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If one were to take a similar path as Henri Cartier-Bresson in shooting candid street photography today, should they be concerned about laws or other realistic norms of today? I am wondering specifically in the US speaking broadly of all states. I am not looking for legal advice, but anything that one photographer to another would caution against as potentially being grey or obviously illegal.

Similar previous question: Can I publish photos taken in public legally?

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Taking the picture is one thing, publishing it is another. Henri Cartier-Bresson was a photojournalist taking pictures that were to be used editorially by the magazines and newspapers of his time. If you were to take your street photography and put it in a book, such as the many we now see with Bresson's work, you would most likely be sued and would loose based on you not having model releases. –  Dave Nelson Feb 25 '13 at 14:13
    
@DaveNelson: It would depend on the nature of the book. If the photographic content could be judged as editorial the publisher might well prevail in any such lawsuit. If the photographic content was viewed as primarily aesthetic, then the plaintiff would have the stronger case. –  Michael Clark Feb 26 '13 at 0:45

6 Answers 6

Legal Disclaimer

The following is for general information purposes only and should not be taken as legal advice for any particular situation. If you have a specific concern you should consult with an attorney familiar with the relevant issues in the jurisdiction in question.

The question includes the following and the answer below should be considered with this in mind:

I am wondering specifically in the US speaking broadly of all states. I am not looking for legal advice, but anything that one photographer to another would caution against as potentially being grey or obviously illegal.


If the picture is taken on public property you can generally photograph whatever you can see. Courts have ruled that when we choose to enter public places we are not protected by the same expectations of privacy that we have in private places. You may photograph elected officials or private citizens in public places. If there are special events occurring you are subject to the same rules as anyone else attending and must follow special instructions of event coordinators or police directing traffic. You may not disrupt the flow of traffic on public roadways. Again, you are subject to the same rules as anyone else. Sporting events held in public facilities are governed by the rules of the sanctioning body. In the U.S., most college and professional sporting events are strictly controlled. Use of cameras beyond a cell phone or pocket point-and-shoot is not usually allowed without a press credential issued by the sponsoring school or league.

Police, fire, and other public officials have the right to restrict any activity that interferes with their actions. Overzealous officers have often claimed that the photographer's presence near a scene is interference. The courts have ruled in most cases that it is not. Photographers who disregard police directives- even when inappropriately given- can be arrested for disorderly conduct or for interference with a police officer's performance of duty. Disobeying a direct order can possibly constitute a felony.

Cities such as Washington, San Francisco, and New York have tried to ban photography in public transportation facilities such as subways, airports, and train stations but the Courts have ruled they can not do so. Don't be surprised if you are hassled anyway. Public buildings and infrastructure such as bridges, industrial facilities and trains are still perfectly legal to photograph, even after the events of 9/11/2001 and the passage of legislation such as the Patriot Act.

You can take photos on most campuses of higher learning, both inside and outside of classrooms. labs, gymnasiums, etc. If a class is in session, however, you need the professor's or another school official's permission. Residential spaces on publicly owned campuses are restricted the same as private homes or apartments.

You can take pictures of the portions of private property that are readily visible from public right of way. Believe it or not, it is legal to take photos of the lawn, front porch, and even the inside of a home that is visible through windows viewed from the street.

Places that are privately owned but open to the public are a little more restrictive. You may generally photograph in them as long as no one objects. Restaurants and retail establishments would fall under this category. So would the private parking lots of large shopping centers. Many businesses do have policies against photography on their property and it is within their rights to restrict it as they wish. If they have signs posted you obviously shouldn't take any photos. If there are no signs it is usually a good idea to ask first. If you are asked to not photograph in such a place and continue to do so you can be subject to trespassing laws.

