5 Things to Know When Taking Photos

snow-goose-blue Copyright Carolyn E. Wright

Here are 5 things to know when taking photographs:

  1. Your photo is protected by copyright the second you take it.

A copyright is created at the moment a work is made into a fixed form. For authors, the copyright is created when you type the words on your computer. For photographers, it is created at the click of the shutter. For artists, it is created when the paint is applied to the canvas. Copyright law protects both unpublished and published works, regardless of whether they have been registered with the U.S. Copyright Office.

  1. You can (and should) use the copyright notice with your photo without registering it.

You don’t have to register your photos with the U.S. Copyright Office to post a copyright notice with them.  The official copyright notice has three parts: the first part is the © (the letter “c” in a circle), the word “Copyright,” or its abbreviation, “Copr.”  The second part notes the year when the work was first published.  The third required part of a copyright notice is the name of the copyright owner.  The final form looks like this: © 2016 Carolyn E. Wright.

While the copyright no­tice is no longer required for copyright protection, it is a good idea to use it.  It will remind others that your photos are protected by copyright. When you post a copyright notice with your registered images, then the infringer cannot claim that the infringement was innocent and a court is more likely to find that the infringement was willful, supporting the maximum in infringement damages.

  1. As the copyright owner of a photograph, you have exclusive rights to it.

When you own a copyright to a photograph, you have the sole right (also known as the “exclusive right”) to:

  • reproduce the copyrighted work;
  • display the copyrighted work publicly;
  • prepare derivative works based on the copyrighted work; and
  • distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

except when the use is a “fair use.” Learn more at https://www.photoattorney.com/the-fuss-about-fair-use/

  1. You may take photographs of things that are visible from public spaces.

No law prevents property from being photographed from a public area, including bridges, buildings, homes, airports, and accident scenes.  However, a property owner may restrict your photography when you are on the owner’s property.

  1. You may take photographs of people in public.

As long as people, including children, do not have an expectation of privacy, then you may photograph them. People have an expectation of privacy such as when they are in their home with the curtains closed (but not if the windows are not covered) or in a dressing room or bathroom.

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FAA Releases B4UFLY Smartphone App

Mt Tallac Aerial-Copyright Carolyn E. Wright

The Federal Aviation Administration (FAA) has released the B4UFLY mobile application to inform users about current or upcoming requirements and restrictions in areas of the National Airspace System (NAS) where they may want to operate their unmanned aircraft system (UAS).

“We expect B4UFLY will help raise public awareness about what it means to operate unmanned aircraft safely,” FAA Administrator Michael Huerta Huerta said at the Consumer Electronics Show in Las Vegas, NV. “It is another important part of our education and awareness efforts to foster a culture of safety and accountability for the UAS community.”

The B4UFLY app includes a number of enhancements the FAA developed as a result of user feedback during the beta testing announced in May 2015 . Within two taps, users know if it is safe to fly at their current location. The app provides a status indicator that tells users: “Proceed with Caution,” “Warning – Action Required,” or “Flight Prohibited.” The app also features a planner mode that allows users to select a different time and location for an upcoming flight and determine if there are any restrictions at that place and time.

By law, hobbyists who want to fly within five miles of an airport must notify the airport operator and the air traffic control facility (if there is one) prior to flying. For now, B4UFLY will ask users who are supposed to notify the airport before flying for voluntary information about their planned flight. This will not meet the statutory requirement to notify the airport and air traffic control facility, but the data will help the agency make informed policy decisions related to notification. This information will not be publicly available.

You can find more information on our B4UFLY webpage.

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Do You Need a Permit to Photograph in Wilderness Areas?

Wild Stallion Fight - © 2014 Carolyn E. Wright (Taken on BLM Land)

Wild Stallion Fight – © 2014 Carolyn E. Wright (Taken on BLM Land)

This is a guest blog entry by Photographer Jeff Conrad (check his great Sun/Moon Calculator and article on Depth of Field), who has followed the legislation on permits to photograph on public lands for years, including this blog post in September 2013. Thanks for his clarifications and information on the recent proposal about photographing in wilderness areas below:

Permits to Photograph in Wilderness Areas?

