Arts & Culture: Diversity Dialogue

Cultural Diversity and Inclusion in the Arts in New York State’s Southern Tier

Photography in public is your right

If you haven’t had a chance to view the video in yesterday’s post, please take a few minutes to do so. The video is about the arrest of Duane Kerzic after he took photos on a public train platform.

I posted the video because the ability to take photos in public is crucial to the way I make a lot of my art. And also, because you have the same rights as I do. As does Duane Kerzic.

Where you’re standing when you take a photograph has a lot to do with what the rules and laws might be. If you’re standing on improved (i.e., built-upon) private property, it’s a good idea to have the consent of the property owner (or the person that is renting the property) before taking pictures.

Most commercial establishments that are otherwise open to the public prohibit photography without prior permission from management, so if you plan to make art there, you’ll need to be persuasive. But, even if you broke their rules by taking photographs and video without permission, they can’t force you to destroy the pictures (as only a judge can order that). They can ask you to leave the property. That’s what happened in 2006 when Improv Everywhere pulled a stunt in a Manhattan Best Buy store, sending in over 80 friendly people to stand around in blue polo shirts and khaki pants, and three or four hidden cameras.

Aside from improved property, there’s also much art to be made on unimproved (that is, undeveloped) private land. The reason people post “No Trespassing” signs along country roads is because anyone can legally walk on unimproved private property in New York, so long as the land owner doesn’t prohibit it by posting the signs. Just be sure to wear orange if it’s hunting season, and try to be as un-deerlike as possible, because it’s a good bet there are more hunters than photographers and videomakers wandering on unposted land.

Even knowing the laws, I try my best not to upset people by shooting pictures on their property without permission, because my job is easier when I don’t have to swim upstream. 

The rules and laws change if you’re in public land, as Duane Kerzic was. An important basic rule is that you mustn’t violate the privacy rights of others when you take a picture or record audio and video. A good way to judge whether you’re violating someone’s privacy is to consider whether that person has a reasonable expectation of privacy. If you’re pointing a camera at someone’s bedroom window, that’s clearly not cool. But if your subject is outdoors and visible from public property, you can take their photograph or record video, without their knowledge or consent, at least in the state of New York.

The latest court affirmation of this photographer’s right in our state was Nussenzweig v DiCorcia, a 2006 case in which courts held that while each person has the right to decide when his or her image can be used commercially, making photos and selling them (at least in limited edition prints and in books, as it was in this case,) is not “commercial use.” Rather, it’s publication, a right identified in both the U.S. and New York constitutions. (Wikipedia has a good summary, as well as a copy of the beautiful portrait that sparked the lawsuit.) (I’ll write more about commercial use later.)

Regardless of what the law allows, artists should explore whether making images of unknowing people jibes with their personal ethics. I don’t have a problem with it (because then it’s less likely the subjects will be mugging for the camera, thus keeping the moment more honest), but I do have a problem with making people upset when I take their photo. Generally, if a person tells me they don’t want to be photographed, I’ll stop taking their picture, and I won’t offer images of that person for publication, unless I have a really good reason to do so.

The other important rule is not to create a nuisance when you’re out making art in public. Just because you have a right to make still and video images doesn’t mean you can do things like block a street at midday in order to make those images. Stuff like that usually requires a permit.

Sadly, the other rule that is becoming important is the rule that if you take pictures of infrastructure or government workers or government property, you must be a terrorist, or at least very suspicious. It’s obviously not a legal rule, but it’s been popping up with alarming frequency since September 11, 2001, as people in authority declare that certain photographs are somehow risks to national security. (Nevermind that, as Duane Kerzic points out on his page about the arrest, the 9-11 attackers, the U.S.S. Cole attackers, and Timothy McVeigh, among others, didn’t have photos of their targets. Now that I think about it, John Muhammad and Lee Malvo, the snipers that paralyzed the DC area in 2002, didn’t have pictures on them, either.)

Every law enforcement officer I’ve encountered in our area understands that it’s a right to take pictures in public; the only restrictions I’ve had placed on me are mostly reasonable ones about where I can stand during emergency situations. No police officer or sheriff’s deputy or state trooper has ever tried to get me to delete a photograph. I think it’s because they all understand that part of their jobs, though I’m sure it doesn’t hurt that I am courteous and respectful to them.

But the “photographers are suspicious” rule keeps showing up in the news. One incident I recall was about ten months ago outside Nationals Park in Washington, D.C., when a visitor took a picture that included a Secret Service security checkpoint. The photographer, Mark Butler of Minnesota, wasn’t interested in the checkpoint, but rather in the stadium behind the checkpoint. That didn’t stop someone from the Secret Service from demanding that he delete the pictures, which he did. When a local news station asked the Secret Service about the legality of ordering photograph deletion, they responded that they had the authority to ask for deletion. But, then again, so does anyone else on the planet. Asking is not the same as ordering.

This rule is what got Duane Kerzic arrested. When the arresting officers realized that photography wasn’t illegal, they charged him with trespassing on the train platform, which is pretty weak, considering that he had just disembarked from a train that he had paid to ride upon. If certain parts of the train platform were off-limits to the public, they should have been posted, or better yet, fenced off. I’ll be watching this case as it develops, and I hope he’ll be exonerated.

Pointing a camera is not the same thing as pointing a grenade launcher. Photography in public is your right.

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This entry was posted on February 5, 2009 by .
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