Photo taking and the Law
This is a series of postings I made on
I believe the Supreme
Court's ruling in Crawford v. Washington was that
recordings, such as written letters, tapes, and photographs, may not
stand on their own as evidence. This is based on the Sixth Amendment
which states the accused has the right "to be confronted with all
witnesses". Insofar as the photographer is the actual witness a
photograph is admissable only if the photographer is willing to take
the stand or is subpoenaed. In the case that was heard I believe the
particular argument was that the defense can't cross-examine an audio
The Crawford v. Washington opinion
is an interesting read in and of itself, particularly the discussion of
Sir Walter Raleigh's conviction based in part on the reading of a
letter written by a witness who did not appear before that court. This
quote is also interesting, coming from the conservative Judge Scalia
"The Framers, however, would not have been content to indulge... They
knew that judges, like other government officers, could not always be
trusted to safeguard the rights of the people". - Sensitive
Here is the Supreme Court of Canada's decision in Aubry v.
Edition Vice-Versa inc. to which brevity
refers. There was no question but that the photographer infringed
on Ms. Aubry's privacy. As Barrybar touched
the fine lines the photographer walked were 1) whether or not
publication caused damage, and 2) whether or not publication served the
public interest. Uidzero's argument conflicts with the court's final
basis which was the fact that the artistic expression rendered the
subject identifiable is what made the photographer liable a
priori. That is, the court felt the photographer should have known he
was assuming responsibility before ever taking the picture because
theory and a reasonable knowledge of social context alone should have
led him to the conclusion that the photograph violated privacy and
publication lacked adequate
public value. That seems like a shaky argument. The majority opinion
relies heavily on context (i.e., would the decision have been different
If the claimed damages had been less? If the public value had been
greater? To take it a step further, if the subject wasn't a female
minor?). Tough decisions make bad precedent.
However, stripped of context, one would have to read the court's
decision to mean that a hyperrealist painter with a photographic memory
would in fact be liable (not guilty, but liable) if he did in fact
paint the image of the face of a passer-by. This would come back to the
privacy argument: yes, such a painter would be violating the subject's
privacy. Why do we find the hypothetical painter test rediculuous
compared to the hypothetical photographer test? Because we know, and
anyone, ever, having been such a good painter as to be able to render
someone identifiable without a photograph or the subject's cooperation
(i.e, sitting for a portrait). The reason Uidzero's painter evokes our
sense of rediculuousness has nothing to do with whether or not privacy
is violated, but only to do with our knowledge of the painting and
So, for the Canucks, and anyone else who finds themselves in Canada,
assume that you are violating privacy by doing street photography, as Genista
If you proceed without securing permission, you are on your own to
evaluate the court's two contextual questions: 1) whether or not damage
will be caused by publication, and 2) whether or not publication
adequately serves the public interest to offset any damages.
I'm very interested in this as I plan to be doing some street
photography later this month in the French Quarter. - Sensitive
Photographs thread has some more on this. Here are my readings of a
Supreme Court ruling and a Canadian
Supreme Court ruling.
They include links to the actual court opinions. Does anyone have other
references? US Code, etc? Here's the US Government Printing Office's
site, GPO Access.
One thing on the site that really ought to be on the front page is is
the Constitution. You can browse down to the First Amendment. The First Amendment page includes
very intense discussion including citations to relevant court opinions.
The Photographer's Right
is an excellent field guide, but nothing replaces the confidence of
having first-hand knowledge of legislative, executive, and judicial
law. With the hope that we can develop that first-hand knowledge
through conversations on Flickr, here's a quick overview of US
legislative, executive, and judicial law.
The Congress passes Public and Private Laws.
Many of these are
Good-job-to-Benny-for-twenty-five-years-of-public-service laws, but the
serious ones, the ones that get reported in the news, like the Patriot Act (Public Law 107-056), are changes to
the US Code. These laws are literally telling the
Government Printing Office which words and what punctuation to add and
delete from the US Code. The first part of the Patriot Act is fluff, but scroll down to Section
106 and you'll see what I mean.
SEC. 106. PRESIDENTIAL AUTHORITY.
This is why you hear Congressmen says no one has read the Patriot Act.
Reading these changes to the US
doesn't make any sense unless you've got the current code open next to
the Act and you are prepared to go through it with a pen and make the
changes. That's what the Government Printing Office does. Notice the
snippet above is amending 50USC1702. Here's the bit of Section 1702 of Title
50 of the US Code to be amended by the above snippet of the Patriot Act
Section 203 of the International Emergency Powers Act (50 U.S.C.
