Malls, Stores, Banks, Etc.
Q: I'm always confused about when you can and when you can't photograph people out in public, such as at a park, or a store, or a professional or high school football game. I mean as long as I'm conducting
A: Yes, you are on the right track. It's the 'use' of the picture that counts. As an editorial photographer you have a wide range of permissions. The publisher you deal with is generally aware of this range and will use your picture accordingly. Rarely will the publisher ask for a model release.
However, if you also venture into the area of commercial photography, then the door closes and you have less flexibility in the use of the picture. And a model release will be required by the company or stock photo agency wishing to use such a picture(s).
As for editorial pictures taken in public, the general rule is that if you are not trespassing, such as over a police barrier, or past a posted sign that requests you 'do not enter,’ you are free to take pictures in public. If a company such as a bank, cruise ship, mall, etc. is open to the public, the courts have ruled that these are public places and you are free to photograph.
Let's take the example of a mall. Malls and department stores will sometimes have a house rule to not allow photographs. They have good reasons, and mostly it's to protect their public relations, employees, insurance coverage, or trade secrets. If you encounter a security guard at such a place who says you cannot photograph, gauge the specific circumstances, and in some cases it might be best to conform to his/her wishes. But in most cases you are free to photograph, even though a security guard at a mall says you cannot. If a security guard attempts to prevent you from taking a picture, consider the reason why. It may be that you would be intruding on something the company he/she represents would rather not be photographed.
However, as an editorial photographer, your mission is important too. The decision is up to you. The time you spend battling the security supervisor or the manager of public relations at the company (remember you are within your rights to photograph) might not be worth the effort. It might be wiser to simply go to a different mall to photograph. But, if for some reason you elect to persist and take the pictures anyway, the mall company is not within its rights to take your film or camera. That would be against the law.
An interesting point here is that although you are free to photograph in a mall, an employer might not be free to do so if the intent is to intimidate his/her employees. The courts have ruled that would be against the law.
Schools are another situation. Most public schools are doing an excellent job and often welcome your professional picture-taking expertise, providing you coordinate with the instructors and administrative personnel through the proper channels to get permission.
Today's sensitive political climate is not conducive for taking pictures in public, but this may give you -- as an editorial photographer -- even more reason to get the pictures you feel are important to capture for your area of image
Some states have varying laws regards photographing in public. There are exceptions to the right to photograph people in public. Courts have been extremely protective of medical patients, for example. Photographing them may be your right, but a publisher publishing such photos might get themselves into a court case.
Another example of an exception would be if a person out in public has "the expectation that he or she can be private, even in a public area." A famous Alabama Supreme Court case ruled that a newspaper was not in the right to publish a photo of a woman leaving a fun house when an air jet blew her dress above her waist.
Another area is what is called, "the tort of intentional infliction of emotional distress or outrageous conduct." It means that if a photographer exceeds the bounds of public decency and causes emotional distress that a reasonable person would not be expected to bear, the situation might be sufficient to support a legal claim.
Again, in editorial photography, 99% of the time it's the publisher, not the photographer, who makes the decision to use the picture and is ultimately responsible for the outcome. The basic factor comes down to how the picture is used. Publishers stand ready to protect their photographers from browbeating by public institutions that would prefer not to have their failings exposed.
Rohn Engh, veteran stock photographer and best-selling author of “Sell & ReSell Your Photos” and “sellphotos.com,” has helped scores of photographers launch their careers. For access to great information on making money from pictures you like to take, and to receive this free report: “8 Steps to Becoming a Published Photographer,” visit http://www.sellphotos.com
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