Government buildings are public places but often have additional restrictions. There are no specific laws against taking photos in public elementary and secondary schools but the principal has the legal authority to decide who is and who is not allowed on campus, which effectively gives them the power to make that decision. Other school representatives may grant permission when acting on his or her behalf. City hall, state capitols, and the U.S. Capitol fall under special rules that limit public photography. Hospitals, even publicly owned ones, must protect the privacy of their patients and you need a written release from any patient before taking their photo. The inside of an ambulance or medical helicopter would also fall under this category, but treatment on a public sidewalk usually would not. Prisons are much like schools, the Warden gets to decide. Military bases, even if viewed from public roadways, are controlled by the officer in charge and his representatives. State and local courthouses are controlled by the state or the presiding judge, and for many years almost all did not allow photography. Recently that restriction has been eased in some jurisdictions, but normally only photojournalists are allowed access. The U.S. Supreme Court prohibits cameras in Federal Courthouses. Facilities such as CIA, FBI, NSA and other governmental agencies are strictly by permission only.

Photos that are embarrassing or intentionally place a person in a bad light are covered under civil laws. You can be held liable if a court rules your photo defames someone, even if the photo is a "true record of an event".

Children

There are no special rules regarding photography of children in public places, however it is always a good idea to identify yourself to parents or guardians and let them know what you are doing. Photos of "special needs" children have been considered truthful but embarrassing in several notable civil suits, so greater care should be exercised in that area.

In all the cases listed above, you can take photos for your personal or journalistic use, but not for commercial use. Any commercial use of a photo of recognizable persons requires their consent. The consent may be obtained either before or after the photo is taken.

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If you are not a lawyer, or otherwise do not want to take any responsibility for the consequences to readers who read this, you might want to not somewhere "IANAL" (I am not a lawyer). You might also want to make it clearer near the beginning that this applies to US Law, remembering that we have international readers and that your comments may not apply everywhere. –  jrista Feb 27 '13 at 21:03
    
@jrista: Thanks for your concerns. The question includes the qualifier, "... specifically in the US speaking broadly of all states." Unless an answer specifies otherwise it is reasonable for the reader to see it in the context of that qualification in the question. –  Michael Clark Feb 28 '13 at 0:13
    
Readers often don't read the whole question...sometimes just the title. ;) Anyway, the disclaimer is really for your benefit more than anyone elses. –  jrista Feb 28 '13 at 1:48

Legally photographing children and adults is the same - however (and it's a big however)

People get really upset when they think children are in danger - you can be physically attacked by parents, you can be harassed by police, you can be arrested and you can even be convicted and labeled a pedophile for life - even if you didn't do anything illegal.

Don't take pictures of children unless you get permission from a parent/guardian or you think the picture is worth the risks.

Pictures of adults and children together where the child is clearly not the subject are much less risky because they aren't likely to trigger the irrational fear of the strange man with a camera.

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I totally agree with the different perception when children comes into play. I disagree with "convicted and labeled a pedophile for life - even if you didn't do anything illegal". Either you did something illegal (probably something which is tolerated in other circumstances but still is illegal) or you'll very likely get acquitted (but surely you'll endure a lot of trouble). –  Marco Mp Feb 25 '13 at 8:47
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@MarcoMp - so you are saying there are no innocent people in prisons? just think about it, overzealous prosecutor trying to make the headlines, jury all pumped up with news reports about child molesters and a defendant that had a big camera like all those evil terrorists use (Google "war against photography" to see what I mean) - you can easily get convicted without doing anything illegal –  Nir Feb 25 '13 at 10:04
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ok sorry that comment was effectively related more to the country I live in (which has surely many more culprits outside prisons than innocents inside) than the local situation in the US, due to definitely different legal systems. The answer was US centric, so my fault. –  Marco Mp Feb 25 '13 at 20:55
    
btw, sorry to spam but to expand the above, in my country it IS illegal to take photos of a minor without explicit parents consent, so actually it falls on the first case (illegal but usually tolerated). –  Marco Mp Feb 25 '13 at 21:20
    
@MarcoMp - For interest - what country is that? –  Russell McMahon Feb 28 '13 at 2:24

I'm not aware of any laws, in the U.S. or elsewhere, where children have different rights than adults, so in public places, legally (and IANAL) you ought to be ok.

However, that doesn't preclude a parent from becoming upset that you're snapping pictures of their children. I think that would be especially true of places like schools and playgrounds where children and their parents feel they ought to be "safe".

In fact, in New Zealand, a man was convicted of taking pictures of school girls walking to school, in a public place. His conviction hinged on the fact that he was surreptitiously taking the shots from inside a van, and this constituted "voyeuristic behaviour".

