The Photographers Right
Your Rights and
Remedies When
Stopped or
Confronted
for Photography
February 2003
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 available 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 own-
ers 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. A significant one is that
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 designated
nuclear 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
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 and
unwanted conduct done without a
legitimate purpose is a crime in many
states if it causes serious annoyance.
You are under no obligation to answer
such questions in any state and do not
have to disclose your identity or the
purpose of your photography.
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 citizens arrests, such
authority is very narrow. In general,
citizens arrests can be made only for
felonies or crimes committed in the
persons 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 Confiscate
Your Film
Sometimes agents acting for entities
such as owners of industrial plants
and shopping malls may ask you to
hand over your film. Absent a court
order, private parties have no right to
confiscate your film. Taking your film
directly or indirectly 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. Law enforcement officers
may have the authority to seize film
when making an arrest but otherwise
must obtain a court order.
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 dont 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 persons 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 they
assert for the detention?
4. Likewise, if they demand your film,
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. For
example, it does not cover important
issues such as publication and copyright. For more information about the
laws that affect photography, I refer
you to my book, Legal Handbook for
Photographers (Amherst Media, 2002).
This guide is not intended to be legal
advice nor does it create an attorney
client relationship. Readers should
seek the advice of a competent attorney when they need legal advice
regarding a specific situation.
published by:
Bert P. Krages II
Attorney at Law
6665 S.W. Hampton Street, Suite 200
Portland, Oregon 97223
[Link]
2003 Bert P. Krages II