The Photographer’s Right
About this Guide
Confrontations that impair the constitutional right to make images are
becoming more common.
To fight the abuse of your right to free expression, you need to know your
rights to take photographs and the remedies avail able if your rights are
infringed.
The General Rule
The general rule in the United States is that anyone may take photographs of
whatever they want when they are in a public place or places where they
have permission to take photographs.
Absent a specific legal prohibition such as a statute or ordinance, you are
legally entitled to take photographs.
Examples of places that are traditionally considered public are streets,
sidewalks, and public parks.
Property owners may legally prohibit photography on their premises but have
no right to prohibit others from photographing their property
from other locations. Whether you need permission from property owner as
to take photographs while on their
premises depends on the circumstances. In most places, you may reasonably
assume that taking photographs is allowed and that you do not need explicit
permission.
However, this is a judgment call and you should request permission when
the circumstances suggest that the owner is likely to object. In any case,
when a property owner tells you not to take photographs while on the
premises, you are legally obligated to honor the request.
Some Exceptions to the Rule
There are some exceptions to the general rule. For example, commanders of
military installations can prohibit photographs of specific areas when they
deem it necessary to protect national security.
The U.S. Department of Energy can also prohibit photography of
designatednuclear facilities although the publicly visible areas of nuclear
facilities are usually not designated as such.
Members of the public have a very limited scope of privacy rights when they
are in public places. Basically, anyone can be photographed without their
consent except when they have secluded themselves in places where they
have a reasonable expectation of privacy such as dressing rooms, restrooms,
medical facilities, and inside their homes.
Permissible Subjects
Despite misconceptions to the contrary, the following subjects can almost
always be photographed lawfully from public places:
accident and fire scenes
children
celebrities
bridges and other infrastructure
residential and commercial buildings
industrial facilities and public utilities
transportation facilities (e.g., airports)
Superfund sites
criminal activities and arrests
law enforcement officers
Who Is Likely to Violate Your Rights
Most confrontations are started by security guards and employees of
organizations who fear photography.
The most common reason given is security but often such persons have no
articulated reason. Security is rarely a legitimate reason for restricting
photography. Taking a photograph is not a terrorist act nor can a business
legitimately assert that taking a photograph of a subject in public view
infringes on its trade secrets.
On occasion, law enforcement officers may object to photography but most
understand that people have the right to take photographs and do not
interfere with photographers. They do have the right to keep you away from
areas where you may impede their activities or endanger safety. However,
they do not have the legal right to prohibit you from taking photographs from
other locations.
They Have Limited Rights to Bother, Question, or Detain You
Although anyone has the right to approach a person in a public place and ask
questions, persistent andunwanted conduct done without a legitimate
purpose is a crime in many states if it causes serious annoyance.
You are under no obligation to explain the purpose of your photography nor
do you have to disclose your identity except in states that require it upon
request by a law enforcement officer.
If the conduct goes beyond mere questioning, all states have laws that make
coercion and harassment criminal offenses. The specific elements vary
among the states but in general it is unlawful for anyone to instill a fear that
they may injure you, damage or take your property, or falsely accuse you of
a crime just because you are taking photographs.
Private parties have very limited rights to detain you against your will and
may be subject to criminal and civil charges should they attempt to do so.
Although the laws in most states authorize citizen’s arrests, such authority is
very narrow. In general, citizen’s arrests can be made only for felonies or
crimes committed in the person’s presence. Failure to abide by these
requirements usually means that the person is liable for a tort such as false
imprisonment.
They Have No Right to Review Your Images or Take Your Gear Law
enforcement officers do not have the right to view your images absent a
warrant. They may have the authority to seize a camera or cell phone when
making an arrest but still must obtain a warrant to search the contents.
Likewise, they do not have authority to make you delete images.
Sometimes agents acting for entities such as owners of industrial plants and
shopping malls may demand that you delete your images or give them your
camera. Absent a court order, private parties have no right to do so.
Taking your camera or cell phone directly or by threatening to use force or
call a law enforcement agency can constitute criminal offenses such as theft
and coercion. It can likewise constitute a civil tort such as conversion.
Your Legal Remedies If Harassed
If someone has threatened, intimidated, or detained you because you were
taking photographs, they may be
liable for crimes such as kidnapping, coercion, and theft. In such cases, you
should report them to the police.
You may also have civil remedies against such persons and their employers.
The torts for which you may be entitled to compensation include assault,
conversion, false imprisonment, and violation of your constitutional rights.
Other Remedies If Harassed
If you are disinclined to take legal action, there are still things you can do
that contribute to protecting the right to take photographs.
(1) Call the local newspaper and see if they are interested in running a story.
Many newspapers feel that civil liberties are worthy of serious coverage.
(2) Write to or call the supervisor of the person involved, or the legal or
public relations department of the entity, and complain about the event.
(3) Make the event publicly known on an Internet forum that deals with
photography or civil rights issues.
How to Handle Confrontations
Most confrontations can be defused by being courteous and respectful. If the
party becomes pushy, combative, or unreasonably hostile, consider calling
the police. Above all, use good judgment and don’t allow an event to
escalate into violence.
In the event you are threatened with detention or asked to surrender your
film, asking the following questions can help ensure that you will have the
evidence to enforce your legal rights:
1. What is the person’s name?
2. Who is their employer?
3. Are you free to leave? If not, how do they intend to stop you if you decide
to leave? What legal basis do theyassert for the detention?
4. Likewise, if they demand your cam- era or cell phone, what legal basis do
they assert for the confiscation?
Disclaimer
This is a general education guide about the right to take photographs and is
necessarily limited in scope.
More information about the laws that affect photography can be found in my
book, Legal Handbook for Photographers (Amherst Media).
This guide is not intended to be legal advice nor does it create an attorney-
client relationship.
Bert P. Krages II Attorney at Law
6665 S.W. Hampton Street, Suite 200
Portland, Oregon 97223
[Link]
Your Rights and
Remedies When Stopped or Confronted for Photography