|September 2, 2011|
Previously published by The Advocate on July 14, 2009
I recently gave a presentation at the Hallmark Institute of Photography on various legal topics that were of interest to the photography students there. Prior to the presentation, I had posted to some of the student message boards asking some of their legal concerns so that I could address them in my talk. One of the most asked about topics surrounded the legality of photography while urban exploring, or more simply: can I use the images that I took while breaking into that abandoned building? Seems that even though they are training to be professional photographers (who primarily shoot in studios) - some of them have become adventurous and are curious about potential liability. I figured that there may be more than just the students of Hallmark interested in such a topic - so I am devoting this column to just that.
The key thing to remember is that there is a difference between being able to use an image (for publication, exhibition, sale, etc) - and being able to lawfully take an image in the first place. Generally speaking, and there are plenty of exceptions, photographers can publish any photos they take, provided those photos do not violate the privacy of the subject. In my last article (Portolio Magazine, Spring 2006), I addressed the topic of invasion of privacy quite thoroughly. Just as a recap, individuals have a right to protection against the unauthorized use of their name or likeness for commercial purposes, unwarranted intrusion upon their solitude and personal affairs, publicity that places them in a false light, and from public disclosure of embarrassing facts about their private lives. There are a few exceptions that have been carved out for newsworthy events, and now more recently some artistic purposes, but for the sake of simplicity - I am only going to address the general rule and not the exceptions.
With this in mind, as long as the photographer is not invading someone’s right to privacy, they would most likely be able to use the images taken for more than personal purposes. This includes photos that were taken in places that were off limits - by law or by request from the owner. Ultimately, taking photos and publishing them are two separate issues. However, this does not mean that a photographer will not be potentially criminally or civilly liable for shooting someplace that they shouldn’t be.
As a general rule, if a location is open to the public, such as a mall, park, office building lobby, store, etc, you will not need express permission to enter the premises and shoot - as it is assumed that entry is permissible. However, if you are shooting somewhere and the property owner asks you to leave, you must do so or you could face potential criminal or civil liability for your trespass.
Though you may be asked to leave, it is not appropriate for them to take your film or digital medial. Sometimes security staff at industrial sites or shopping malls may ask you to hand over your film. However, unless a private party has a court order, they do not have a right to your film or digital media. In fact, if they do take your film or digital media directly or indirectly by threatening to use force or call the police - that can constitute a criminal offense such as theft or coercion and they will be the ones liable. Ad even if it doesn’t rise to the level of a criminal offence, it can still constitute a civil wrong leaving them liable as well as they entity they work for. The one exception to this would be police officers directly. They may have the authority to seize your film when making an arrest - but otherwise they too would need a court order.
I would be providing a disservice if I didn’t talk about some of the potential risks with taking photos in places where you don’t belong. If you publish photos that were taken while trespassing, you are providing evidence of your trespass that can be used against you. In fact, there have been some cases where the trespassing judgments imposed have been increased based upon the content of the photos.
There may be other potential liabilities that are not immediately apparent. Abandoned buildings are probably abandoned for a reason. In the very least, they tend to be without electricity (i.e. dark), not well kept (i.e. unsafe conditions), and maybe even explicitly dangerous (i.e. rusty nails, cracking floorboards, gas leaks, etc.). While you may be willing to take the risk of entering such a place to capture the perfect photo - be careful as you may be liable for any injuries or damage caused by anyone you bring with you. I have a client who does a lot of this type of shooting (against the advice of counsel) and one of her biggest concerns was if a model injured themselves while out on one of these expeditions. While a waiver and release of liability may be a useful tool, it may not hold up in all circumstances.
Matthew B. Harrison is an entertainment and media attorney with Harrison Strategies, LLC. The New York based talent management group has offices in Massachusetts, New York and Washington D.C. When not practicing law, Harrison also is a fine art photographer with FNS Studios located in Springfield, MA and Silver Jack Photo located in Brooklyn, NY. Visit him on the web at www.photosandthelaw.com or email him at firstname.lastname@example.org