On The Street - Legality

George L Smyth

Occasionally I hear from photographers that it might be illegal to photograph people without their knowledge and/or consent. In nearly all cases this simply is not true. Time and time again the legal right to photograph has been affirmed in court. Arrington v. New York Times (http://bit.ly/1lrVuZ8) was a suit brought against the newspaper because an individual's image was used on the cover of their magazine against his knowledge and wishes, and in Nussenzweig v. DiCorcia (http://nyti.ms/1mw1rSN) a suit was brought against a photographer because a person objected to their image being placed within a show. In both cases (as well as others I have read) they were resolved in favor of the photographer.

One might believe that they wish to avoid a lawsuit at all cost, but frivolous lawsuits are simply a national pastime. Even taking pictures at a zoo can be trouble - a recent lawsuit against a photographer argues that the copyright ownership of an image taken when a macaque monkey grabbed a photographer's camera and started releasing the shutter should be given to the monkey (http://bit.ly/1vcjUtR). Top that!

Before getting too concerned, these cases are very rare. I have seldom had issues with people who did not want me to take their picture (http://bit.ly/VOaDre and http://bit.ly/1mIyD6G). Sometimes I explain my rights when this happens (sometimes I just walk away), but if you wish to diffuse the situation by offering to delete the image then that is your right (perhaps an advantage of shooting film is that removing the image is not an option).

The truth of the matter is that in nearly every instance, when on public property you are allowed to take a picture of whatever you wish when there is no reasonable expectation of privacy involved. For instance, standing on a sidewalk and taking a picture through the window of someone's house does not fall within this category, but pretty much everything else does. Keep in mind that I am talking about laws of the United States. If you are in a foreign country then you must understand and abide by their laws, which could be (and sometimes are) opposite of the rights to which we are accustomed.

Photographers sometimes get confused with the requirement to obtain a model release form. This is necessary when the image is to be used for advertising, but has nothing to do with fine art photography or documentation.

Below are five basic principles that can be applied.

1. When on public property you can photograph whatever you wish as long as there is no expectation of privacy.
2. Photographing from a public place is not a security issue nor is it a terrorist activity.
3. Private parties, including private security guards, cannot detain you unless a crime has been committed in their presence.
4. You are not obligated to provide your identity or reason for photographing unless questioned by a law enforcement officer, and state law requires it.
5. Private parties cannot confiscate your equipment nor force you to delete your images.

From an attorney's point of view, you may wish to download the document at http://www.krages.com/phoright.htm and carry it with you, as it explains your rights as a photographer. That said, in the time I have been photographing on the streets I have had interactions with people who did not like what I was doing, but I can count them on the fingers of one hand in the past dozen years, so 99.9% of the time this is not an issue.