Land of the Free

Where exactly are you allowed, and not allowed, to photograph?

I get this question all the time. Unfortunately, I’m not an expert on the subject, and I’m sure to make some errors in discussing it, whether of commission or omission. Also, all of what I have to say only applies to the U.S. of A., where I happen to live.

The basic rule is that you’re allowed to photograph most anything if you’re on public property and you’re not going to do much of anything with the picture.

There are exceptions to this. You’re not allowed to photograph the personal activities of private citizens (for instance, through a bathroom window) whether you’re on public property or not; you’re not allowed to photograph "public" citizens (i.e., celebrities) if they are someplace where they have "an expectation of privacy," like when they’re behind a high garden wall or lounging on a yacht anchored off the island of Skorpios; certain landforms and flora that are trademarked are protected against shutterbugs (for instance, the lone cypress tree at Cypress Point golf course). I also have heard that you’re no longer allowed to photograph on or near bridges, at least in the metropolitan NYC area, and maybe elsewhere, too, since 911… bridges being good terrorist targets.

And be aware that the laws regarding what you can and cannot get away with photographing are a patchwork, and enforcement of them is, to put it mildly, haphazard. For instance, many of you may know from rueful experience that you are likely to get strenuously hassled sometimes when you’re on or near construction sites — mainly, or so I’ve heard, because there are huge fines for OSHA violations and no construction site is completely free of violations all the time.

An old friend tells a story of being chased by two security guards out of a building that was under construction; they meant business, and he had to leap from a second-story window to a palette that was left on a raised forklift, and clamber down from there to make good his escape. Author Bill Bryson relates a typically humorous story in his excellent bookA Walk In the Woodsabout being hassled forlookingat a mountainside that had been terminally polluted by mining activities. No camera, even.

You’re not allowed to use a tripod in various places, for instance on some sidewalks or in museums or government buildings, a rule I once rather flagrantly violated during a confrontation with two uniformed Secret Service officers (long story).

Police have the right to secure and clear crime scenes, which includes the right to shoo off press photographers at their discretion. The good and the bad of this is that many policemen don’t know they have this right and will often back down if you make a righteous stink about freedom of the press and so forth, the unfortunate corollary being that, generally, if policemen want to hassle you, they probably will, even if you’re perfectly within your rights.

Finally, photographers make good targets for people who are feeling aggressive and want to take it out on somebody. If you’re photographing in view of a roadside, people will sometimes yell at you from passing cars for no good reason. People will sometimes materialize out of crowds and confront you, even if you weren’t taking a picture of them.

And then you’ve got "consciousness of guilt" to worry about. I was once moping around taking dopey art shots in the Brandywine Valley, and stopped to make some pictures of a handrail and the shadows it was casting. Before I knew it, some redneck came barreling out of his house (which was a good hundred feet away) demanding to know why I was photographing his truck, which I hadn’t been photographing. I don’t know if he’d stolen it or if he was just on the lookout for the repo man, but he sure was worried about something.

My friend Paul Kennedy was once hired by the State Police to photograph different types of big-rig long-haul trucks for a State Police instructional slide show. He quit the job before finishing it after he was shot at by a truck driver for thethirdtime — he decided the rather generous pay wasn’t going to do him much good if he were to run into some ornery trucker with good aim.

Rights and Wrongs

Then there’s the question of what you’re allowed to do with your photographs. If you’re making artwork or disseminating information editorially, you’re covered by the First Amendment. If you’re making money with the pictures, it’s a different story. Lately, the courts have been happiest coming down on the side opposite the photographer, whatever his or her interests might happen to be. It’s best to negotiate for specific usage, or take your lumps if you get caught. If you want to sell a picture in which an individual figures prominently, get a model release. It probably won’t protect you if the person decides to come after you, but it’s worthwhile for bluffing purposes.

Then there’s the question of outright neo-fascist oppression. Before the link vanishes, read thisarticleabout a truly awful story down Texas way. I don’t mean to pick on Texans particularly (despite my lifetime hatred of the Dallas Cowboys) — these stories pop up from time to time all over the country. But it demonstrates, better than any invective I could hope to invent, how tenuous our purported "freedom" really is in this country. (I truly loathe the recent fashion by which families are robbed willy-nilly of their own children, often by people who don’t begin to have the insight or the training to make such a judgment. But that’s another story.)

Those Old Smelly Roses

The situation in the United States is better than it is in France, where photographers suffer much worse restrictions, and not as good as it is in Britain, where photographers are still considered harmless and are pretty much left alone (I know I’m going to hear it from you photographers in Britain, but I still think it’s better there than it is here).

What you want to do is be able to support your rap, whatever it is. Take along a copy of your assignment letter if you have one. Carrying I.D. and a book of pictures is a great idea in case you get confronted. You might even consider a very simple artist-statement type thing in the flyleaf…something that anybody can grasp. Anything to help support your claim that you’re just a shutterbug and not out doing field research for al Queda. Of course, a quick wit is never a bad thing.

Being sneaky is another good strategy, although it’s not an option for a guy with an 8×10! It’s one reason why I tend to prefer modest-looking, quiet cameras.

Another subterfuge I’ve used with success (admittedly, pre-911) is to pretend I have an official capacity of some sort. Despite being basically a chicken and not very good where bluff is concerned, I’ve gotten into places, and/or out of trouble, by flashing my driver’s license at someone and claiming to be from some agency the name of which I’ve made up on the spot. Along these lines, I read a delightful story once about a photographer who carried a little folded piece of paper with him that read "Please allow Joe Smith to photograph here. He has my permission, and I ask that you give him your full cooperation." It had an indecipherable signature at the end. Guy claimed it worked 90% of the time — even with that word "here" in it, instead of a named location! (I love that.) Again, this would have been way before 911.

Photographers know better than other kind of people that not only is it difficult to stop and smell the roses, in some cases it’s against the law. Many buildings, lots of private property, industrial parks, and construction sites are off-limits. Freeways frequently have signs that say "No Stopping," and you’ll attract a cop like a fly to manure if you try to stop on an overpass, on-ramp, or bridge. More people than you might guess will have reasons for being suspicious of you; some will see you as being a ripe target for pestering; and still others will be glad to use you in the exercise of their miniscule power, whatever that may be. (Very bored security guards, for example, are to be avoided. I even once got a lot of grief from a pimply-faced kid in a Home Depot for taking a picture of my little boy on a riding mower.)

So…free country? Not really. Not if you’re a photographer. You can get away with a lot if you’re clever, but then again, there are hazards at every turn. So you’ve got to keep your wits about you. As the Sarge used to say at roll-call on "Hill Street Blues," my one-time favorite TV show: "Let’s be careful out there!"

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Mike Johnstonwrites and publishes an independent quarterly ink-on-paper magazine calledThe 37th Framefor people who are really "into" photography. His book,The Empirical Photographer, is scheduled to be published in 2003.

You can read more about Mike and findadditional articlesthat he has written for this site, as well as aSunday Morning Index.