Ten years after 9/11 police and security personnel still get it wrong when it comes to the rights of Americans to use cameras in public places.  Citizens continue to be harassed for using their cameras in completely legal ways in public spaces all under the guise of security.  In response Joseph Gordon-Levitt (Third Rock from the Sun and 500 Days of Summer) collaborated with the Gregory Brothers and the ACLU to make this cartoon that reminds everyone of the rights of photographers.

…there were restrictions on professional cameras and tripods because we were concerned that people using them could delay the tours for others.

Not exactly the same thing as what the sign out front states.  The journal has requested further information to clarify the Transport Museums discrepancy.   I’ll update if they find out anything juicy.

ACLU Review of Photographer’s Rights

- Morgan Leigh Manning – Less Than Picture Perfect: The Legal Relationship Between Photographers’ Rights And Law Enforcement

Although this over simplifies a very complex legal system, it is the basis of a battle that has brewed for 10 years between photographers and law enforcement (both public and private).  The tragedies of ten years ago in New York, Washington D.C. and Pennsylvania have been used as an excuse to curb the rights of both professional and amateur photographers in America (and the UK, although I am only focusing on the US here) to photograph.  A recent analysis of the photographers’ right situation in America by Morgan Leigh Manning of the University of Tennessee at Knoxville is titled Less Than Picture Perfect: The Legal Relationship Between Photographers’ Rights And Law Enforcement and it reviews this “battle” and what the laws of the  US really say about photography and maybe more importantly, what they do not say.

Manning presents numerous cases where the rights of a photographer have been violated since 9/11 in the us; reviews what US law actually says in relation to photography, no it is not a free for all with everything allowed, but the limitations are very narrow and specific; and discusses options for recourse after an encounter with law enforcement and why they may or may not work.  The paper also addresses the implications of the erosion of photography rights and what those rights have meant to the history of the US.  Finally Manning offers some solutions for photographers and the legal community on how to combat and address this problem that persists in spite of no legal ground to stand on.

There is a fair amount of legalese in this paper, as it is a scholastic legal writing, but it is not so much that the average photographer will not understand it.  I think it is well worth the read.  As photographers we all need to know, understand and protect our rights.  You can download Less Than Picture Perfect: The Legal Relationship Between Photographers’ Rights And Law Enforcement here.

For at least two reasons, the argument that the heightened regulation of
the right to take pictures in public places enhances national security or
public safety is deeply flawed. First, the prevailing evidence indicates that
the perpetrators of past terrorist attacks never photographed their targets.
Why would they need to, after all? The Internet and modern technology
have made it possible to obtain pictures of most structures, especially ones
located in urban areas, with the click of a mouse. For example, Google
Earth provides images of almost any address in the country from a variety
of distances and angles.

Second, even if terrorists did photograph their targets, it would be
totally impractical to try to stop them. Bruce Schneier, an internationally
known security technologist and author, notes:

Billions of photographs are taken by honest people every year, 50 billion
by amateurs alone in the US. And the national monuments you imagine
terrorists taking photographs of are the same ones tourists like to take
pictures of. If you see someone taking one of those photographs, the odds
are infinitesimal that he’s a terrorist.

Questioning for the purpose of identifying potential terrorists persons
taking pictures of the Empire State Building in New York City or the White
House in Washington, D.C., makes less sense than trying to find a needle in
a haystack, because, chances are, the needle does not exist.

Manning, Morgan Leigh, Less than Picture Perfect: The Legal Relationship between Photographers’ Rights and Law Enforcement (June, 03 2011). Tennessee Law Review, Vol. 78, p. 105, 2010. Available at SSRN: http://ssrn.com/abstract=1857623

Prior to the late 1990s, when Creative Commons came into existence, there was only copyright law.  In the 1976 Copyright Act a copyright is defined as giving the author or owner of the copyright an exclusive right to control how their copyright work is used, reproduced and distributed.  Copyright applies to “original works of authorship” which can be literary, musical, dramatic, artistic or other intellectual work, whether published or unpublished and remains valid for 70 years after the death of the creator.  You also don’t have to register a work for it to be copyrighted.  The copyright applies as soon as it is recorded, written down, captured on film or sensor, drawn on paper, etc.  However, in the US at least, registering your copyright with the US Copyright Office can give you additional rights and recourse if those rights are violated.

