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Tuesday, January 5, 2010

Release Me!

If you want to feel properly protected and have the latitude to maximize your ability to sell an image, don’t forget the model releases when you hit the street

Genuine Legal Restrictions
Amid the paranoia and imagined restrictions, there are some very real restrictions on photography, and these restrictions exist on federal, state and even local levels.

For example, U.S. laws criminalizing espionage and authorizing censorship for national security purposes contain restrictions that permit the President to define certain vital military and naval installations or equipment as requiring protection. Once designated, it’s unlawful to make any photograph (including aerial photography), sketch, picture, drawing, map or graphical representation of such military and naval installations or equipment without first obtaining permission of the installation’s commanding officer. The same set of laws gives the installation’s commanding officer the authority to review and censor photographs of the installation.

Photographers are also likely to encounter a variety of restrictions on the state level. Florida, for instance, has a law that prohibits the sale of photographs of any “area, building, or structure the entry of admittance to which is subject to an admission charge or fee, or of any real or personal property located therein.” The same law prohibits the use of any such photographs “in connection with the sale or advertising of any other product, property or service, without the express written or oral consent of the owner or operator of the area, building, structure, or other property so depicted.” While this law does include an exclusion for publication of photos in newspapers, magazines and other media “as part of any bona fide news report or presentation having a current and legitimate public interest,” it’s not difficult to imagine who the single largest benefactor of the law is.

While regulations like the one in Florida may not directly impact most street photography—although, given the broad scope of Florida’s law, it really depends where the street is located—other types of restrictions have appeared since 9/11. In New York, signs prohibiting photography have started to appear on various bridges and tunnels. According to Judie Glave, a representative of the Metropolitan Transportation Authority (MTA) Bridges and Tunnels, the entity that controls various bridges and tunnels in New York, the “no photography” policy was enacted for “security reasons.” Now, “[a]ny requests for filming or photography must be reviewed and approved by our Internal Security Department.” Glave added that “[m]embers of the news media are accommodated consistent with security concerns and at the [MTA’s] discretion.”

Todd Maisel, a staff photographer with the New York Daily News, encountered problems with the MTA’s policies when he was assigned to cover a Concorde airplane that was being moved by barge and heading under the Marine Parkway Bridge between Brooklyn and Queens. Maisel had only minutes to take the picture, yet within minutes of arriving at the bridge, he was confronted by officers who attempted to prevent him from using his camera. After a call to the agency’s Public Affairs Deputy Commissioner, the officers permitted Maisel to shoot. By then, however, it was too late. According to Maisel, “[i]f I hadn’t pressed my luck and shot despite [the officers’] objections, I’d have no photo.”

Adds Maisel, “Since then, we have been able to get permission to take photos at various times by just calling [MTA] to tell them we are doing it. ...if there is a foot path, I go up [on the bridge] with camera concealed to avoid problems.”

In the case of the MTA’s policies and restrictions on photography, the restrictions may not be appropriate. “Because these areas are public owned and have public access,” says Maisel, “they should be open for the public to take a picture.” However, the MTA claims to “have the authority to make and enforce rules under the Public Authorities Law of the State of New York.” Therein lies the problem: Rules created by administrative agencies aren’t always available on the Internet and may not otherwise be easy to find. In some instances, such rules may not even be proper; while it’s not uncommon for administrative agencies with rulemaking authority to create various restrictions, those rules also may be challenged on a variety of grounds ranging from constitutionality to the failure of the agency to follow proper administrative procedure when engaging in the rulemaking process. This could explain why, in Maisel’s experience, people who violated the “no photography” policy generally have been charged with criminal trespass; most people “either paid the [citation] or it was later thrown out by the [MTA] to avoid issues.”


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