Generally, if you can see it from a public place, it’s shootable and publisheable..don’t let any cop/person take your camera or film/tape. If they do, contact lawyer Krages below. Andrew Kantor explains more below.
A blogger I know shot a picture in an office building. One of the tenants had boxes of medical records sitting around in an unlocked office, visible from the hall. He published a picture of the boxes, which started a little brouhaha: He didn’t have permission from the building’s landlord, someone said, so he wasn’t allowed to take or publish the photos.
That turns out not to be the case.
What I discovered is that a lot of people have ideas — often very clear ones — of what is legal and what isn’t, based on anything from common sense to wishful thinking to “I always heard…”
Trouble is, they aren’t always right. If you’ve got a digital camera and like to shoot in public, it pays to know the real deal.
So I went looking for it. I checked with the Reporters Committee for Freedom of the Press and found its Photographers’ Guide to Privacy.
The Missouri Bar has a terrific Journalists’ Right of Privacy Primer by attorney Mark Sableman.
Bert P. Krages, an attorney in Portland, Ore., and author of the Legal Handbook for Photographers, has a short but excellent PDF document called The Photographer’s Right.
I also had e-mail conversations with both Mssrs. Sableman and Krages (who were both careful to point out that they were only speaking in general terms, and not offering legal advice).
Finally, I got some background from the American Law Institute’s A Concise Restatement of Torts on the Harvard Law website.
Of course, I’m not a lawyer; in this case I’m a researcher. But lemme tell you: All these sources jibed, which I take to be a good sign. Just don’t take this as legal advice; it’s one columnist’s researched understanding of the law.
If you can see it, you can shoot it
Let’s get the easy stuff out of the way. Aside from sensitive government buildings (e.g., military bases), if you’re on public property you can photograph anything you like, including private property. There are some limits — using a zoom lens to shoot someone who has a reasonable expectation of privacy isn’t covered — but no one can come charging out of a business and tell you not to take photos of the building, period.
Further, they cannot demand your camera or your digital media or film. Well, they can demand it, but you are under no obligation to give it to them. In fact, only an officer of the law or court can take it from you, and then only with a court order. And if they try or threaten you? They can be charged with theft or coercion, and you may even have civil recourse. Cool. (For details, see “The Photographer’s Right.”)
It gets better.
You can take photos any place that’s open to the public, whether or not it’s private property. A mall, for example, is open to the public. So are most office buildings (at least the lobbies). You don’t need permission; if you have permission to enter, you have permission to shoot.
In fact, there are very few limits to what you’re allowed to photograph. Separately, there are few limits to what you’re allowed to publish. And the fact that they’re separate issues — shooting and publishing — is important. We’ll get to that in a moment.
You can take any photo that does not intrude upon or invade the privacy of a person, if that person has a reasonable expectation of privacy. Someone walking in a mall or on the street? Fair game. Someone standing in a corner, looking at his new Prozac prescription? No. Using a long lens to shoot someone in an apartment? No.
Note that the limits have nothing to do with where you are when you take the shots; it’s all about the subject’s expectation of privacy. You can be on private property (a mall or office-building lobby), or even be trespassing and still legally take pictures. Whether you can be someplace and whether you can take pictures are two completely separate issues.
Chances are you can publish it
Publishing photos has some different restraints, although they’re civil, not criminal. Break one of these “rules” and, while you won’t go to jail, you could find yourself on the short end of a lawsuit. (Although, according to the Reporters Committee for Freedom of the Press, “the subject’s remedy usually will not include the ability to bar the publication of the picture.”)
Revealing private facts about someone is a no-no. As the American Law Institute put it, “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that A) would be highly offensive to a reasonable person, and B) is not of legitimate concern to the public.”
Here the private property issue comes a bit more into play. Publishing a recognizable photo of someone at an AA meeting could be a problem, even if that meeting is open to the public. (An elected official, perhaps, but not of Joe Citizen.)
You also can find yourself in civil court if you publish a shot that places a person in a false light. That might be more of an issue with the caption than with the photo; running a shot of the mayor and his daughter labeled “Mayor meets with porn star” could land you in hot water. (Assuming his daughter isn’t a porn star.)
Finally, you can’t use someone’s likeness for a purely commercial purpose — using a photo of someone in an ad, for example. That isn’t to say you can’t publish a photo in a commercial environment, such as a newspaper or a blog that accepts ads. If the photo is being used in a news or artistic sense as opposed to a commercial one you’re OK.
Risk factors
The fact that taking a photo and publishing it are separate things might go against some folks’ common sense.
Let’s say you’re banned by the local mall for taking photos there, but you go back anyway and take more. Now you’re trespassing. But unless the photos you take violate someone’s expectation of privacy, your taking photos isn’t illegal — only being there.
That said, if you’re arrested and convicted, a judge might use the fact that you were taking photos to increase the penalty, but shooting on private property isn’t a crime in and of itself. As one lawyer told me, “I don’t see why the act of trespass would turn something that occurs during the trespass into a tort if it wasn’t one already.”
There are some other risks to taking and publishing ‘problematic’ photos. But, as you’ll see, they’re easy to avoid.
Trespassing is an obvious problem. If you’re not supposed to be someplace — you see a sign or you’re told by the property owner, for example — you can get arrested. Sure, you might be able to publish the photos you take, but Web access from jail is limited. (Trespassing is almost always a misdemeanor, by the way.)
You might be charged with your state’s variation of intrusion — using technology (e.g., a long lens, hidden camera, or parabolic microphone) — to access a place where the subject has an expectation of privacy.
Beyond trespass, the major risks you run are civil, not criminal. You can lose an invasion of privacy lawsuit if your photographs reveal private facts about a person that are offensive and not newsworthy when the person had a reasonable expectation of privacy. Ditto if they place the person in a false light, or inappropriately use the specific person’s image for commercial purposes, e.g., stating that the mayor endorses a product by publishing a photo of him using it.
All of this should be good news for amateur and professional shutterbugs. Carry your camera, shoot to your heart’s content, and know your rights — and your risks.
Andrew Kantor is a technology writer, pundit, and know-it-all who covers technology for the Roanoke Times. He’s also a former editor for PC Magazine and Internet World. Read more of his work at kantor.com. His column appears Fridays on USATODAY.com.
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