So isn’t that good enough?  In many cases yes.  However, with the rise of the internet, sharing creative works rose as well, both legally and illegally.  Some thought that copyright laws, as they were currently written and enforced, were not flexible enough for the age of the internet and digital works.  So the Creative Commons was designed to be a less stringent method of copyright that fostered increased access to and sharing of intellectual and artistic works while still giving the original creator of the work some degree of protection.  With Creative Commons the artist, author or creator is given the ability to decide which rights they want to keep and which they chose to waive.  The intention was a win-win for everyone.  The creator would have protective rights to their work while the end user got flexibility to use the works without the restraints of all or nothing copyrights.

Creative Commons is often referred to the middle ground of copyrights, the “some rights reserved” version.

All Right Reserved   ->   Some Right Reserved   ->  Public Domain

Copyrights                  ->   Creative Commons        ->   Free to use with no restrictions

So how does this work?  Essentially you select the Creative Commons license you want to assign to your creative work to grant copyright permissions to it and associate that license with your work.  For online work you can do it with a bit of coding.  For offline work you can use the old fashion manual way of indicating a copyright on your work.

There are 6 licensing options to pick from.  From least to most restrictive they are:

Attribution: Under this license the creator is allowing others to copy, distribute and transmit the work; to alter/remix/rework it and to use it for commercial purposes as long as attribution is given to the originator.  Read the legalese version of Attribution here.

Attribution – Share Alike: This license is very similar to Attribution with one addition.  The creator is allowing others to copy, distribute and transmit the work; to remix/rework it and to use it for commercial purposes as long as attribution is given to the originator.  AND, if you do alter the original work you can only distribute it under the same or similar license – share-alike.  i.e. no claiming complete copyrights to it.  Read the legalese version of Attribution – Share Alike here.

Attribution – No Derivs: This license allows you to copy, distribute and transmit the work even for commercial purposes as long as attribution is given to the original author/creator, BUT you are not allowed to alter or rework it in any way.  Read the legalese version of Attribution – No Derivs here.

Attribution Non-Commercial:  With this license you are allowed to copy, distribute and transmit the work and can alter/remix/rework it, just not for any commercial purposes as long as attribution is given to the original author/creator.  Read the legalese version of Attribution Non-Commercial here.

Attribution-NonCommercial-ShareAlike:  See the pattern here yet?  This license allows you to copy, distribute and transmit the work and you can alter/remix/rework it, but you must attribute it, no commercial use and if you do alter the original work you can only distribute it under the same or similar license – share-alike.  Read the legalese version of Attribution-NonCommercial-ShareAlike here.

Attribution-NonCommercial-NoDerivs:  Last one, and the most restrictive.  The rights with this license limit you to copying, distributing and transmitting the work.  But no altering it, no commercial use and you must attribute it.   Read the legalese version of Attribution-NonCommercial-NoDerivs here.

Make sense?  The concept is not too difficult on the surface if you understand the basics of copyright and the mission behind Creative Commons makes sense given the “free for all” mentality of the internet.  But critics question how it stands up legally and if Creative Commons just feeds the “if it’s on the internet it’s free for me to take and use as I wish” attitude that is so common.  Does Creative Commons just muddy the copyright waters?

In my view, this begins what could be a very slippery slope.  There are way too many variables that put the police in the position of stopping anyone from photographing and put innocent photographers at risk of false accusations.  How does one tell the aesthetic value of a photograph from any perspective other than that of the photographers?  According to Chief McDonnell, “officers are able to make a judgement about the aesthetic nature of a subject ‘based on their overall training and experience’. “  But the aesthetic value is in the eye of the artist, the photographer.  A building entrance?  A traffic light?  These are common, everyday subject to the majority of people, but someone with a good photographer’s eye can certainly turn them into an aesthetically pleasing photograph with no ill intent.  This ruling has the potential to put enormous amounts of subject off limits as well as leaving very broad interpretation of aesthetic value up to one individual’s interpretation and pre-conceived notions.

I contend that the criminals and terrorists in America are not walking around our streets with the latest DSLR snapping photographs of their next target.  If I had criminal intentions wouldn’t it be much easier and less risky for me to use the details of a Google Map to find my targets?  My point is that I think rules such as this being enforced by the Long Beach police are misguided and presenting a false sense of security.

In the original draft, photographing a farm or other agriculture site without written permission of the farmer or their representative was be a felony.  That puts it up there with rape and murder.  Where those photographs were taken from was also not up for debate in the original version.  That means even if you were standing on a public street when you took your photograph, not on the farmer’s property, you would be committing a felony.  It is widely know that photos taken from public sidewalks, streets, etc. of privately owned buildings and what not are perfectly legal to take.  A federal court even ruled recently that federal buildings and courthouses were not exempt from this rule.

