Know Your Rights: Public Photography

The ubiquity of camera phones has turned every layman into a semi-professional photographer, and social media makes it easy to spread photos and videos online like wildfire. Sometimes these photos and videos even end up changing the course of a story or sparking movement. However, public photography rules apply whether you’re using a $ 5,000 Leica or an iPhone.

For the most part, your right to photograph and video in public in the United States is protected by the First Amendment on Free Expression. This includes photographing your favorite monument while on vacation or doing a little citizen journalism. This is not as obvious as you might think, and it is good to know your rights and the disclaimers that come with them.

General rule: if you see, you can shoot.

Your basic right is actually quite simple: if you are in a public place and see it, you can shoot it. This means that while you are in a public place, you can legally take almost any picture. However, if you use a telephoto lens, parabolic microphone, or hidden camera to capture a picture of a private property while standing in a public area, you may have problems if someone in that property expects privacy. So what is a public space? Most of the places are obvious: the park, the street, the football field – these are undoubtedly legitimate places to photograph everything that happens. But what about all those Instagram food photos you took in the office? This is a little different.

Generally, if a private property is open to the public (such as a restaurant, retail store, tourist areas, etc.), you are allowed to take photographs and videos unless explicitly posted somewhere on the grounds that you cannot. In most cases, it can be assumed that you are allowed to take photos and videos in a store that does not explicitly prohibit it. However, if the property owner (or store employee) tells you to stop, you should stop. More importantly, be reasonable and assess the situation and surroundings before taking pictures.

This also applies to citizen journalism. If you see an accident you want to document, government misconduct, or even TSA checkpoints , you can do so without interfering with police or medical operations. As far as the Department of Justice is concerned, you are also allowed to take videos or photographs of police officers if they are on state land . Filming police officers is still a difficult situation without a specific decision, but courts tend to protect your right to film police officers.

Where and when you get in trouble

As with most laws, you will find some exceptions to the rule. Taking photographs on any clearly marked private property is considered a violation of ownership. As far as government property is concerned, you are generally fine, but you cannot photograph most military bases or inside most courthouses. There are a few more serious caveats.

Just because some places are in the public domain does not mean photography is allowed there. For example, a bathroom is a public place, but people expect privacy from it, so photography is usually not a good idea. The same is true in any other place where people can expect privacy, including in premises such as A.A. meetings or doctors’ offices.

The same goes for photographs of people in private space, where they expect privacy, even if you are in public property. So, if you can see your neighbor from the sidewalk in the window while he is showering, you cannot take this photo even if you are in public area (and you can ask your neighbor to close the curtains). The general rule of thumb is that unless you want someone to secretly take a photo of you in a semi-private location, you probably shouldn’t take your own photo. These rules may differ from state to state, so check your local laws before being called a “peeping”. If you are caught taking a photo, you should not, or if you are accused of illegal shooting when you are in the open, your answer should be about the same.

What if someone says you have invaded

If you enter a clearly marked private area without permission, you will be crossing the border and you should stop photographing and leave. If a member of staff or security tells you to stop taking pictures because you are in a private area, stop taking pictures. Unless signs are posted that say you cannot take pictures, but this is a public area, you are technically allowed, but it’s up to you whether to bargain for details with a security guard. You most likely have a right, but if you are being questioned directly, you should seek the help of a lawyer.

Regardless of whether you are right or wrong, no one is allowed to take your camera away from you in a public place. Even if you invade, the property owner and the police cannot get your camera (or film, or SD card) without a court order.

Pay attention to where and what you are uploading online

While you have the right to photograph almost anywhere, posting certain photographs may cause you problems in a civil court. Fortunately, the distinction is pretty clear.

You may not use anyone’s image for commercial purposes without their explicit permission. This means that you cannot take a picture in a public place with recognizable faces and then sell it to Coca-Cola or a photography company (however, you can sell them to news organizations or use them for art). The same goes for many famous landmarks and some national parks. You are free to take photos, but selling them for commercial purposes may require permission or additional fees.

Also, you cannot publish a photo depicting a person in a false light. For example, if you photographed me fake punching Bill Gates with my fist captioned, “Filmed a few minutes before Thorin punched Bill Gates in the face,” I would probably want to sue you in civil court (assuming I didn’t actually hit. Bill Gates).

Finally, you cannot post a photo that reveals personal information about someone. This includes photographs, such as the aforementioned A.A. meeting or doctor’s office, as well as any other situations where the individual is reasonably relying on confidentiality.

The last thing you should worry about is your own rights when posting photos online. Some popular web services like Instagram require you to give Instagram permission to use when uploading images. This does not mean that they will receive ownership of your photos, but it does mean that they can use them however they want. Other services, such as Flickr , let you specify who may and may not use your photos . If you don’t want to sell or publish any of these images, make sure you use a service that leaves all rights in your hands, and be sure to check out Creative Commons for an easy way to license your photos.

In general, the mantra “If you see, you can shoot” will keep you from being prosecuted in the United States, but not all countries and states are the same, so check local laws before filming. Finally, if you feel that your rights are being violated, seek professional legal advice . You can also print the pocket booklet of Attorney Bert P. Krages so you have a list of your rights close at hand.

Disclaimer: The above is not professional legal advice and is intended to help you publicly familiarize yourself with the fundamentals of photography laws. If you are unsure whether you are in public or private property, it is best to check before taking photos. If you are concerned about a particular case or situation, you should consult a lawyer.

This story was originally published on 5/22/12 and updated on 9/25/19 with new photos and current links reflected.


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