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Photographing People In a Public Place - What is the Law?

By
Real Estate Agent with Real Estate Showcase Photography



Photography In a Public Place - What is the Law?



Comments in a recent post got me curious about this question. So I did what I always do when I want to know something - I went online to research it.

Interestingly, there is a ton of information online on the subject. It is hard to wade through what might be law, and what might be someones opinion. But this is what I filtered out.

A photographers' right to take photographs, and publish them is protected by the First Amendment as freedom of expression, and as part of freedom of speech.

A public place is defined as a place in which the general public has access. Private property can be a public place, such as a museum, a mall, or a park. You can be denied in a public place if it is on private property.

Anything, or anyone that can be seen in a public place can be photographed. Including children. There are no laws restricting the right of a photographer to take photos of anything in public view.  There is no assumption of privacy in public. Anyone can be photographed without giving permission, unless they are in a place where there is a reasonable expectation of privacy, such as restrooms and medical facilities.

I did not know this. When I was in Mexico, I took this photo of a little girl. I asked, and got permission from her mother to photograph her.  I've always loved this photo, especially the ketchup on her chin and the sand in her hair. But I never knew until now what the laws were regarding posting it.

Little Girl in Mexico


Releases or any other form of permission are not required to photograph subjects in public view.

Photography of a person for a commercial use is defined as 'advertising', where one is using the photo to sell something else. Commercial use does require a release for publication.

You can photograph someone on the street, and sell the photograph in a studio or gallery, or anywhere else without a release. Editorial use, publishing as part of a written work, is also permitted without a release, as in magazines, and on the internet.

When is it not Legal?

When you are trespassing on private property. You may however, stand in a public place, and photograph a private one.
In a public restroom or dressing room.
Of a person through the windows of their own home.
Where there are "No Photography" signs, taking photos is not illegal, but may be considered 'tresspassing'.
Where National Security may be at stake, and photography is forbidden by law.
Where your images are used to libel, defame, or slander another.
Where your image is of a copyrighted image, design, or logo, and used for monetary gain.

And according to the American Law Institute:
"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."


What are your rights as a Photographer?

If confronted, know that you may not be detained, harassed, be forced to delete images, or have your equipment taken from you without it being a violation of your civil liberties. Anyone doing so may be subject to criminal and civil prosecution.

Law enforcement is not allowed to force you to delete your images, or confiscate your equipment without a court order or warrant, (unless you are being arrested).

Private citizens may not harass you, or touch you or your equipment without the risk of being charged with assault.

So, why is this important to know?

Because we live in a democratic society, where our rights are protected by law. Because in many other countries in the world, even democratic ones, the rights of photographers and journalists are routinely being denied and coming under abuse.

And because you don't want to find yourself in an expensive and unnecessary lawsuit.

 

 

Disclaimer: This does not constitute legal advice. I am NOT an attorney! Anyone seeking legal advice should consult an attorney.



Sources:
http://quazen.com/arts/photography/the-war-on-photography/

http://photography.suite101.com/article.cfm/taking_photographs_and_the_law
http://www.krages.com/ThePhotographersRight.pdf
http://ambientlight.ca/laws.php#You_are_guaranteed_the_right_to_take_photographs
http://www.usatoday.com/tech/columnist/andrewkantor/2005-12-29-camera-laws_x.htm
http://photography.suite101.com/article.cfm/using_photographs_and_the_law

 

 

 

Comments (125)

Debi Boucher
Real Estate Showcase Photography - Woodland Park, CO
"Realtor Showcase" - Real Estate Photography/Virtual Tours

Georgina - Thanks - Go for it!

Suzi - Great marketing technique! ;)

Debi

Jan 28, 2010 01:50 AM
Gerry Khatchikian
Red Lodge, MT
ASA, TRC, SFR

Debbie,

Thank you for this educational post.  I had always wondered about taking photos (when my subjects are unsuspecting persons rather than wild animals) in public.   Thank you for taking any doubts I had away.  The photo of the little girl in Mexico is priceless!   Way to capture the interesting and unexpected details!

