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Street Photography and The Law

Street Photography and The Law (in New York)

There seems to be some misinformation out there about the constraints the law places on street photography. I am here hopefully to clear some of them up, particularly as the law relates to photography and New York. Of course, in this rather litigious society we live in, I do have to say now that none of this should be construed as legal advice in the formal or informal sense of the word. And, despite anyone’s knowledge here that I am an attorney does not create in any way shape or form an attorney-client relationship. So: to avoid any confusion, please be advised that none of what I say should constitue either legal advice or create any sort of attorney-client relationship. Consult your own attorney for questions.

1) If you want to take my picture, you’ll need to get my permission first: As a general matter, you do not need any permission to take anyones photograph with a normal camera so long as you are in a public place that you have authority and permission to be in.  This means in plain english that if you’re on the street, and your subject is on the street, it’s fair game.  You might start asking, ‘But what about those written releases?’  Those releases you see some photographers giving to their subjects are commercial releases.  It’s essentially a waiver that the subject signs so that you won’t later sue the company if your photo shows up on a commercial.   But if you’re not seeking to sell the work commercially (defined not as simply selling your artwork at a gallery but rather as large scale distribution like commercial products not defined as art) or it’s for news purposes, there’s no reason to seek a permission/waiver from your subject, because you already have it if you are in a public place that you have authority and permission to be in.  See Hoepker v. Kruger (2002); Nussenzweig v. DiCorcia (2007).

When you are in a private place, like a store or museum, then your “rights” as a photographer are more limited depending on the internal rules.  Some photographers believe that any restriction of freedom is a violation of “rights.”  In the United States, and in New York, the law recognizes a balance between the rights of individual and the interests of society.  When it comes to rules about photography in private places, your scope of photography taking can be curtailed.  The more interesting issue comes up in public forums where other types of free speech is allowed.  That’s a whole another series and beyond the scope of this limited post on street photography.  The long and short of it, though, is that if you define street photography as a type of speech and expression that was envisioned by the first amendment to protect, the government has a high standard, a compelling one actually, to establish any curtailments of that right.

2)  It’s against the law to take photographs of kids on the street: Within the framework of normal street photography, there is nothing against the law at all of taking photographs of kids on the street.  But like anything else, the law recognizes reasonableness and notions of common sense.  In other words, if you go around following a child and taking pictures, you are going to get the wrong kind of attention and, more particularly, the police, within the standards of legal interactions on the street as governed in New York by People v. Debour, will have the right to inquire about your activities.

3) You can’t take photographs in the New York City subway: You most often hear this from cops and MTA workers.  This is complete hogwash.  Here’s the MTA rules regarding photography:

Section 1050.9

Restricted areas and activities.

  1. No person, except as specifically authorized by the Authority, shall enter or attempt to enter into any area not open to the public, including but not limited to train operator’s cabs, conductor’s cabs, bus operator’s seat location, station booths, closed-off areas, mechanical or equipment rooms, concession stands, storage areas, interior rooms, catwalks, emergency stairways (except in cases of an emergency), tracks, roadbeds, tunnels, plants, shops, barns, train yards, garages, depots or any area marked with a sign restricting access or indicating a dangerous environment.
  2. No vehicle, except as specifically authorized, may be parked on Authority property.
  3. Photography, filming or video recording in any facility or conveyance is permitted except that ancillary equipment such as lights, reflectors or tripods may not be used. Members of the press holding valid identification issued by the New York City Police Department are hereby authorized to use necessary ancillary equipment. All photographic activity must be conducted in accordance with the provisions of this Part.
  4. No person may ride on the roof, platform between subway cars or on any other area outside any subway car or bus or other conveyance operated by the Authority. No person may use the end doors of a subway car to pass from one subway car to another except in an emergency or when directed to do so by an Authority conductor or a New York City police officer.
  5. No person shall extend his or her hand, arm, leg, head or other part of his or her person, or extend any item, article or other substance outside of the window or door of a subway car, bus or other conveyance operated by the Authority.
  6. No person shall enter or leave a subway car, bus or other conveyance operated by the Authority except through the entrances and exits provided for that purpose.
  7. No person may carry on or bring to any facility or conveyance any item that:
    1. is so long as to extend outside the window or door of a subway car, bus or other conveyance;
    2. constitutes a hazard to the operation of the Authority, interferes with passenger traffic, or impedes service; or
    3. constitutes a danger or hazard to other persons.
  8. Nothing contained in this section shall apply to the use of wheelchairs, crutches, canes or other physical assistance devices.

