What about the location?
What if you aren’t shooting in your home or studio – but instead in a park? Or a mall? Or someone else’s home?
The key thing to remember is that there is a difference between being able to use an image (for publication, exhibition, sale, etc) – and being able to lawfully take an image in the first place. Generally speaking, and there are plenty of exceptions, photographers can publish any photos they take, provided those photos do not violate the privacy of the subject.
With this in mind, as long as the photographer is not invading someone’s right to privacy, they would most likely be able to use the images taken for more than personal purposes. This includes photos that were taken in places that were off limits – by law or by request from the owner. Ultimately, taking photos and publishing them are two separate issues. However, this does not mean that a photographer will not be potentially criminally or civilly liable for shooting someplace that they shouldn’t be.
As a general rule, if a location is open to the public, such as a mall, park, office building lobby, store, etc, you will not need express permission to enter the premises and shoot – as it is assumed that entry is permissible. However, if you are shooting somewhere and the property owner asks you to leave, you must do so or you could face potential criminal or civil liability for your trespass.
Though you may be asked to leave, it is not appropriate for them to take your film or digital medial. Sometimes security staff at industrial sites or shopping malls may ask you to hand over your film. However, unless a private party has a court order, they do not have a right to your film or digital media. In fact, if they do take your film or digital media directly or indirectly by threatening to use force or call the police – that can constitute a criminal offense such as theft or coercion and they will be the ones liable. Ad even if it doesn’t rise to the level of a criminal offence, it can still constitute a civil wrong leaving them liable as well as they entity they work for. The one exception to this would be police officers directly. They may have the authority to seize your film when making an arrest – but otherwise they too would need a court order.
I would be providing a disservice if I didn’t talk about some of the potential risks with taking photos in places where you don’t belong. If you publish photos that were taken while trespassing, you are providing evidence of your trespass that can be used against you. In fact, there have been some cases where the trespassing judgments imposed have been increased based upon the content of the photos.
There may be other potential liabilities that are not immediately apparent. Abandoned buildings are probably abandoned for a reason. In the very least, they tend to be without electricity (i.e. dark), not well kept (i.e. unsafe conditions), and maybe even explicitly dangerous (i.e. rusty nails, cracking floorboards, gas leaks, etc.). While you may be willing to take the risk of entering such a place to capture the perfect photo – be careful as you may be liable for any injuries or damage caused by anyone you bring with you. I have a client who does a lot of this type of shooting (against the advice of counsel) and one of her biggest concerns was if a model injured themselves while out on one of these expeditions. While a waiver and release of liability may be a useful tool, it may not hold up in all circumstances.
Matthew B. Harrison is an entertainment and media attorney with The Harrison Legal Group. When not lawyering, Matthew enjoys listening to music on vinyl and taking photos on film. Connect with him on his website.