Jan 30, 2010 04:35 AM
William Johnson
Retired - La Jolla, CA
Retired

Once again we are so on the same page. I read about this last night. You are so Good! and this post is most worthy of having our highest award, the ActiveRain Photo Blogger Award of Merit. Congratulations Debi. It is especially wonderful that ActiveRain also recognized this wonderful post and made it a Featured Post!

This post is Featured in the Active Rain PhotoBlogger Group!

 

 

Jan 31, 2010 10:18 AM
William Johnson
Retired - La Jolla, CA
Retired

Hi Debi,

I was reading Perterson's Big Book of Photography and Digital Photography Guide late last night as I was trying to catch up on my reading. He was discussing this topic in it's relationship to the need for hiring models for certain photo shoots. I make it a rule of thumb not to use a person's image in my photography, not even friends or family, at least up to this point. It would be a great idea to have release forms with us in the event we would ever need them, especially if there was even a slight doubt about how public something is or isn't. Your post is excellent and it made me think of the Release Form. To always have a couple in the equipment bag, just in case.

Jan 31, 2010 10:32 AM
Anonymous
Consumer Reader

Wow. Thank you for posting this. I will finish reading the comments at a later time. I find it distressing that I don't have the right as an individual to withhold permission to be photographed in a public place. 

Assume somebody takes a photo, maybe of that cute child you have posted. The photographer posts that photo in a public forum, say a blog site. Someone else asks and is granted permission to use that photo, and years later includes it as art in a brochure. My point is that once a photo is out there, there is no control over what is done with it. BTW, AR is a commercial enterprise. You would not be here if you did not intend your blogs to increase your business.

Feb 12, 2010 04:36 AM
#110
Debi Boucher
Real Estate Showcase Photography - Woodland Park, CO
"Realtor Showcase" - Real Estate Photography/Virtual Tours

Dear Consumer Reader -  I am quite certain a number of celebrities feel just as you do, perhaps many criminals as well.

It is correct that is very difficult to control the use of a photograph once it is posted online. There are countless numbers of copyright thieves scanning the web at any given moment in order to make use of something that does not belong to them. It is nearly impossible to be certain one's work is not stolen.

A commercial enterprise, and commercial use of a photograph are not defined in the same way. A photographer who has an online presence, and sells their work, is a commercial enterprise. Commercial use of a photograph is defined as "advertising". As in TV commercials, or print ads used to promote a specific product. Let's say for instance, if I were to use this photograph to promote the sale of my new ketchup on a billboard along the highway. If I chose to use it in this way, I would be required to have a release from my 'model'.

Editorial use of a photograph, as stated above, is defined as being used as part of a written story, such as in a magazine, or online, as it is used here. This is the same law that protects journalists.

I didn't write the law - I only wrote about it!

Thank you for taking the time to comment :)

Debi

Feb 12, 2010 09:47 AM
Loreena and Michael Yeo
3:16 team REALTY ~ Locally-owned Prosper TX Real Estate Co. - Prosper, TX
Real Estate Agents

What a wealth of useful information. Thanks for taking the time to share this and including the sites for your sources. I really appreciate it. I know my rights better now as a photographer.

Sep 22, 2010 06:05 AM
Joan Valverde
HomeSmart - Colorado Springs, CO
GRI,CDPE,CNE,MRP,SRES Colo Sprgs, Blk Forest, Monu
Debi, thank you for posting this good information. It is always good to find such useful info on our AR. Thank you for the time you put into this.
Sep 22, 2010 05:49 PM
Bob & Leilani Souza
Souza Realty 916.408.5500 - Roseville, CA
Greater Sacramento Area Homes, Land & Investments

Debi, thanks for writing such an AWESOME blog post about your rights as a photographer...I just re-blogged it! :)

Leilani

Sep 22, 2010 06:32 PM
Jim Hale
ACTIONAGENTS.NET - Eugene, OR
Eugene Oregon's Best Home Search Website

Debi -

I like your post, but to think that posts here in AR are not advertising seems incorrect to me.

