Friday, July 8, 2016

Know Your Rights Taking Photos in Public Places

At risk of plagiarizing the ACLU website, this is very important information for anyone taking photos in public places.

TO summarize the ACLU web pages: Taking photographs of things plainly visible in public spaces (including airports) where you are lawfully present, is a constitutional right – including federal buildings, transportation facilities, and it also includes police or other government officials carrying out their duties as long as you're not interfering with their operations. Unfortunately, there is a trend in law enforcement. with officers ordering people to stop taking photographs in public places, which often leads to harassing, detaining and arresting those who fail to comply.

Most significant line to remember, if you're ever detained, is to POLITELY ask: am I free to go? That changes the legal paradigm. Then things become formal. Law enforcement has to either charge you, read you your rights, or let you go. Any perceived hostility on your part changes that paradigm again—with charges.

Police officers may not confiscate or demand to view your digital photographs or video (audio sometimes falls under other laws, be careful) without a warrant. That includes cell phones. They may not delete any photos from your cell phone or memory card either.

However, the right to photograph does not give you a right to break any other laws. If you're standing on private property, this rule does not apply. You're trespassing. Make sure you're not standing on a corporate flowerbed when documenting law enforcement.

Please visit the ACLU site: Know Your Rights: Photographers - What To Do If You Are Stopped Or Detained For Taking Photographs

Since this post (originally on Facebook) generated a lot of conversation, I've added some related information on photographing in parks and forest service lands. By right, this should be a sidebar, but it does entail knowing your rights.

My friend Gail Armand asked: "I wonder about the constitutionality of the process that requires photographers to pay fees and obtain permits if they photograph public places with the idea of selling their art. In Hawaii professional photographers are required to obtain permits and pay fees." This instigated a lively discussion, and I realized more research was required.

Professional photographers pay for photographic access to local, regional, state, or national park in ALL states. And in BC, too. So I presume, by extension, all of Canada, as well. Who is considered a professional photographer, is subjective, and it is unevenly enforced by park officials.

It seems that if you have lots of camera gear, a camera with a big lens, a light meter, a model (or a prop), and a tripod, then the local, regional, state, and National Parks, the US Forest Service, (and the BLM) all want a permit. Not just in Hawaii. See the California information below. Repeat the s
ame situation with an iPhone (sans tripod), no fee required—you're perceived as an amateur—go figure. The bottom line is: know your rights.

The professional photography rules are similar in all National Parks, websites and required forms are listed by actual park site, there's no general NPS webpage. And it looks like the professional photographer fee process was set in motion ten years ago, in 2006. I imagine that the rules will be amended some more, with the advent of drone photography.

Here are a few sample NPS photography permit pages:
Arches NPS photography rules.
Yellowstone NPS photography rules.
Here's a link to a forum on Large Format Photography from 2006, that's interesting.

When this photographer fee process was set into place by the United States Forest Service, the fee in 2012 was quoted at $1500 a day! General outcry (and massive pants-soiling) resulted in clarification. This is from a 2014 article.
Today, the team at Oregon Live exposed a new rule proposed by the United States Forest Service, that, if passed, will take effect in November. The rule calls for any member of the "media" to first apply for a permit before being allowed to take photos or video on 193 million acres of designated wilderness areas. Oh, and by the way, the permit costs $1,500.
And the clarification:
According to the Washington Post, Tom Tidwell, chief of the United States Forest Service says “If you’re news media, it has no effect at all,” he said. “If you’re a private individual, this doesn’t apply. Individuals who want to shoot on wild lands won’t need a permit, even if they plan to sell their photographs, except if it involves props. Fees for permits vary by size. Groups of up to three will pay $10 a day, while crews of 80 shooting movies usually pay around $800 a day. —Fstoppers Is The U.S Forest Service About To Charge Photographers To Take Photos?

How photography is interpreted and enforced in public parks is very subjective. Some agencies won't let an amateur photographer create a portfolio, or use photos for a contest, or even use their own photos on personal web pages. Of course, enforcing that last one is impossible.

An in-depth article by Jeff Conrad for the Large Format Page, Still Photography and Permits On US and California Public Land, is a must-read. He goes over these points and your rights in depth. At the end, he refers to many CA places/rules. Well worth reading. Here's a sampling.
Many public agencies require permits for photography done for “commercial” purposes, often without defining the term. most state and local agencies in California require permits for any photography for “commercial purposes,” possibly with the assumption that “commercial” is equivalent to “large-scale and disruptive.... 
Photography for personal use doesn’t usually require a permit, as long as the photographer follows the same rules as the general public. A few sites do restrict the use of certain equipment (such as tripods or artificial lighting).... 
Federal agencies do not consider commercial intent in determining when a permit is required for still photography; if the photography involves “models, sets, or props,” a permit is required. It is not yet clear whether photographic equipment other than a camera and tripod will be considered a prop.... —Still Photography and Permits On US and California Public Land
The stickler is: are you a professional photographer vs. an amateur. The answer: amateur—for personal use only—if questioned. Anything else opens too many doors for litigation if you're caught without a permit, and it's ruled that you're not an amateur. 

Under these definitions, I am definitely a rank amateur photographer—as I don't sell my work, nor do I have the equipment to take fine art photography. I like to shoot low profile, with a camera that fits in my jeans pocket. I also often shoot blind without looking into the viewfinder or LED screen. I never bring the camera up to my face if I feel I'm in a dicy situation.

Besides, I don't think fine art photography should be subject to photographer's fees, as the fees are not only steep, but the chance of your ever recouping those fees are next to nil, unless you're Ansel Adams, or Galen Rowell (may they RIP).

Claiming that your photography is documentary, or for news media is far too subjective. Theoretically it should be OK under most circumstances, but is subject to law enforcement whim. And you know how that goes.

Learn more about your photographic rights here at the ACLU site. See slide 8 for more legal language, and memorize it, if you're ever detained, you'll want that language.

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