You can watch the whole video here.

Can I take photographs at the museum?

ilegal-Sistine

  • Illegally taken shot of the Sistine Chapel in The Vatican city. as this is a stealth photo, you can see the quality is not much. Better buy the postcards. Photo taken from http://www.strictlynophotography.com

It depends on the museum, and on the exhibition. But the general answer is a big “NO” to commercial photography and a “maybe” to informal shots for private use only. There are copyright infringement, conservational and security reasons for this, although museums around the world are working around the issues to keep up with this new era of camera-per-pocket and Flickr sharing.

First off, museums must respect complicated and varied intellectual property agreements with donors and lenders. In any given exhibition, you could find that only a few art works are cleared for reproduction, which makes it difficult for the museum’s administration to control where and what to photograph. It’s easier overall to apply a general restriction.

Another issue museums have to deal with is the integrity of the art they behold. Paintings and sculptures may be damaged by flash photography and increased light levels.

So it’s better if you check the museums website before you break in shooting away everything at sight.

Can I take photographs in a court?

court-drawings

  • This is a depiction of lawyer Jon Schuyler Brooks questioning Gao Min in court. by artist P. Walsh. Photographs of trials are strictly prohibited and are a grave criminal offense. Photo from http://centralparkportraitexchange.blogspot.com/

It is completely illegal to take a photograph in any court of ANY person, be it the accused, the judge, a juror, or a witness. Ever wonder why tv news always shows those trial drawings? It is a criminal offense to register on video or photography any criminal proceeding. This includes photographs taken in a court building, or the precincts of the court.

15. Can I take photographs of a private house?

rumanian-embassy

  • No photography sign at the Rumanian Embassy in Kensington England.

Private property is any ground not open to the public. (buildings, offices, houses.) Property owners can legally prohibit you from taking pictures on their premises, but have no right from obstructing photographs of their property taken from other spaces, particularly public grounds. Of course there are some circumstances that you may reasonably assume that it is fair to take shots inside a private premise, like if you are at a wedding or at a press conference. In the majority of cases, it is a judgment call depending on the circumstance, but remember that if the property owner asks you to stop, you have to.

If a photograph shows private property in such a way that a viewer of the photo can identify the owner of the property, the ASMP (American Society of Media Photographers, Inc.) recommends that a property release should be used if the photograph is to be used for advertising or commercial purposes.

Why take the trouble to make a release? Things don’t have rights do they?

Well, people do. And people’s rights can be damaged by association with objects. For example, you could get angry if you found out that some drug addiction rehab program is advertising their services with a photograph of your house or your car… Or your dad in pajamas standing in the porch with his shotgun.

You could need a property release in those cases. Check out an example here.

Can I take photographs at the stadium?

sporting-events

The general rule is that you can’t since you could be giving away with your photographs material that people are charged to see, thus affecting their revenue stream. This allegation against photography is also used by theatres, cinemas  and museums. If people can film the event and broadcast it on the net…why should you pay a ticket to go? Although this is not completely true, (the experience of a live spectacle is not comparable to anything) it is true that event illegal broadcasting does hurt financially.

There are also copyright infringement issues. Every sports team has their logo and imagery tightly copyrighted. So it is ok if your photos are intended for private, educational and editorial purposes (if you are a credited photo reporter). But you can’t use them in any case for commercial and advertising intents.

When do I own a photograph?

Copyright applies to most artistic works, such as paintings, sculpture, Film, music and photography. Copyright laws give you the exclusive right to make and sell copies of the photo; to create derivative works (other art based on the photo); to display the photo publicly; and to license usage to third for profit.

Copyright is assigned automatically by international law. You own a photograph as long as you are the one that pressed the shutter-release and all intellectual property issues are cleared. (that means that you have all releases and you aren’t depicting any protected material)  Another story applies if you are a hired photographer working for somebody else. In that case your employer is the copyright owner unless you have made any special arrangement subscribed under legal contract.

Note that you make anything but private use with your photographs if you do not own them or have legal clearance to use them in any other way. Copyright laws are applicable 75 years after the author’s death.

Bottom Line

Paparazzi and bully guards are two sides of the same coin of intolerance. Both are the two extremes that cross the thin line between freedom of speech and the right to privacy. As a photographer, you have to be aware of what you can and can’t do and always act with clear and fair judgment. Be friendly and talk firmly at all times and for Christ sakes take it easy. Common sense and your technical now how are the your best tools you have to get your work done without getting into trouble. As a general rule, remember that if the subject has a gun, it’s always better to put the camera away and run.

This post is made as a general guide, but there are subtle changes from country to country and state to state. So don’t take this as legal advice and please don’t bother calling us from jail. :)

For the case when you’re working with people on the creation of commercial products, it’s necessary to get the person’s signature on a release form to keep everything inside the legal terms, here you can download four samples of release forms that you can utilize during your photo sessions.

Release form for non-studio situations

Release form for nude photography

Release form for adults photography

Release form for underage photography

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