So I would certainly be careful about appearing to be furtively taking images, especially of children. The more open you are about what you are doing, the less suspicious you'll appear.

I would also be very careful at places like pools and beaches where kids are not fully clothed. Including them in a wider scene would be fine, shooting individuals, while probably fully legal, would possibly cause trouble with the parents.

There would be others who would object to being photographed on religious or cultural grounds - the Amish would be one example.

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There are two issues here. First, is it legal? Second, will you get beat up by angry parents? On legal issues, don't listen to any advice given on internet forums.

On angry parents, you bet, if you cross some invisible line that is culturally defined (and thus varies) you could get beat up, harassed by the cops, etc. It called being a creep at best and a pervert or pedophile at worst. Parents, cops, judges and fellow prisoners hate pedophiles.

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Sounds like a ton of fun, take some pictures for fun and artistic merit - get labeled a pedophile and beat up! –  dpollitt Feb 25 '13 at 17:52
    
@dpollitt - Legal varies by country and as you are in the US, Michael Clark's answer looks very good. But, do your own research. I'm in NZ. I was disturbed by the NZ court case mentioned. While the man concerned WAS an obnoxious creep and stranger than is liable to be acceptable in society, I consider he was treated very roughly by the system and that he was most unlikely to be reasonably considered guilty under the legislation used against him. There were two different court cases and the second was more open, involved people in a university library, but he was still found guilty. ... –  Russell McMahon Feb 26 '13 at 8:15
    
@Pat FArrell " ... It's called ..." . Indeed. It's called whatever people want to call it, regardless of merit. "Fellow prisoners hate <sic> pedophiles" may often enough be a translation of 'like to find an excuse to feel and be seen as superior morally or whatever and have an 'excuse' to harm others in their own way - possibly with sexual gratification as part of their response'. I understand well enough what you are saying, but you may not. ... –  Russell McMahon Feb 27 '13 at 2:37
    
@Pat ... To say "it's called ... at best" is explicitly stating your personal opinion that photographers who cross culturally defined invisible lines are at best creeps, and quite possibly perverts. If that's not in fact what you meant you may wish to reword it. Note my comments in my answer about how accepting people are in the large majority of cases in China for strangers to photograph their children. Imagine how a Chinese photographer or one from a similarly trusting culture may far in US, or NZ society. You define them as "a creep at best." Yes? –  Russell McMahon Feb 27 '13 at 2:40

Reclaiming the moral high ground [tm] :-) ...

For comments on "street" or people-photography generally see my answer here.

For answers on reclaiming the moral high ground from the creeps and perverts, read on ...

It's interesting to note that while I probably address the or a major aspect of David's question, and others tend not to so, or do so only obliquely, I've had neither votes (up or down) or comments. The few "creep" comments are in separate answers or comments.

But I'm not overly surprised and it's not surprising. This is an immensely emotive subject, and many or even most tend to 'go with the flow' and accept the societal excesses and attached implications. Which is understandable, but a shame. Fleeing into metaphorical 'gated communities' in response to the creeps, perverts, paedophiles and their ilk is similar to the affect that terrorists have obtained in the western world with relatively modest effort. I was (of course) well aware that I was 'sticking my head up' when I 'penned' this answer.

While offence of parents or educators or whoever is not an aim, I consider (voice crying in the wilderness) that photographers might wish to consider reclaiming the moral high ground and not letting the perverts ruin everyone's lives. Doing this while not annoying or disturbing people is the challenge. I usually manage OK. Usually :-).

Legality varies by country and, as you are in the US, Michael Clark's answer looks very good. But, do your own research.

I take many photos of an extremely wide variety of subjects - many of people and many of inanimate objects, scenes etc. I'm careful with photos of children due to societal concerns. All such of my photos are legally taken and I seldom run up against parental concern but it does happen. I'm either very open or "carefully covert" with my photo taking and in the latter case maintain a very active awareness of how others would judge the photos if reviewed. If it suits I'll ask parental permission. If I've taken photos of children without asking parental permission I'll seek out the parents if the situations suits. Here in New Zealand, on one only occasion in recent memory have I been asked to delete photos of a child. That was after I sought out the parent and the photos were wholly innocent by any measure. (I'm legally permitted to take such photos under NZ law but deleted them without complaint. I know that I'm "harmless" - the parent can not be sure.)

