By James Booth
Since the events of September 11, 2001, many photographers have come under scrutiny, even to the point of being illegally detained and having their equipment seized. Merely for indulging in their passion.
In my daily coverage of photo-related news, I have read and reported on instances of photographers being detained, even arrested, just for taking pictures of bridges and other high-profile buildings, stadiums, and airports. Equipment is often seized, memory cars erased, film exposed. I have even read of equipment being destroyed. All in the name of the very complex issue that is "national security" in a post-911 world.
In the end, charges are always dropped, equipment returned, and photographers released. Why? Because the detention is illegal to begin with. In some cases, Homeland Security and the hysteria of terrorism must share the blame. To be fair, many of those with responsibility to serve and protect find themselves with a job bigger than they've been trained or equipped to handle. Many photographers report of problems with under-trained, misinformed, and overly gung-ho police officers and security guards.
Let's be clear: these people have difficult and potentially dangerous jobs and we rely on them to keep us safe. But photographers also have rights and responsibilities. Our goal with this article is to help you prepare for and defuse any potential conflict you may find yourself involved in.
One note: we're writing this as photographers, not lawyers. If you're really concerned about your rights, responsibilities, and legal limits in your neighborhood, check with a local attorney.
The myths
Many authorities will tell photographers that since September 11, it is illegal to take pictures of airports, refineries, bridges, etc. This is just plain false. In some instances, copyright or trademark infringement will be hauled out as the excuse.
Being informed and knowing your rights are the best weapons against the modern-day gestapo of overzealous law enforcement officials and psuedo-security guards. Having a good civil rights attorney couldn't hurt either.
Copyright and trademark
Let's cover copyright and trademark first, as it is the easiest and most clear-cut. U.S. copyright laws have an excemption for photographing buildings, and only structures built after 1990 can even be copyrighted. Which means there are darn few that actually are.
One of the most famous structures that actually is trademarked is the Hollywood sign. Its trademark is owned by the Hollywood Chamber of Commerce, although, how they managed to trademark the icon is beyond me, as it's been there for approaching a hundred years. In fact, it used to say, "Hollywoodland."
Where and when you can shoot
When it comes to the legality of what you can shoot, and where you can shoot from, it all boils down to this: as long as you are on public property and not interferring with or restricting traffic, you can photograph anything or anyone, anywhere, at any time, without permission, permit, or release. Even if the person or object is on private property, you can photograph it, as long as you are on public lands. Paparazzi do it on a daily basis. In fact, it's the legal basis of their entire profession.
There is no law in the U.S. that prevents you from photographing bridges, airports, etc. Yet in the interest of swelling their heads, puffing out their chests, and generally making themselves feel much more important than they actually are, many "officials" will trot out these nonexistent laws as an excuse to harass photographers.
One of the biggest areas of confusion is the ban on photographing federal buildings. There is no such ban. There are certain areas of military and nuclear facilities that cannot be photographed, but these areas are inside the perimeter of the facilities. And any property owner has the right to restrict the activities that take place on their property. But as long as you remain outside of the property, on public land, you're free to photograph pretty much whatever you like.
The confrontation
In the event you have a confrontation with law enforcement or security, knowledge is your best defense. The FAQs on the government's copyright Web site, and Bert Krages' "The Photographer's Right" are excellent resources. Bert just happens to be an attorney specializing in photography, copyright, and patent law. It may even be in your best interest to keep copies of pertinent information in your camera case. But first, be sure you are in the right.
Next, be civil, polite, and cooperative to the extent the law requires. No one can legally confiscate your equipment without a court order.
I'll repeat myself in case you missed it: be civil and polite. No matter what your position and what you need to accomplish, there's no need to scream and yell. If you are calm and remain calm, you'll be far more credible than if you appear completely nuts. And, the people you're interacting with will be far more inclined to like you, not fear you, and not over-react.
Make sure to get complete information on every person involved, including their name, rank, where they are assigned, and their supervisor's name. You are legally entitled to this information in any situation where you have dealings with law enforcement authorities. Ask politely but firmly.
Immediately following the incident, write down a complete and factual account of everything that occurred and everything that was said. Be sure to include pertinent things like body language, tone of voice, sarcasm, and how you felt. Also include key reference data like the time, date, location, people around, names of any witnesses you may recall, and so forth. You may then want to contact your attorney, depending on how the situation unfolded.
When it comes to detaining you, law enforcement officials tend to be authoritative first, and take immediate offense to any challenge to their authority. You always have the right to request that a supervisor respond to the scene. But bear in mind, the supervisor will talk to his officers first. Just be cordial, and know your position within the law.
Rent-a-cops and wannabes live for just these types of situations. It gets their juices flowing and gets them pumped up. But they have zero authority to detain or interrogate you outside of their places of employment. And if you are on public property, you are outside the the grounds of their place of employment. Their legal ability to detain or question you even within the bounds of their place of employment is tenuous at best.
In any case, they have no more authority to lay their hands on you, or your equipment, than you do to them. If they touch you, they are making themselves and they employer liable to charges of battery. Assault is a verbal threat of harm. If they physically touch you, it's battery.
Just like with the "legal" authorities, remain calm, be cordial, and be informed. Knowing your legal position is the best defense you can have. Don't bother with the wannabes, just call the police.
Conclusion
The events of September 11 have given rise to a need for caution among our protectors. Sadly, in some cases, those in positions of authority have taken these events as an excuse to fabricate non-existent laws and to use Gestapo-like techniques to illegally harass and intimidate photographers.
Your best defense against over-reaction is to be informed and know your position within the law. Remaining civil, being cooperative to the extent of your comfort, and carrying proof of your rights can go a long way to quickly resolving any issues. In the event of the worst of circumstances, locate a good civil rights attorney.
If you've had any interesting conflicts you'd like to report to other readers, let us know at editor@connectedphotographer.com. Please use the subject line "PHOTOGRAPHY AND THE LAW". If you see any interesting news reports on this topic, please feel free to pass them on to our news desk, at news@connectedphotographer.com. Please use the subject line "NEWS - PHOTOGRAPHY AND THE LAW".