In addition to other impediments facing street photographers and photojournalists, paranoia since September 11, 2001 has resulted in photographers being hassled, detained and even arrested simply because they were using a camera in public. While examples abound, one particular incident received widespread attention. On December 21, 2008, Duane Kerzic went to New York City’s Penn Station to photograph Amtrak’s trains. According to Kerzic’s interview aired on The Colbert Report, “My intention when I went to the station that day was just to get a couple of good photos of the trains that were shiny.” Within minutes of appearing on the train platform with a camera, Kerzic was confronted by officers who searched him and then handcuffed him to a wall for about an hour. Kerzic’s experience is ironic given that he intended to enter some of the photographs in Amtrak’s photography contest.
Kerzic’s experience is hardly unique. In September 2009, photographer and activist Erin McCann presented a statement regarding the harassment of photographers who photographed the Department of Transportation building in Washington, D.C., to the House Subcommittee on Economic Development, Public Buildings, and Emergency Management, chaired by Eleanor Holmes Norton. In her statement, McCann detailed her experiences when attempting to photograph the Department of Transportation building and her discussions with one of the building’s security supervisors. According to McCann’s testimony, the security supervisor told her that “guards are trained to stop all photographers and collect their contact information.” The supervisor, after collecting McCann’s contact information, refused to permit McCann to photograph the building, saying that it was “illegal to photograph a federal building.”
Roughly a year earlier, McCann testified before the same House Subcommittee regarding police and security officer harassment of photographers, including her own experiences at Union Station in Washington, D.C. Despite being assured by Amtrak and the station’s management company that photography is allowed in Union Station, McCann was repeatedly stopped while photographing public areas of the station. In one case, McCann was informed that the building was private property and that all photography is prohibited. In another case, the officer confronting McCann told her that her camera was “too professional” and, therefore, her rights as a photographer weren’t the same as rights of tourists who are free to take pictures inside the station.
“For the most part, attempts to restrict photography are based on misguided fears about the supposed dangers that unrestricted photography presents to society,” writes photographers’ rights advocate and attorney Bert Krages on his website. As Krages points out, “Neither the Patriot Act nor the Homeland Security Act have any provisions that restrict photography.” In an effort to educate photographers, Krages put together a one-page, downloadable guide (www.krages.com/ThePhotographersRight.pdf) that photographers can print and carry with them as a quick-access reference when dealing with confrontations.
While it’s important to know what your rights are when attempting to create images in public, confrontations are inevitable. The street isn’t the right place to resolve such confrontations, however, particularly with law enforcement, as such confrontations generally end badly for all involved. The better approach is to comply with the law enforcement officer’s instructions and then contact your attorney or the local office of the American Civil Liberties Union.
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.”
< br /> 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.”
To further complicate matters, the MTA’s policies are neither clear nor consistently enforced. Another MTA representative advised that while “photography on [MTA] property is…strictly forbidden…[a]nyone is free to photograph our bridges from off-property.”
If these various restrictions illustrate one key point, it’s the need to research a locality’s rules before shooting. However, the various random restrictions that may prohibit photography in public are insignificant when compared with the “right of publicity” and impact it can have on your photographs, even those taken in public.
Development Of The Right Of Publicity
The “right of publicity” is the name of the legal theory that, where recognized, permits a person to prevent the use of their name, image or likeness for commercial gain. The right of publicity was at the heart of a class-action suit filed by various former National Football League (NFL) players, including Hall of Famer Elvin Bethea, in Minnesota Federal Court in late 2009. The class-action suit included allegations that the NFL violated former players’ rights of publicity by continuing to make use of the players’ “names, images, and likenesses, to promote the NFL and otherwise obtain revenue” after the players had retired from the league.
The “right of publicity” is an outgrowth of the legal theory that permits people to prevent (and recover damages for) what’s essentially an invasion of privacy. In some instances, the theory was referred to as a “right of privacy in one’s own personality.” Since its early references in court decisions beginning in 1953, more than half of the states in the U.S. now recognize either a statutory or common law right of publicity. Indeed, the former players’ lawsuit against the NFL asserts claims of violation of the right of publicity under the laws of California, Minnesota, Texas, Arizona and goes on to identify 23 other states that recognize either a common law or statutory right, or both.
There’s a certain irony in the former football players’ suit, since one of the earliest cases to squarely address the right of publicity involved a dispute between competing chewing gum companies, with each claiming to have acquired rights to use a professional athlete’s photograph in connection with the sale of gum.
In general, a right of publicity claim only requires a showing that a person used another’s name, image or likeness to his or her commercial advantage without consent. Where some states vary is in the nature of proof required to show that the name, image or likeness was used for a commercial purpose. Some states, like Florida, take the approach that mere publication or display of a person’s “name, portrait, photograph, or other likeness” without consent constitutes a violation of the statutory right of publicity. Some states have even extended the right of publicity to use of a voice, imitations/lookalikes and even abstractions that evoke the memory of a personality.
The right of publicity can be a significant concern for photographers who create images of public scenes. Fortunately, there are some limitations to the right of publicity. Some courts have suggested that the right of publicity must be balanced against “the public interest in dissemination of news and information consistent with the democratic processes under the constitutional guarantees of freedom of speech and the press.” Some states even have gone so far as to include these exceptions or limitations in their statutory law. Florida, for example, includes a carve out, so that the right of publicity won’t apply to publication “in any newspaper, magazine, book, news broadcast or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes.” Florida also excludes “[a]ny photograph of a person solely as a member of the public and where such person is not named or otherwise identified in or in connection with the use of such photograph.”