1702) is amended--
(1) in subsection (a)(1)--
(A) at the end of subparagraph (A) (flush to that subparagraph), by
striking ``; and'' and inserting a comma and the following: ``by any
person, or with respect to any property, subject to the
jurisdiction of the United States;'';
(B) in subparagraph (B)--
(i) by inserting ``, block during the pendency of an investigation''
after ``investigate''; and
(ii) by striking ``interest;'' and inserting ``interest by any person,
or with respect to any property, subject to the jurisdiction of the
United States; and'';
(A) investigate, regulate, or prohibit--
Notice the changes haven't been made yet. it's only every six years
that the GPO has to provide a certified up-to-date copy of the US
Code to Congress. We're currently one the 2000 edition. Everything
should be in by January 2006.
(i) any transactions in foreign exchange,
(ii) transfers of credit or payments between, by, through, or to any
banking institution, to the extent that such transfers or payments
involve any interest of any foreign country or a national thereof,
(iii) the importing or exporting of currency or securities;
(B) investigate, regulate, direct and compel, nullify, void,
prevent or prohibit, any acquisition, holding, withholding, use,
transfer, withdrawal, transportation, importation or exportation of, or
dealing in, or exercising any right, power, or privilege with respect
to, or transactions involving, any property in which any foreign
country or a national thereof has any interest;
As the Congress issues laws, and some of those laws change the US
Code, the President issues Executive Orders and some of those
orders change the Code of Federal Regulations (CFR). A well-known
example is President Clinton's ban on smoking in federal buildings, Executive Order 13058. Browsing the CFR
can be tricky. If you don't have an exact citation to search for, then
you need to know the year and title to browse.
For example, the smoking ban was issued in 1997 and affects Title 3.
Since it was issued in 1997 it is in the 1 Jan, 1998 update. If you
only know the subject matter, you're usually better off Googling until
you find some random webpage that states the CFR
citation or the Executive Order citation. Organizations with a vested
interest in the subject at hand often post not only the citation, but
the entire text. IF they do, I recommend you still get the copy from
GPO Access, because who knows where somebody made a critical typo.
The US Supreme
Court issues opinions which can trump the US
Code and the CFR. They haven't finished putting the 2004
opinions up yet, but here are the 2003 Term Opinions. They can also change their rules,
which effect how lawyers and judges behave, and what constitutes
evidence. When reporters say a case was overturned on a technicality,
they are often referring to rules violations.
The states and most post-American-Revolution democracies follow a
similar pattern. Would representatives of the 50 states and the
internationalists among us please provide links to your legal sites and
any other cases you've heard about in the news so we can find out what
law actually applies to us? - Photo taking
and the Law...
[A]dmittedly I'm American
so that's what I know best. I believe Her Majesty's Stationery Office
is where you want to start. From my discussions with Britons, European
legal systems are very involved compared to the US, which hasn't been
around as long, so things usually boil down to, what's the phrase?
Principle and precedent? - Photo taking
and the Law...
This was originally posted in the "Photo taking and the
Law..." thread, but it seems more appropriate as a new topic.
Here's a different issue: the "Fair Use" section of the Copyright Act from
Chapter 1, Title 17 of the US Code.
Sec. 107. Limitations on exclusive rights: Fair use
This bit of language is at the center of most copyright challenges in
the US. For further reading, here's the Stanford Copyright
& Fair Use site.
Notwithstanding the provisions of sections 106 and 106A,
the fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining whether
the use made of a work in any particular case is a fair use the factors
to be considered shall include--
(1) the purpose and character of the use, including whether
is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
- Fair Use
Regarding Flickr's culpability when users use the system to
violate copyright, the Supreme Court recently heard arguments in the
MGM v Grokster appeal of the Ninth Circuit Court of Appeals opinion. Basically,
the Ninth Circuit held that the differences between Napster and
Grokster are that Napster maintained
an index of available files on it's central server and Napster had the
ability to control user access. Grokster distributes it's software and
users operate in a completely decentralized way.
Here's an IT Conversation on the Ninth Circuit opinion. If
you listen to this, you'll be interested in the Aimster decision and the Betamax
case. The Electronic
Frontier Foundation is a great resource for this sort of thing.
Here are the written briefs presented to the Supreme Court for the
Grokster case (scroll down to 29 March). - The
Pope and Copyright