By Jeff Conrad

A recent proposal (Federal Register, September 4, 2014) to revise the Forest Service Handbook has attracted considerable attention in the media, and has raised concerns among journalists and some amateur still photographers. Some articles have suggested that any filming or photography in a wilderness area would require an expensive permit (which might not even be issued), and that photographing without such permit could result in a $1500 fine. A petition on change.org opposing the proposal has gathered over 35,000 signatures.

The effect of this proposal is actually quite minor, serving mainly to clarify current wording that allows a permit to be issued

If it is to occur in a Congressionally designated wilderness area, and the activity contributes to the purposes for which the wilderness area was established.

The proposed wording is a considerable improvement, but some of the language is still vague, and should be clarified.

Although the impact of the proposal per se is minor, there are some issues with the overall FS rules for filming and photography; these rules apply to all National Forest System lands rather than just to wilderness areas, so their effects are far reaching. Because they result from regulation and policy outside the scope of the proposal, they cannot be addressed simply by revising the proposal.

Issues with the Proposal

The proposal essentially grants low-level enforcement personnel unfettered discretion to deny a permit. At the very least, it should be made clear that this does not apply to members of the press; preferably, some additional safeguards should be added reduce the chances of arbitrary issuance and denial.

The proposal specifically excludes “noncommercial still photography,” but the term is not defined, inviting photographers and enforcement personnel to synthesize a definition—probably not a good idea. This section does not come into play unless a permit is already required; accordingly, the exclusion appears to be without effect, so it could simply be eliminated.

Issues with the Regulation and Other Parts of the FSH

That so many people have failed to see the proposal in the context of the overall regulatory scheme suggests that the scheme is not as clear as it should be. But there also are substantive issues, not the least of which is the potential infringement of freedom of the press. Thomas Tidwell, Chief of the Forest Service, has recently given assurances that permit requirements will not be imposed on the press. But as several people have noted, an assurance that is at odds with regulation or formal written policy is at best tenuous, subject to revocation on a whim or change of personnel. For Chief Tidwell’s assurance to be meaningful, the regulation–and parts of the FSH—must be revised.

Issue with 36 CFR 251.51: Freedom of the Press

The regulation specifically excludes the coverage of “breaking news” from permit requirements, implying that coverage of other news does require a permit. The exclusion should be extended to any bona fide journalism, including, at the very least, that involving established freelancers. Unless the regulation is revised, Chief Tidwell’s assurances ultimately will not be very reassuring.

Issues with Other Parts of FSH 2709.11

Definition of “Sets and Props”

Public Law 106-206 prohibits requiring a permit for still photography unless the photography involves the use of “models” or “props.” These terms had well-established meanings in the context of regulating photography, but for some reason, the FS provided new definitions of these terms in FSH 2709.11, Chapter 40, and added the use of “sets” to the permit criteria. The definitions give meanings these terms have never had; especially novel is the inclusion of equipment in the definition of “sets and props.” And that definition could be read as implying that anything other than camera and tripod is a prop; if this is indeed the intent, it is poorly thought out. Taken literally, it would require a permit for a flash, a camera and long lens supported by two tripods, a camera mounted on a monopod, a camera resting on a folded jacket, a handheld light meter, a small collapsible reflector or diffuser, a laptop or tablet computer, a smartphone with a photography app, a camera bag, and many similar items. It is difficult to believe that Congress intended for use of such items to require a permit and proof of insurance. Perhaps it could be argued that common sense would control, but this would essentially delegate determination of what is a “prop” to low-level enforcement personnel, offending due process and inviting conflict with photographers who may have quite different ideas of what is a “prop.” So far, the definition does not appear to have led to significant problems, but it may simply be a matter of time—much like assurances that permits will not be required for the press when regulation and policy suggest precisely the opposite.