However, just because the MTA permits photography doesn’t mean you have a carte blanche to do whatever the hell you want, particularly if the police are asking you what you’re doing.  Under People v. Debour, police interactions with individuals on the street are governed by a sliding, four part scale, which is slightly different than the federal system, which affords fewer protections than New York State does.   On the most minimal of levels, Level One, the police must have an objective credible reason to speak with you.  It’s called a request for information.  There’s not much to this and pretty much anything is going to get the police to this level.  After all, part of their job is at least hypothetically, to investigate conduct, and that conduct doesn’t necessarily have to be criminal on its face.  Level Two is a common law right of inquiry which must be supported by at least founded suspicion.  This kind of stop is definitely more pointed in questioning toward the criminal side and, most importantly, as it relates here, the police can request consent to search.  Level Three is a forcible detention based upon reasonable suspicion.  It can resemble an arrest.  This is a Terry v. Ohio kind of stop, which is much more invasive than the prior two.  The final level is the arrest, which requires probable cause.

There could be a slippery slope argument blasted against me about what I’m going to say next but here it goes anyway.  In the society and world we live now, would we not want the police to go up to an individual in the subway taking pictures and begin asking a few questions about what is going on?  Indeed, it’s more of a rhetorical question not simply to try to put yourself in the shoes of society, but more specifically how the law views and treats these types of situations.  The Fourth Amendment, which in the end really governs the nuts and bolts of the majority of the law of street photography as opposed to the First Amendment, is an amorphous living beast.  What may not have been reasonable twenty years ago, as determined by the courts, is now reasonable.  This doesn’t make it right, but to understand, perhaps pessimistically so, that the concept of right has nothing to do with the law.

Issues with street photographers in the subway generally revolve in the Level 1 and Level 2 stages.  Remember, though, Debour is a sliding scale, which means things can rapidly escalate depending on the circumstances.  Thus, in a Level 1 inquiry where a police officer asks, “Excuse me, what’s going on with the photography?”, and your response is, “I don’t have to tell you anything asshole because I have the right not to say anything,” is just going to lead to more questions by the police.  You certainly don’t have to even answer the question, but then again you don’t have to look both ways when you cross the street either.  Depending on the circumstances, and mind you, the law views the circumstances in the eyes of a reasonable police officer, not your subjective views, it would be reasonable for the police to continue to ask you questions, and probably more pointed questions that will make you feel uncomfortable.  Probably best to say what you’re doing.  If they ask you they want to see your pictures, then it’s best to either show them a photo or draw a line the sand in the most polite way possible.

4) It’s against the law to take pictures of police: There is no law forbidding you to take pictures of the police so long as you are in a public place.  Like everything else with the law, there are exceptions.  If your actions obstruct the administration of their lawful duties, and that’s a big fucking if, your right to photograph will be curtailed.  For instance, if they’re trying to arrest someone and you get in the middle of it, literally in the middle of it, you could arguably be obstructing governmental administration.  It’s the conduct that the crime of “OGA” is technically punishing, not the photography.

NY Penal Law Section 195.05 Obstructing governmental administration in the second degree. A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor`s intent that the animal obstruct governmental administration.

5) You can’t take pictures of buildings or bridges: There’s nothing in the law that prevents you from doing this.  The laws about taking photographs from the bridge (some bridges, such as the George Washington, have signs like this) are, at least arguably, permissible under the law under the theory that the expected act of taking photographs from where the signs are posted forbidding them would be dangerous to traffic.

And one final word. Just because you know the law doesn’t mean the cop does. And unless you have a badge of some kind, arguing with a cop about the law — as a general rule — rarely ends well. If you are going to argue, make sure you keep your arms to the side and never, ever push a cop or hit a cop unless you want to spend the night in jail. In New York, there is essentially no such thing as a valid self defense claim against a cop who is trying to effectuate an arrest. That is not just some observation. It’s the law. See generally Penal Law Section 35.27. The arrest doesn’t even have to be a valid one for this provision to apply. As you can see, the whole thing is a fucking set up . . . so just be careful.

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17 Comments

Post a comment
  1. July 4, 2011

    Great information…thanks for posting.

  2. December 25, 2011

    …so it should be easy then…..but I guess its not.

  3. djdanmax #
    August 23, 2012

    Thanks for the post!
    Really well worded. Now I can tell people in much better depth about the laws surrounding street photography!
    Thanks!

    – Daniel Perianu

  4. Paul Cretini #
    October 16, 2012

    Thanks kindly for the time taken to post this.

  5. October 20, 2012

    Interesting article, i have a question tho. Usually NY police is friendly, many times even posing for photos, but what’s the reason when they just ask you not to take a photo? Think about police standing around subway, armed police with larger guns etc. – is it just a security prevention, let’s say, when they’re in civil dress they can’t be recognized or can they have anything else against a photo ?

