Legal Rights of Photographers

The Bottom Line

Except in special circumstances (e.g., certain government facilities), there are no laws prohibiting the taking of photographs on public or private property. If you can be there, you can take pictures there: streets, malls, parking lots, office buildings. You do not need permission to do so, even on private property. Trespassing laws naturally apply. If a property owner demands you to leave, you must. But if a place is open to the public — a mall, office-building lobby, etc. — permission to enter is assumed (although it can be revoked). In terms of the law, trespass and photography are separate events; the former is illegal, but the latter is not. Only if the use of photographic equipment itself violates a person’s privacy (e.g., by using a long lens to look into someone’s private room) might it violate privacy law. Further, while people have a right of privacy, businesses do not except trade secrets.

Subject to specific limits, photographers can publish any photo they take, provided those photos do not violate the privacy of the subject. This includes photos taken while trespassing or otherwise being some place they shouldn’t be. Taking photos and publishing photos are two separate issues.

  • Photographers run a limited number of risks from taking and publishing photos.

  • If they publish photos taken while trespassing, any trespassing judgments against them could be increased if the judge(s) feel it was inappropriate to take those photos.

  • They risk being charged with intrusion if they use technology — e.g., long lenses — to access places where the subjects have an expectation of privacy.

  • Although it is not against the law, they risk losing invasion of privacy lawsuits if their photographs reveal private facts about people that are offensive and not newsworthy (e.g., showing a person purchasing anti-HIV drugs) when the people had a reasonable expectation of privacy. Jennifer Aniston’s suit against the photographer who published topless shots of her falls into this category.

  • As with libel, they risk losing lawsuits if their photographs place people in a false light, e.g., mislabeling a photograph in a damaging way.

  • They risk losing invasion of privacy lawsuits if their photographs inappropriately use specific person’s images for commercial purposes, e.g., stating that the mayor endorses a product by publishing a photo of him using it.

The details

Whether or not you can take or publish photographs is a matter of privacy laws. There are widely recognized to be four “prongs” of those laws — that is, four areas of which you can run afoul. Avoid them and you avoid civil and criminal penalties.

Prong 1 (while gathering): Unreasonable intrusion upon seclusion (e.g., trespass)
Prong 2 (if published): Unreasonable revelation of private facts (e.g., medical information)
Prong 3 (if published): Unreasonably placing another person in a false light before the public
Prong 4 (if published): Misappropriation of a person’s name or likeness.

So there are two separate questions with regard to publishing photos: 1) Are we allowed to take them? and 2) are we allowed to publish them?

While posting photographs for this page, I admit, there have been quite a few occasions when I'd just done an image search on Google and picked up a photo. So, what do you do with your blogs? How do you produce the pictures, if you at all do?

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