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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?
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 who has access to the prison but you must also have permission of any identifiable prisoner in your photo. 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.
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, pdfls 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 :-)
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
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.
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.
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.
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.