    • Rufus Mangrove #
      February 25, 2013

      Police are people, and just like people, not everyone likes to be photographed. The problem is when a cop with a gun says, “Don’t take my picture,” it certainly doesn’t sound like a suggestion but an order grounded in the law. But there is no law against taking pictures of police in New York, except under some limited circumstances.

  6. Dennnnnnnniiiissssssssssssssssssssssssssssssssssssssssssssssssssssssssss #
    March 9, 2013

    my pol science prof said woman are allowed to be topless in nyc and its not against the law is that true

    • July 19, 2013

      It IS legal for women to be topless in NYC , that is true…Google photographer Holly Van Voast and see how she was arrested but won her battle in court.

  7. March 30, 2013

    This is a good example of the proper rules of street photography. Thank you for posting.

  8. May 3, 2013

    When I initially left a comment I appear to have
    clicked on the -Notify me when new comments are added- checkbox
    and now whenever a comment is added I get 4 emails with the exact same comment.
    Is there a way you can remove me from that service?
    Thanks a lot!

  9. July 28, 2013

    thanks, for the info, I’ve been shooting for a few years here in NY, and sometimes I have come across some MTA workers, who do not like me to shoot around there, what I mean, take photos in the Subway, one day a guy was so nasty with me, and wanted to know for what purposes would take the photo, so he say, – now the rules have changed a lot since 9/11, is for safety of all New Yorkers, to what I answered with a smile that said I wanted some memories of the city and will put them on my website, so then he smile too, and let me take some pics more.

    • Rufus Mangrove #
      July 29, 2013

      Freddy: Great story my man. Sometimes the best way to disarm confrontation, especially by law enforcement or pseudo law enforcement, is to be calm and smile. Thanks for sharing! Best, Rufus.

  10. September 26, 2013

    I was warned by a bar owner today that I could be sued etc etc taking photos of the inside of their bar. If not by them, then, by the patrons. Obviously the staff saw that I wasn’t just taking one or two photos, which you can easily get away with, more like 10 with the camera in full view on the counter. So he approached me as I was leaving and said all that, which is fair enough. There were actually two police insode the bar at the time and they didn’t notice me (had taken a few shots of them entering the establishment anyway). I was cool about it though. I just said that the photos are for private use. Even though I knew I was in a private place, I thought “Spain is 20 years behind the times perhaps I can get away with it”. I am a regular customer, coming in every other day so I thought I wouldn’t cause much of a stir. I didn’t deny taking any photos of course, but I still claimed ignorance: “there are no signs anyway prohibiting photography”. That’s when the chap says “if one of the photos ends up on the internet blah blah blah”. Whatever. I just walked away and said I won’t do it again. I won’t do it again there, no. It is just going to make me try all that much harder to get good quality, interesting street photos, from public places though. If I do go into a shopping mall etc I’ll just pop off a couple and that’d be the end of it…

  11. September 26, 2013

    The ironic thing was that he said “we are filming everything, it’s all recorded”.

    By the time I got to my car, I was like “hey so it’s okay for you to film us but not the other way around?!”

    That’s the world we live in.

    • Dean Leslie Brown #
      April 6, 2014

      Your ignorance is glaring. Security cameras film and capture people as a) a deterrent for crime and b) an evidentiary log for crime, should one take place. Security camera images are not for the artistic advancement, I use artistic loosely–taking photos of bar patrons is not the most creative endeavor, of the establishment owner. Security camera logs are also not published on self-indulgent blogs to garner traffic. Lastly, security cameras also own up to their presence and generally can be spotted the moment one enters an establishment. If not, there are signs that indicate their presence. Do not compare trying to photograph unwitting patrons attempting to have a carefree time at a bar–a reasonable expectation at a private establishment that serves alcohol–to private cameras in place to secure their safety.

  12. March 15, 2014

    do not ever try to shoot cops in their attention..you might get fought for no reasons..

  13. June 10, 2014

    Thank you for this article. It helped settle a question today. I’ve been told for 14+ years that it’s illegal to take pictures in the subway. Told by acquaintances in acting/directing and you would think they knew what they were talking about. lol Apparently they meant their kind of filming and pictures and not casual, personal use. I have seen someone ask if they could take a cop’s picture and be told no. The trick is to not ask first. If you don’t ask to do a perfectly legal thing, you cannot be told no. Be a distance back (like across the street), snap your picture and be on your way.

    Regarding topless in NYC — As I understand the law, a woman may be topless anywhere a man can be topless. So she can walk around Times Square topless if she wants, but have to put on her shirt to go have lunch inside a restaurant. Every year (about this time) the memo goes out to police stations reminding them of this law and that the “15 minute of fame” girls will be coming out for their chance at a lawsuit.

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