It is safe to say that there are common misconceptions about photographers’ legal rights and the laws that protect us. Whether it is due to incomprehension or the inability to use the Internet, legal troubles have afflicted the field. It it is crucial for any growing business to learn these legal rights or, at the least, grasp a basic understanding. The last time anyone checked, a photographer does not want to spend all of his or her time in a courtroom.
1) Private vs. Public Property
The most common issue among photographers is the confusion over private and public property. First and foremost, the general rule is that anything in a public place can be shot: public places are streets, sidewalks, and parks. This also means that a private building can be photographed from a public area. However, the federal government could prevent legally obtained photos of military bases or federal buildings, in order to ‘protect national security.’
Obviously, while on private property, an owner has the right to prohibit photos. It is extremely vital for a photographer to ask permission before attempting to take pictures; if anyone refuses the owner’s request of privacy, then he or she can be charged with trespassing.
2) Detainment and Confiscation
Another popular misconception is that a photographer needs to disclose information about what he or she is doing. Though the post-9/11 day and age suggests otherwise, people are not under any obligation to explain the purpose of their photos; if someone continuously badgers, it is within the photojournalist’s rights to press coercion or harassment charges.
Even with this statute, I recommend complying with officers. Though they cannot legally detain anyone for taking a photo, New York’s finest could make someone’s life extremely difficult.
Now, as long as the photographer stays within his or her aforementioned legal rights, then a disgruntled cop or an individual cannot confiscate anything. Even if someone illegally took pictures on private property, the film cannot be confiscated or destroyed without a court order. If anyone takes or damages the film without one, he or she can be charged with theft or coercion.
3) Copyright’s Statute of Limitations
Now, one half of photography is working in the field and the other half is protecting or using an intellectual property. Most photos will be copyrighted by the artist responsible, however, it is important to ask when will a photographer lose those rights? Well since January 1, 1978, the stipulation has been that a product becomes public domain seventy years after the creator’s death: and this timeline starts the year following the death.
However, there are a few exceptions to this rule; all things filed before January 1978, will have guidelines affecting the terms of those copyrights. For instance, the original laws allowed the possibility of renewal, which created the ability to hold a copyright for ninety-five years, dead or alive. The copyright process between 1950 and 1978 were filled with these weird statutes and loopholes: in order to thoroughly know the process, one should look up information on the questioned item, or become familiar with these alternate stipulations.
4) Commercial Use
Does a photographer have the right to take a photo of a person without their permission? This is where the law can get pretty tricky. And the answer is yes, as long as the subject is on public property and does not have any reasonable expectation of privacy: which means that a shutterbug cannot film someone during a private moment, like going to an ATM.
Yet, the photographer cannot commercially use a photo without the consent of the filmed parties. But pictures could be used in editorial pieces or art exhibits without anyone’s consent; a photo that is described as being ‘newsworthy,’ can be used in an editorial on the basis of the First Amendment. On the other hand, though art exhibits benefit the artist, 2008s Nussenzweig v. DiCorcia established that ‘artistic expression’ did not fall under commercial use.
In the end, as long as a person’s likeness is not being used to a sell a product, then one does not have to get permission. However, a person who did not consent can sue newspapers and art exhibits, if the photos could be considered libelous: while the actions in a particular photo cannot be questioned, how someone uses a picture can be.
5) Orphan Work
Since 2006, ‘Orphan Works’ have been a hot button topic. ‘Orphan Works’ are artistic properties that do not have a specific author: in fact, it is impossible to find or locate the creator. Currently, Congress and the U.S. Copyright Office are debating about solutions to this problem: yet, the general public has not been happy with some of their ideas.
At the moment, it is frowned upon to digitize or use ‘Orphan Works’ for commercial reasons. People can still use these items, but a ‘cost-benefit analysis‘ is necessary; an author’s reappearance can result in a lawsuit. The other way to use an ‘Orphan Work’ is if it falls under the statute of ‘fair use,‘ which has not been reasonably defined: but court rulings stated that work of unknown origins can be used for educational purposes, criticisms or editorial work.