A Few Notes
Of course, this isn’t legal advice as given by a lawyer: these are simply the broad strokes by which a photographer’s rights are defined, as laid out by a fellow photographer who did some serious research. Do more of your research into your given country, or when possible, your state or city. Trust the laws as described by lawyers or government sources, and not merely articles such as these.
Also, think before you photograph questionable scenes. That telephoto lens zooming in on your neighbor’s window? Following police officers into a home invasion? Probably not the best ideas. Just because you can take a picture doesn’t mean that you always should. Extending courtesy to your subject, such as asking permission to photograph them, or if candid, informing them after the fact, are just nice things to do, even if you aren’t always strictly obliged - at the very least because it might prevent legal issues from being brought up in the first place.
It’s probably a good idea to carry around a printed version of your rights as a photographer in the country in question. This may sound silly, but whipping it out in a moment of crisis actually ends the argument occasionally.
Basis of Your Rights as a Photographer
In many countries, there is an important distinction made between simply photographing a subject, and then publishing the photograph. While photographing for your own pleasure is often allowed, publishing it, will more often run into trouble, particularly in how the photograph is contextually framed.
Photography and/or publishing of photography typically made on one of two grounds: privacy and security.
Photography is often legally perceived as an invasion of privacy if the subject(s) are somehow non-consensual. This is complicated by whether the photograph is taken from private or public property. Photography without consent on private property is more often considered a violation of privacy than on public property, which is more likely to be considered fair game for photographers as the subject has no reasonable expectation of privacy while in public. Additionally, publication of photography that humiliates or frames the subject in a false light in some way may be considered libel by many courts.
There are virtually no restrictions on photography taken with consent, either with permission from the owner of private property, or of the subject of the photo. But, it’s a good idea to acquire it, even if you’re not certain that you need it; explicit written permission is better than oral permission, which is in turn better than no permission, at the very least because you have evidence of consent if it ever comes up in court.
Security issues are more complicated. Many countries explicitly ban photography of military institutions and other places of especial security import. However, it’s often used as a blanket term by many in practice to simply prevent arbitrarily undesired photography by the public, regardless of whether it is on or visible from public property, a problem I will address later.
Photography is commonly defended on several grounds. That which is “newsworthy”, for instance, almost always wins out as it is taken for the good of the general public. Free speech rights, where applicable, or often fiercely defended, and by extension the right to artistic expression.
Rights in the US
The US provides photographers with a healthy dose of freedom, as guaranteed by the 1st Amendment Right of free speech. However, there are a few twists here and there. The following is assuming that you do not have explicit permission to take a picture of the subject:
You may take pictures while on public property. You may take pictures from public property into private property. Not even just that: even places that are open to the public, even if they are on private property, are OK. Malls, office buildings, all fair game. Cool, huh? The issue in the US comes down primarily to the subject’s expectation of privacy.
One caveat here: military institutions. These generally may not be photographed without some pretty high-level permission, and it’s not a good idea to test this. This is a direct security concern. That being said, any other security concern expressed by other individuals provides no ground whatsoever for cessation of photography. Vague 9/11 security concerns are not justification for ceasing photography. This includes most subways and railways, though again, some state restrictions may apply.
Now, publishing a photograph is whole other can of worms. As a photographer, you cannot publish photographers that reveal private facts about any individual or otherwise violate their intellectual property, even if it was taken given the previous criteria. This is especially true if it would offend the subject, or is not newsworthy or of public concern. How you frame the photo in its publication is also an issue, as if it puts the subject in an offensively false light, you can be sued for libel. Finally, using such a subject for purely commercial purposes, such as for an ad in a newspaper, as opposed to journalistic or artistic purposes, is not technically acceptable, especially where trademarked or copyrighted images come into play. These are all civil concerns, and not criminal.
That being said, if someone demands confiscation of your camera, you are under no obligation to give it to them. Period. The only caveat is when forced to do so by a court order, but that obviously can’t be done by a police officer on the scene. If they try to threaten you? Well, bluntly, you’re the one who can sue them for theft or coercion.
For an excellent laymen’s overview of US photographer’s rights, check out this article from USA Today.
For an article going through the legal basis for these rights, check out this free online book.
For a state-by-state overview of specific photography laws pertaining to them, check out this index.
For a print-out overview of your rights as a photographer, check out this site.
Still want more information? Check out this ever-growing list of resources with regards to photographer’s rights.
This post is part of the series: Your Legal Rights as a Photographer
This series covers the basic legal rights of photographers in different countries around the world, as well as providing links to important resources and a guide to thinking about the parameters of legality, such as the legal difference between photographing and publishing a photograph.