I have been accosted loudly on one occasion by a 'grandmother' - in Singapore. I had not taken a photo at that stage. (Shame - lovely (potential) photo of 2 children on a large rug in a shop display.)

I'm occasionally surprised here to find children who advise that parents/aunt or whoever is not there or far off. Nice that the country is in fact very largely trustable but still somewhat concerning. I find that requests to delete photos or expressions of anger or concern are extremely rare. I have had a few other delete requests re adults and in one case re piles of freight pallets. I may comply but in those cases I may well first explain that I'm legally allowed to take the photos and why what I am doing is "reasonable enough". Where children are involved a quietr approach is in order for the parent's sake.

I had one lady approach me at a beach after I'd been taking occasional photos of birds (flying type) and scenery for perhaps half an hour while picnicing with my wife. She demanded that I delete any photos of her and demanded to see my photos. I did not know if she'd happened to get included in any of the photos and was amused, on reviewing them, to find that she wasn't in any She stalked off, wholly unapologetic.

The need to take this sort of care is a shame but there are too many sick people in the world for a photographer to be blissfully unaware of the potential implications of ones actions - even when legal. But equally, the need to not be cowed by PC rubbish is, for me, a strong imperative - as you may have noticed if you've read this far :-)


By contrast:

I have taken a large number of photos in Asia in recent years. Mostly China but also Malaysia, Singapore, Brunei, Macau, ... . I find that in Asia and especially in China reaction to one's taking photos of children is almost invariably positive. Whether asking in advance or showing people afterwards almost invariably produces an enthusiastically positive response.

In China younger women seem more likely than older women to give permission, old men are perhaps less likely than old women and young men are usually happy (but more often bemused :-)).

"Last train to Shuanalong" - no arty quality photos here folks :-). Facebook resolution and quality - somewhere between street photography*, trip record and train-of-consciousness street wandering through (mostly) outer city Shenzhen. Many high ISO hand held walking. Some candid "unseen" (sometimes), some with permission. [[* "Genuine" [tm] street photography seems to have to be in monochrome. In fact, the transformation in effect is quite stunning - even if just converting colour images which have not been taken with a monochrome mindset. For trip record / long term memory embedding I find colour better.]].

Move to Asia :-)

enter image description here

Higher resolution version here - 7900x 2700

FWIW - and how much is moot, all the above except perhaps the upper middle one would have had parental or responsible-adult permission given before or afterwards. All these were taken in China. As noted in the text, in my reasonably extensive experience, openly taking photographs of children in public in China is almost always welcomed. **(In China almost every individual child is THE family of the parents concerned - very special). ** I imagine that they are proud to have someone else take an interest in their family. In any situation whether asking in advance or after taking a photo I'd share the results with the responsible adult as of right where possible - as much because they and I would both enjoy the sharing as for any other reason. email addresses often obtained. (Children are a small but non trivial portion of the subjects of photos that I take in China).


Added - mid 2014:

This is of direct relevance to the question.

@Jasmine - Thanks for the comments. Since writing the above I've been in India for 3 weeks, taken many many photos with a very wide range of subjects - and found that they too are much more relaxed about strangers taking photos - not only of children but largely 'across the board'. It's not uncommon to walk along a street with SLR at hip and be greeted by calls of "photo, photo" from bystanders.