Unfortunately, even if the photograph is used for editorial purposes—e.g., publication in a newspaper or magazine in connection with a news report—the use may still constitute a violation of the right of publicity. In 1980, Clarence Arrington sued The New York Times, Contact Press Images (CPI) and the photographer for violation of his right to publicity. Arrington was photographed, without his knowledge or consent, while walking along a street in New York City. The New York Times Magazine later used the photograph, without naming Arrington, as the most prominent illustration of a feature article entitled “The Black Middle Class: Making It.” In what was viewed as a victory for media outlets, the court dismissed the action against The New York Times, ruling that the use of the photograph didn’t constitute commercial use and that the subject related to a subject of “public interest.”
In a somewhat troubling move for photographers and their agents, the court also found that Arrington had stated a right of publicity claim against the photographer and CPI. As the court noted, by “operating independently from the publisher,” both the photographer and CPI would have commercialized the photograph in furtherance of trade. The court also noted “[t]hat the sale was to a publisher of news and articles on matters of public interest would not, in and by itself, have clothed [the photographer and CPI] with the publisher’s immunity from” the statutory right of publicity.
Playing It Safe
While decisions such as the Arrington case may not be the norm, they illustrate the tremendous value in playing it safe and treating photographs taken of public scenes and places as though they’re intended for commercial use.
Photographer and President of the Portland, Maine-based photo agency Aurora Photos José Azel has emphasized the value of obtaining model releases while on assignment. “I don’t take a tape recorder on assignment with me, but I do take a stack of model releases.” Utilizing model releases, Azel puts himself in a position where he can market images for various commercial purposes and maximize the return on the time he invests in an assignment.
Ultimately, Azel’s approach is the only safe approach. Even if you’re not intending to commercialize an image, and even if the person in the photograph isn’t clearly identifiable, there’s always a possibility that, after the initial shock of seeing himself or herself in a photograph, the subject will file suit. A model release can prevent this, or at least provide a very real defense to a claim that the use of the photograph wasn’t authorized.
Model Release Nuts And Bolts
Do a quick search on the Internet, and you’re likely to find hundreds of different model releases. The difficult
part is finding a good form model release from both a legal standpoint and a public viewpoint.
At their simplest level, a model release boils down to permission, granted by the person signing the model release, to use photographs or likenesses of that person for various lawful purposes. Unlike agreements that tend to be tailored to a specific state’s law, a good model release tends to be drafted to cover a variety of states’ laws. Depending upon the complexity of the model release, it may also address issues of:
• Consideration/Compensation. In simple terms, consideration is the exchange of promises that make contracts enforcement in most states. It’s not uncommon to find language in a model release indicating that “in considering for my engagement as a model” or “in consideration of $____ paid” or “for $10 and other good and valuable consideration;” in each instance, the language seeks to memorialize that there was consideration to make the release enforceable. The danger associated with including such language is that if the consideration doesn’t match what appears in the model release, or if the consideration isn’t paid, the person signing the model release may be able to challenge the effectiveness of the release. Some forms also may include language indicating that the person signing the release will receive no additional compensation, even if the photograph is commercialized.
• Release/Indemnification. Some forms may include a release and even a hold harmless provision in favor of the photographer relating to any claims that may be raised based upon the use of the photograph. However, the use of an indemnification provision may do more harm than good, as it may discourage people from signing the release. In addition, the value of an indemnification provision is generally only as good as the resources of the person providing the indemnification; in other words, if a person doesn’t have the financial ability to indemnify you, the indemnification agreement only gives you a right to sue and recover an uncollectable judgment after you’ve had to resolve the original claim.
• Waiver. Some forms include an express waiver by the person signing the release to review or approve the manner in which photographs of the person may be used.
• Age Of Majority/Competency To Sign Release. Some forms include a representation that the person signing the release is old enough and competent to enter into a binding contract. Some forms may include language to permit a parent or guardian to sign a release on behalf of a child and to address the situation when the child attains the age of majority.
As with most contracts, the goal is to strike a happy balance between too little language and too much language. Too little language and the model release is incapable of providing a photographer with broad and unfettered rights to commercialize photographs; too much language may cause a person to think twice about signing the release.
If you’re not currently using a model release, you should reconsider your practices. Various photographer’s associations provide members (and in some instances, the general public) with a variety of form model releases. For example, the National Press Photographers Association has a set of form model releases on its website, www.nppa.org/professional_development/business_practices/releases/. Even if you find a form model release that suits your tastes, it’s still advisable to spend a few minutes reviewing the form with your attorney to understand what may be missing, what can be removed from the release and whether any corrections are required.
Some Knowledge And An Ounce Of Common Sense
Knowing and understanding the types of restrictions that you may encounter is generally half the battle. Once the restrictions have been anticipated, it becomes a matter of logistics to arrange for the various permissions that may be required.
Even with proper planning, there’s a possibility that you may be faced with unanticipated restrictions or confrontations. At such times, avoiding a cavalier attitude and exercising an ounce of common sense can go a long way. Indeed, working calmly with the public, business owners and law enforcement officials often can smooth out the wrinkles, leaving you to focus on creating discrete and even timeless images in everyday places.
Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Fla., and a professional photographer who has covered sporting events for a quarter-century. He can be reached at [email protected] or [email protected].