 

I believe what we are doing here is commercial speech.  That's why Lenn Harley is successful in suing people who use her maps. 

It's my understanding that, if you use someone's photo or artwork here without permission, you have violated their copyright because ours is a commercial use.

 

Please tell us where in your research you learned that we are not.

Sep 22, 2010 11:31 PM
Debi Boucher
Real Estate Showcase Photography - Woodland Park, CO
"Realtor Showcase" - Real Estate Photography/Virtual Tours

Hi Jim, What we are discussing here are photos taken by YOU, not other peoples' photos or artwork, such as Lenn's maps, which is most certainly a copyright violation.

(Why is this older post suddenly getting renewed attention? LOL)

Sep 23, 2010 03:43 AM
Georgie Hunter R(S) 58089
Hawai'i Life Real Estate Brokers - Haiku, HI
Maui Real Estate sales and lifestyle info

Wow what a lot of good information!  Thanks Debi.

Sep 25, 2010 11:58 AM
Maureen McCabe
HER Realtors - Columbus, OH
Columbus Ohio Real Estate

Someone gave a link to this on a post about whether photographs on blog posts  are disrespectful.  Not photographs of people but I am glad to read this or reread it. 

Oct 18, 2010 04:25 AM
Wendy Hayden
Photographer, Home Stager, ePRO - Richmond, VA
Chesterfield, Richmond & Powahatan

I am especially pleased to know that I won't get in trouble for taking photos of children.  I have kids and often blog about events that we attend and take tons of photos and videos of the events.  Glad to learn that I won't get arrested for it!

Oct 18, 2010 04:47 AM
Debi Boucher
Real Estate Showcase Photography - Woodland Park, CO
"Realtor Showcase" - Real Estate Photography/Virtual Tours

Hi Maureen - Can you include the link for me? I'd like to read the post :)

Wendy - Yes, getting arrested would stink - BIG time! LOL

Welcome, Georgie!

Oct 18, 2010 05:18 AM
Anonymous
tim williams

Hi Debi,

Nice blog and nice work!

I had somewhere seen a law that prohibits photographing people coming or going from health clinics or hospitals - even if taken from or at the public, exterior of the building.

I cannot now find this law. I think it was part of the Patient's Rights Act,  HIPA or other.

Have you come accross this?  

 

Mar 05, 2011 03:45 AM
#121
Debi Boucher
Real Estate Showcase Photography - Woodland Park, CO
"Realtor Showcase" - Real Estate Photography/Virtual Tours

Hi Tim,

No, I had not heard of this law, but it sounds reasonable it may be a part of one of the two you mentioned. Let me know if you find out more.

Debi

Mar 06, 2011 08:59 AM
Anonymous
Rachel
What about teenagers who take pictures of themselves appropriately dressed but in a public restroom and cover themselves with toilet paper and stand on counter tops. What is the consequence for that?
Sep 04, 2011 06:09 PM
#123
Anonymous
Mike

Here's something I'd like to know. I work for an auto parts store as a manager. Recently, I have been suffering with allergies. It's Arkansas in spring - tons of pollen.

I have an employee that would like nothing more than to see me fired. Last week, I used nasal spray to clear my head and fight a sinus headache. She took a picture of me with my head back waiting for the spray to work. In the picture, I look like I'm asleep but I'm not. She is representing that I'm sleeping on my job. I feel violated and angry, especially because she forwarded hem to the upper management after sharing them with my fellow workers. 

What can I do about this? I'm about to lose my job and I need to fight this. This is a complete fabrication. The company policy states NO Cell Phones but they are allowing it. I really need help. I'm in a redneck town but the company is a Fortune 500 corporation.

Thanks

Mar 28, 2012 11:59 AM
#124
Debi Boucher
Real Estate Showcase Photography - Woodland Park, CO
"Realtor Showcase" - Real Estate Photography/Virtual Tours

I am sorry Mike, I cannot advise you - you really need to discuss this with an attorney.

Mar 28, 2012 12:36 PM