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THE
LEGALITY OF URBAN EXPLORATION PHOTOGRAPHY
The difference between legal, unpublishable, and jail time
By
Matthew B. Harrison, esq.
PhotosAndTheLaw.com
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 Springfield based talent management group has offices in Massachusetts,
New York and Washington D.C. When not practicing law, Harrison also
is a glamour photographer with FNS
Studios and Silver
Jack Photo located at the Indian Orchard Mills complex. Visit him
on the web at www.photosandthelaw.com
or email him at matthew@matthewharrison.com
Copyright © 2006 Matthew B. Harrison, esq. All
rights reserved. The information contained on this website may not be
published, broadcast, rewritten or redistributed without the prior written
authority of Matthew B. Harrison, esq. One should know better than to
steal intellectual property from an intellectual property attorney. |
