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The intersection of photography and law is a complex place. What are your rights as a photographer? Where and what are you permitted—and not permitted—to photograph? What should you do when you're told to leave an area or delete photos you've already shot?
Photographer Ben Long and attorney Carolyn Wright discuss legal considerations ranging from where you can and can't take pictures to getting signed releases for people and property. Plus, learn about respecting trademarks when shooting commercial work, and your rights as a photographer when dealing with security and law-enforcement personnel.
Ben Long: So really I can think of it as if I'm the type of person who would not go to a website and say, "Here's this photo, I'll go use it "for something." Similarly, I shouldn't ignore the fact that there's that photo in my picture that I'm taking. I'm not going to go use that for something. Caroline Wright: That's right, we have to be cognizant. As copyright owners ourselves, we have to respect the rights of other copyright owners. Whether it's a painter, a sculptor. But when we're taking photographs we need to be careful about including copyrighted works in our photograph. Now, if you're just taking photos for vacation purposes, nobody's going to complain.
Then if you take that photograph and use it for commercial purposes or licensing it, then that copyright owner probably was going to get upset. Ben Long: Right, right. So there's no place that, publicly accessible, they're not allowed to take a picture. Which means any time a cop or a guard or somebody comes up and tries to take my camera or tells me I have to delete images, there's no situation where that's true, then? Caroline Wright: They cannot do that. A security guard, for example, cannot come look at your photos and, "Show me "what you've taken and delete those photos "or give me the digital card or "hand me your camera." That's illegal.
The security guard cannot do that. A police officer can only do that with a warrant or if you get arrested, then the camera comes with you and they might get the right to then look at the photographs of what you've taken. But the police officer cannot force you to delete your photos, cannot force you to hand over your camera otherwise. Ben Long: And this is Federal? This is not state by state? Caroline Wright: It would be considered to be first Amendment rights or it can be the rights of conversion of property.
So that would be a state right, a state violation. Ben Long: Okay. So that's great. That means that I can, for the most part, shoot within common sense, anywhere that I want. So I'm still back to the question of, I've mustered my nerve, I've gone up to this person, I've taken a shot of them, I got this great picture. What can I do with it? Caroline Wright: Okay, so there's a difference between taking a photograph and using a photograph. So, when we're talking about taking pictures of people we first have to consider, does the person have an expectation of privacy when the photo is taken? This is a funny example from a long time ago.
Even when people are in public places, while they generally don't have an expectation of privacy, here's an example of where they do. In the old days when we had fun houses and we would come out of the fun house and they would blow air up at you, there was a woman with a wide skirt and as she came out of the fun house, the air blew up her skirt and a photographer was there and he took the photograph of the woman with her dress blown up. The court deemed that to be a violation of her expectation of privacy just for the taking of the photograph, not the using of it.
Ben Long: Okay. Caroline Wright: So that's an example of how you can violate somebody's expectation of privacy, their privacy rights just in the taking of a photograph. Now, once you've taken a photograph, let's say you've taken pictures of someone in a park. A man sleeping on a bench. Then how you use that photograph, that is determined by the rights of publicity. We, as humans, have the right to protect our image.
Our voice, our likeness. That's protected by state laws called the right of publicity. If you wanted to use that photograph in a commercial, of the man sleeping on the bench, then you would need him to sign a release and get permission for you to use his likeness in a commercial advertisement, that sort of thing. If, however, you're going to put it in a newspaper and talk about, it's a sunny day and people were enjoying the park and you put the picture of that man sleeping on the bench in the newspaper, that would be considered an editorial use, for which you do not need a model release.
So if it's a commercial use when you use a photograph, you need a model release. If it's an editorial use when you're using a photograph, you do not need a model release. Ben Long: So what about fine art hanging up in a gallery, the woman who was shooting out the window at her neighbors? Did she have releases from all these people? Caroline Wright: She didn't. Ben Long: I figured (laughs). Caroline Wright: And that's why they were upset. But fine art is considered to be an editorial use. Ben Long: It is, okay. Caroline Wright: It's good for society and it informs people.
It's educational and it's an editorial use. And again, while it may have been upsetting to the people in the photograph or their parents, the photographer did not need model releases from those people. Ben Long: Now, is fine art objectively defined? Does that get to be a gray area? So, if she now makes a book and sells a book of these photos, is that still fine art or is that a commercial use? Caroline Wright: Well, books are generally considered editorial. Now, there's a question about whether a cover of a book is considered to be an editorial use.
But for the most part, courts have so far given us indication that even a cover of a book, while it may be used to sell the book, is still an editorial use. So, books are editorial uses. Once you get into any kind of advertisement or endorsement, that's commercial and you definitely need a model release. Ben Long: Okay. Posting things on my website? Caroline Wright: It depends on how it's used. Ben Long: Okay. Caroline Wright: Okay, so if you're giving an example of what your style of photography, then generally that's considered to be an editorial use.
But let me just give you a tip. If you don't know whether it's an editorial use or a commercial use, get a model release. Ben Long: Okay. Caroline Wright: That's the safest thing to do. And, really, unless you know for sure that it's an editorial use, always try to get a model release. It just takes away the hassle of threatening to be sued, whether there's any problem. Then you can use the photograph however you want. Ben Long: Right.
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