Photo taking and the Law

This is a series of postings I made on Flickr.

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 tape.

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 Photographs

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 on above, 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 there's evidence against, 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 photographic arts.

So, for the Canucks, and anyone else who finds themselves in Canada, assume that you are violating privacy by doing street photography, as Genista explains above. 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
The Sensitive Photographs thread has some more on this. Here are my readings of a recent US 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.

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'';
This is why you hear Congressmen says no one has read the Patriot Act. Reading these changes to the US Code 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
(A) investigate, regulate, or prohibit--
(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;
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.

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

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 such use 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 factors.
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.
- 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