In theory, lists of equipment that does and does not require a permit could be refined. But in practice, this has proven an exceedingly difficult task, and nearly every attempt at doing so has failed miserably. The problem could be far more easily fixed by revising the definitions to give the same effect as former 36 CFR 5.5(b) on which the still photography provisions of Pub. L. 106-206 were modeled. Although that regulation was not perfect, it worked well in national parks for almost 50 years.

Still vs. Motion Images

There is an additional complication: digital imaging technology has changed considerably since Pub. L. 106-206 became law in May 2000. Most current cameras—including those in cell phones—can record motion as well as still images, and in many cases, it is impossible to determine which type of image is being recorded. Consequently, the distinction between still and motion images is probably no longer a valid criterion for determining when a permit is required. The issue could be addressed by a suitable definition of “commercial filming”; a starting point might be to eliminate “the creation of a product for sale” as an element of the definition—or at least modify its description.

History of the Current Regulations and Directives

It is easy to forget that the original objective of the legislation that resulted in Pub. L. 106-206 was simply to eliminate a provision at 43 CFR Part 5 that prohibited the National Park Service from charging location fees for commercial filming. For some reason, the scope expanded far beyond this objective, delaying the legislative process and leading to language more complex than was needed, without really providing any additional benefit. Despite the many permutations in the wording of the various bills, the resulting statute was reasonably short and simple; it could have been quickly and easily implemented by incorporating the essence of former 36 CFR 5.5 on which the statute was modeled, with a few minor modifications. But the regulations eventually issued by the FS and the DOI agencies went far beyond what was needed to implement the statute, again providing little benefit over previous regulations. The simple regulation at 36 CFR 5.5 and similar policy for still photography in the Forest Service Manual at 2725.51 were replaced by regulations, directives, and other policies that are lengthy, convoluted, and in some cases ambiguous. Some common terms are redefined in a manner so novel that it is difficult to believe they represent what Congress intended. And the possibility that permits may be required for press coverage of anything other than breaking news would seem to infringe the freedom of the press.

Conclusion

Changing a regulation entails considerable effort, so it preferably is done infrequently. But here a change seems unavoidable if freedom of the press is to be ensured. The additional issues discussed above could also be addressed with reasonable additional effort. Given the threshold effort required for even a minor change, it would seem far more sensible to address all of the issues at once rather than to deal with each one separately.

__________________________________

In addition, NPPA sent a letter to the Chief of the U.S. Forest Service and NANPA has issued a statement on the matter. You may submit a formal comment on the proposal by December 3, 2014 (on the right hand side of the webpage, click Submit a Formal Comment). Gabby Salazar, NANPA’s President has suggested that you include in your comment, in your own words, points such as these (and to encourage other nature photographers to do the same):

I am a nature photographer, a member of NANPA, and a patron of our nation’s public lands, including USFS wilderness areas. The policies as proposed are overly vague and ambiguous and should be clarified as follows:

1. No permit or fee should be required to photograph in areas where the public in general is allowed.
2. No permit or fee should be required for photographers who use cameras on a speculative basis to photograph or film without an immediate market outlet for their work. Such activities are not a “commercial use or activity.”
3. No permit or fee should be required for news-gathering in general or for journalists on assignment for editorial purposes. 
4. Permits and/or fees may be required when the photography or filming involves product or service advertisements, the use of models, actors, sets, or props, damage to resources, unacceptable health or safety risks, or significant disruption of normal visitor uses.
5. Overly vague and subjective policy criteria such as those found in 45.1c(5)(a), (b) and (c) should be eliminated from the proposed policies.

Thanks to Jeff, NANPA, and NPPA. Let’s all work together to protect photographers’ rights!

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Texas Statute Limiting Photos of People Found To Be Unconstititional

 

Girl at Beach - Copyright Carolyn E. Wright

As addressed in my November 4, 2007, blog entry, photographers in Texas first had to consider whether their photography violated Section 21.15 of the Texas penal code, which states:

 A person commits an offense [of improper photography] if the person:

(1) photographs or by videotape or other electronic means visually records another:

(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person; or

(2) knowing the character and content of the photograph or recording, promotes a photograph or visual recording described by Subdivision (1).