And I've had two quite traumatic experiences, one where I took a series of shots (about 10 in quick sequence) of a Magpie flying, found on inspection that two frames just before the end had the bird flying at low level just behind a young girl on a scooter, some distance away. View of girl on scooter was from side rear. Two frames with her and bird were cute enough that I found the parent who was interested. We exchanged email addresses. Saw he was with NZ police. No problem, of course. Or so I thought. Story gets complicated but he subsequently filed a complaint as a member of the public to provide grounds for a police officer to visit me on an unrelated matter where it was claimed a complaint had been laid at another unrelated location. They were looking for "suspects" and used the complaint to enable a plausible 'fishing expedition'. The latter location was a skateboard park which I drive past occasionally and had often wanted to visit when I had time, but had never managed till about 2 weeks after the Magpie photos. At the skateboard park I took 200+ photos - many were of a talented young man (late teens) with a bicycle on a "half pipe". He did several 360 degree backflips (!!!) and a large number of aerial 180 degree jumps - some over my head as I stood on the rim of the 'pipe'. Magic. The visiting police officer lied about why she had visited and the original off duty officer also lied in important ways. As I was unaware of the lies until afterwards I was happily cooperative and provided ALL the photo sequence from the skateboard park plus ones either end of the sequence. She was thus satisfied as to my purposes. [ALL photos taken were completely allowed by NZ law and I was also not obliged to show the officer the photo sequence, but I did]. I subsequently found that the original lies are still on my police record and available to any organisation who asks for a "vetting report". It has the potential to affect any prospective photography work for organisations who decide to ask for a vetting report - as those involved with children are advised to do. This is not how our police system is intended to work. Work in progress :-).

One day at Te Pai - 271 photos

enter image description here

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Thank you for your well thought out answer and shared experiences. I wasn't withholding voting, just haven't had a chance yet to read all answers :P –  dpollitt Feb 28 '13 at 4:11
    
You know, I'm totally in agreement here. We need to do more of this so people understand we are harmless. I take photos of children deliberately all the time, and I've never been accused of being creepy about it. This is at model airplane shows mostly, but occasionally at a park or zoo. I usually wear a name tag, which goes a LONG way toward not looking creepy, and I kinda look like I'm supposed to be there. I'm very careful about what I publish though. See my flickr "People" album... ages range from 4 to 99... flickr.com/photos/77816686@N02/sets/72157637960239743 –  Jasmine May 28 at 0:10
    
@Jasmine - Thanks for the comments. See addition to my answer. –  Russell McMahon May 28 at 15:45

Wellll....your language suggests you're trying a bit too hard. Until you're a noted photographer a la Henri-Bresson, accept that it's creepy to take photos of other people's kids in public without their parent's express consent. Not illegal, just highly disrespectful of a parent's effort to protect kids.

Humans of New York (HONY) does it very successfully, but he engages with the parents and probably gives them full contact information. He is not creepy.

On the other hand, I'm pretty sure that you do NOT have to have a model release for a photo book of street photography. While a book cover does present an issue, in general an art book of street photography does not require a model release for every person whose face or likeness appears in it. So long as you don't ridicule or otherwise create an impression that you're holding the person up for ridicule or to sell a product.service, etc., should be OK.

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Who are you referring to when you say their language suggests they're trying too hard? I don't follow. –  MikeW Feb 27 '13 at 3:26
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R.Mullen - If you are replying to D Pollit, as one would assume you are, then you seem to have been caught up by the general flow of discussion and seem to be replying to language and imagery that others use and he did not. You have in a few words built and demolished several straw men. My comments to Pat Farrell's answer apply equally to your answer. Read them if of interest. It's interesting that you say "Unless you're a noted photographer like ...". How would he become of such note? What characteristic of HB's make what he did somehow non-creepy but what DP asks about somehow non-creepy? –  Russell McMahon Feb 27 '13 at 14:15
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It may be that a little softening of your language would convey your point better. Maybe not. "Creepiness" (Pat's language, not David's) is potentially in the mind of the beholder. Some manage it well enough that all beholders have no doubt :-). But while societal norms may be transgressed only with some risk, it does not guarantee that the character or motives are what they may be thought to be. Parents can, and should, do what is required to protect their children from danger - but if discussion of such matters in a photography forum brings only opprobrium nobody is well served. IMHO :-). –  Russell McMahon Feb 27 '13 at 14:23
    
and depending on where you are, it may well be illegal. In the UK for example it's illegal (or at least many schools and local councils consider it to be) even for parents to take pictures of school activities because that would count as "producing child pornography", in the US parents have been arrested for taking pictures of their own children at the beach for the same reason. Now consider what'd happen if a total stranger started snapping pictures, it'd be a lynch mob if the police weren't there in time to arrest the photographer for his own safety. –  jwenting Feb 27 '13 at 16:36
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Yes, this would probably best be done in the chatrooms, not that I really want to get drawn in much further! –  MikeW Feb 28 '13 at 5:36

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