On public streets and sidewalks, as well as public parks and truly public property, you can whip out your camera and photograph whatever you see. People walking down the street, a big government building, kids playing on the playground… If you’re not trespassing on private property, and if the subject has no reasonable expectation of privacy (i.e. they’re not inside their home with the window shades drawn) then you’re in the clear.
Standing on the patio of a restaurant, however, or the stairs of a large downtown office building, you may be unobtrusive but you’re definitely on private property. If the property owner doesn’t want you there, you have to leave. Otherwise you may be arrested for trespassing. So if you want to photograph in this sort of privately owned space, you should either ask permission or understand that you may—and likely will—soon be asked to leave.
But what about government buildings and “sensitive” subjects such as public transit and public utilities? Yes, after 9/11 there was a relatively brief period where some facilities were off limits to photographers. And they still may be, at least inside. But as viewed from a public place, federal law says you can photograph these buildings and places. After all, from a public vantage point you’re not seeing anything different than everybody else on the street.
Private property, such as a home or a business, is a little bit different. Yes, you have every right to photograph it from a public space. But when it comes time to publish it, you may need permission. More on that a little later.
Even the kids on the playground? Yes, you can photograph kids on the playground. You see, in public, we have no right to privacy. So you’re not infringing on anyone’s rights by pointing a camera at them. That doesn’t mean, however, that they’re going to be happy about it. So instead of appearing like a creeper in the bushes pointing your telephoto lens at kids in the park, you might instead be better served by asking a parent’s permission after explaining what you’re doing. But this is a courtesy, meant to keep people from getting upset. It’s not the law.
If someone harasses you and asks you to stop taking pictures in public, you’re probably best served to comply simply to placate an angry person. (See, for instance, the YouTube video of the unstable man in a big pickup truck threatening a photographer for taking pictures on a public roadway that he insists is his driveway.) First extract yourself from a dangerous situation, then call the police to let them know someone is harassing you while you try to take pictures in a public place.
Police themselves are sometimes uninformed about the legality of photography. Or, in some cases, they may know the rules but want to question you anyway. Not long ago, an officer for Homeland Security stopped me because I was taking a photo of a light rail station from a public sidewalk. He was friendly and polite, and just wanted to know what I was doing. Still, it’s a shame that photographers are put in positions where they have to choose between what’s expedient and what’s right.
In fact, it’s almost never illegal to take pictures. The exemption to that, of course, is subject matter that is deemed illegal, such as child pornography. Short of that, though, you can’t be arrested for taking pictures. You may be arrested for trespassing, or interfering with an officer’s duty, or any number of other things that you shouldn’t be doing in the first place. But you will never be charged with taking pictures in a public place. It’s simply not illegal.
How an image is published largely determines a photographer’s legal exposure. You can, for instance, be sued by a subject who doesn’t like how you’ve used their picture. People have the right to preserve their own likeness for publicity purposes. Meaning, if you use their image in a commercial application, you’re legally required to ask their permission. The easiest way to show permission is by having them sign a model release. You should also, as a matter of course, actually pay someone in exchange for the commercial personality rights they are releasing to you. (Courts have even ruled that token $1.00 payments don’t constitute fair compensation. So really, consider your use and be reasonable.) In the end, a model release serves as your best defense if a subject decides they want to sue you for how you used their image.
The same publicity rights extend to a person’s private property. So if you photograph a home, for instance, for use in an advertisement for siding, you’ll need a release from the property owner (called, appropriately, a property release). Failing that, you’re bound to get sued for infringing on their publicity rights. Everyone has the right to determine how their face or their property is used for commercial purposes.
In short, remember that photography is not illegal. As long as you’re not interfering with traffic or obstructing an officer’s duty, you shouldn’t be asked to leave a public place while you’re taking pictures. How you use pictures, however, may require explicit permission. If it’s a commercial use, you definitely want the subject’s permission. But if you simply want to use a picture for editorial or artistic purposes, you’re in the clear.
For more on photographer’s rights, keep an eye out for an in-depth look at photography and permissions in an upcoming issue of Digital Photo Pro.