Recently, however, Ronald Thompson was charged with violating part 1 of this statute for taking photos of women in swimsuits at a water park. He sought a writ of habeas corpus, asserting that the code section was “facially unconstitutional in violation of the freedom of speech guarantee of the First Amendment.” On appeal, the Texas Court of Criminal Appeals agreed and struck down the statute.

On behalf of Texas, its State Attorney presented many arguments in support of the statute, including that the taking of photographs is conduct and therefore not inherently expressive. The State claimed that “[p]hotography is essentially nothing more than making a chemical or electronic record of an arrangement of refracted electromagnetic radiation (light) at a given period of time.” The State also contended that the act of pushing the button on the camera to take a picture was not necessarily communicative.

In addition, the State asserted that the specific-intent requirement of the code did not invoke any First Amendment implications because the statute “regulates a person’s intent in creating a visual record and not the contents of the record itself.” Moreover, and significant to the right of privacy concerns for photographers, the State claimed that:

[T]he lack-of-consent requirement means that the statute does not apply to a photograph of a person in public as long as the photograph is of an area of that person that was exposed to the public. The State argues that any person who appears in public and exposes a certain part of the body to the public has necessarily consented to that part being photographed, and therefore, the improper-photography statute would not apply. But, the State reasons, if the person is not in public, or the photograph is of an area of the person that is not exposed to the public—such as the use of an X-Ray camera that can see through clothing or a photograph taken up a woman’s skirt—then the improper-photography statute would criminalize such behavior if done with the requisite intent. This construction of the term “consent,” the State argues, would negate any First Amendment implications of the statute.

But, after following the required Constitutional analysis, the Court disagreed with the State and held that “a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.” The First Amendment “is implicated by ‘constitutionally protected speech when that speech is coupled with constitutionally protected thought.'” Even when considering photographs of animal cruelty, obscenity, and child pornography, the U.S. Supreme Court has not questioned the expressive nature of visual images, saying that laws directed at quashing those images “run the risk of suppressing protected expression.”

In sum, when considering the State’s argument that the Constitution did not protect the “taking” of photographs, the Court found no difference between the process of creating the end product from the end product itself. It stated: “We conclude that a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.”

The Court finished its analogy with this significant note:

[In a prior case,] this Court expressed its incredulity that reasonable suspicion could arise from taking photographs in a public place: “Photographs are routinely taken of people in public places, including at public beaches, where bathing suits are also commonly worn, and at concerts, festivals, and sporting events.” “Taking photographs of people at such venues,” the Court said, “is not unusual, suspicious, or criminal.”

Yes, indeed!

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Is a Permit Required for Photography on Public Lands?

El Capitan in Clouds - Copyright Carolyn E. Wright

Background

As far back as 2005, we have been reporting here about photographers being falsely told that they need a permit to take photographs in National Parks and on federal lands. In 2008, NANPA shared its attempts to clarify the laws on this. Photographer Jeff Conrad (check his cool Sun/Moon Calculator) has an extensive summary on the laws on this issue.

On August 22, 2013, the Department of the Interior published the new rule to establish permits and reasonable fees for commercial filming activities or similar projects and certain still photography activities in an effort to clarify when a permit is required.

When a permit is required

Most significant to photographers, the rule: “Defines commercial filming and still photography and explains which activities require a permit, thereby ensuring consistency among agencies in the Department of the Interior (DOI).”  The pertinent part of the new rule states:

§ 5.2 When do I need a permit for commercial filming or still photography?

(a) All commercial filming requires a permit.
(b) Still photography does not require a permit unless:

(1) It uses a model, set, or prop as defined in § 5.12; or
(2) The agency determines a permit is necessary because:

(i) It takes place at a location where or when members of the public are not allowed; or
(ii) The agency would incur costs for providing on-site management and oversight to protect agency resources or minimize visitor use conflicts.