In his scaled back version Norman graciously agreed to make it a misdemeanor rather than a felony and distinguished between photos taken on the farmer’s property and taken from public property or the air.  Those are a good start.  But the real issue is why such a law is even being pursued in the first place.  This is not because paparazzi are stalking the farmer’s daughters.  As the St. Pertersburg Times quoted one advocate for the bill, they

“…fears activists will invade Florida farms and gather footage for public campaigns to replicate a 2008 California constitutional amendment that bans confinement of animals where they can’t stand, sit, lie down, turn around and stretch their limbs…”

Basically, if something inhumane is happening on Florida farms Senator Jim Norman wants to make sure the public doesn’t find out about it and have a chance to change it.  The changes he has made to the bill make it less of a photographer’s rights issue but also brings out the true motives behind the bill.   Now I think the animal rights side takes precedence.

An act relating to farms; prohibiting a person from entering onto a farm or photographing or video recording a farm without the owner’s written consent; providing a definition; providing penalties; providing an effective date.

Sounds rather odd on the surface. Why on earth would this Senator care if people are photographing the cows and citrus groves of Florida?  In fact, if this is a big concern to the people of Florida, I’d say they are already in big trouble.  A Google Image search of Florida citrus groves returns 187,000 images ranging from aerial photographs down to the trees.  Looks like the damage is already done Mr. Norman.  But if you dig a little deeper into the underlying motives of this bill the typical big business influence on politics becomes a little more clear.  It is widely speculated that this bill has nothing to do with taking pretty pictures of red barns in fields of hay or black and white cows chewing grass.  It is more about what is in those barns and how those cows are treated.  And more importantly what “agribusiness” (not Joe Farmer) doesn’t want you to see.  Films like Food, Inc. and groups like PETA have dug up dirty little secrets that large conglomerates of the agriculture business would rather not be known.

So Jim Norman is more likely protecting big business than trying to stamp out the local photography club’s trip to the country.  By prohibiting all photography of all agricultural facilities in the sate of Florida without written consent of the farmer or farmer’s representative (even photography from public property outside of the farm) this law is attempting to stop the photography and video taping of things that large corporations don’t want their consumers to know go on.  If it steps on the first amendment rights of a few photographers along the way, so be it.

In general, when a photographer photographs a subject, he or she owns the copyrights to those photographs.  Then through various degrees of complexity and legalese he or she can license, grant, sell, give away, the right to use those photos for a myriad of purposes while still retaining the copyrights.  Models, celebrities, and sometimes the average Joe/Jane also sign photography release forms stating that the person appearing in the picture has authorized consent to be photographed.  In the case of architectural photography the property owner will sign a release authorizing consent to have their property photographed.  So in the end the person being photographed grants permission to be photographed, the photographer grants someone the right to use those photographs for various purposes and the copyright remains the property of the photographer.

So after the signing of a few legal documents and all the basic agreements shooting can commence.  In the recent case of pop singer Lady GaGa however, she has thrown a wrench into the standard photo release form for professional photographers at her concerts.  The main difference is that GaGa’s release signs over all copyrights to Lady GaGa, taking what has traditionally been owned by the photographer or their employers and giving it to the artist.

There are valid arguments on both sides of this issue, with the definition of validity taking on different meanings depending on which side you take.  The artist and their representatives argue that being the subject of the photo entitles them full ownership.  The photographer community argues that the hard work and creative license on the part of the photographer,a long with the free press the photos generate for the artist, should keep full copyright in the possession of the photographer.

This is a debate that is going to rage on for some time.  It may seem simple that as an art form, the artist owns the rights to the work they create.  But as photography has moved into the digital age and “photographers” are more and more prevalent the gray areas are becoming more hazy.  Lady GaGa was not the first and will not be the last to get involved in this argument.

Note, I kept all photographs of Lady GaGa out of this post, just to be on the safe side.  But you can read more about this story and see the photos to go along with it at Live Music Guide.

It is a debate that is not likely to be answered any time soon, for photographers and the public in general, as we have grown accustomed to terror alerts and “patriot acts.”  So as the debate rages on it makes for some good discussion.  One “rant” that I ran across recently was by photographer William Beem.  William Beem’s take on photographer’s rights is well written and worth a read.