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.