(c) Visitors do not require a permit for filming or still photography activities unless the filming is commercial filming as defined in § 5.12 or the still photography activity involves one of the criteria listed in § 5.2 (b).

§ 5.12 defines:

Model means a person or object that serves as the subject for commercial filming or still photography for the purpose of promoting the sale or use of a product or service. Models include, but are not limited to, individuals, animals, or inanimate objects, such as vehicles, boats, articles of clothing, and food and beverage products, placed on agency lands so that they may be filmed or photographed to promote the sale or use of a product or service. For the purposes of this part, portrait subjects such as wedding parties and high school graduates are not considered models, if the image will not be used to promote or sell a product or service.

Sets and props means items constructed or placed on agency lands to facilitate commercial filming or still photography including, but not limited to, backdrops, generators, microphones, stages, lighting banks, camera tracks, vehicles specifically designed to accommodate camera or recording equipment, rope and pulley systems, and rigging for climbers and structures. Sets and props also include trained animals and inanimate objects, such as camping equipment, campfires, wagons, and so forth, when used to stage a specific scene. The use of a camera on a tripod, without the use of any other equipment, is not considered a prop.

In response to Comment 1, the rule explains:

The general rule is that still photography does not require a permit. We have edited the language of 43 CFR 5.3(b) to clarify the still photography permit requirements of Public Law 106–206 and renumbered it as § 5.2(b). This regulation implements the three circumstances listed in the law where a permit for still photography is or may be required. We will require a permit for still photography when the activity uses models, sets, or props, and we may require a permit when the photographer wants to enter an area closed to the public or when on-site management is necessary to protect resources or to avoid visitor conflicts. However, we anticipate that most still photographers will not fall into these categories and will not need a permit to take photographs on lands managed by DOI agencies.

What you pay for a permit

If your photographer activity is commercial, the next question is what you pay for the permit. The Department of the Interior and the Department of Agriculture propose to adopt a fee schedule for commercial filming and still photography conducted on public lands under their jurisdiction. The specifics of the proposal are available at http://www.gpo.gov/fdsys/pkg/FR-2013-08-22/html/2013-20440.htm. Written comments on the proposal will be accepted until Monday, September 23, 2013, and should be submitted to: location_fee_notice_2013@nps.gov (put “Commercial Filming Fee Schedule” in the subject line). Jeff Conrad has authorized us to share his comments here.

In sum, the new rule appears to be good news for photographers. We hope now that the Rangers will stop hassling photographers.

 

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Tomorrow Morning: Press Conference on Major Legal Action concerning Suffolk County Police Department

FOR IMMEDIATE RELEASE

 April 9, 2012 — Tomorrow at 9:45 a.m. in Central Islip, the New York Civil Liberties Union, the law firm of Davis Wright Tremaine, LLP, and the National Press Photographers Association will hold a media availability to announce a legal action regarding Suffolk County’s policy and practice of obstructing the First Amendment right of the press and the public to record and gather the news about police activity in public places.

The legal action concerns a July 2011 incident in which professional video journalist Philip Datz was unlawfully arrested and detained by Suffolk County police while filming police activity on a public street in Bohemia, NY.

Mr. Datz, Attorney Robert Balin, a partner with Davis Wright Tremaine, and NYCLU Suffolk County Chapter Director Amol Sinha will be available for interviews tomorrow starting at 9:45 a.m. at the NYCLU Suffolk County Chapter’s office, which is located at Touro Law Public Advocacy center, 225 Eastview Drive in Central Islip. Mickey Osterreicher, NPPA General Counsel will be available by telephone 716.983.7800.

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Photo Attorney Returns to TWiL (This Week in Law) #141

I had the recent pleasure of joining TWiL (This Week in Law) again. Hosts Denise Howell and Evan Brown and guest Marty Schwimmer and I discussed privacy issues, including taking and posting photos of kids, my recent DMCA take-down experience, SOPA, and more in Episode #141. Check my other appearances on TWiL in Episode #56 and Episode #124.

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