Photographers rights — street photography isn’t a crime

Is street photography legal?

Today, most people walk around with a camera of some sort in their possession. Point-and-shoots, DSLRs and blogging cams, not to mention cellphones which have become ubiquitous. Yet it seems that in many public locations, security officials are paranoid about letting people actually use those cameras. Our guardians of public safety often have the idea that shooting pictures in public places might be a precursor to some sort of terrorism. It’s an understandable concern, but misguided. Legally, it’s okay to take photos in a public place as long as you’re not physically interfering with an accident, traffic or police operations or trespassing.

There is no right to privacy in public

The guidelines of shooting street photography does not limit a photographer from taking photographs, as long as they’re not offensive or causing disruption. Technically, when people are out and about in public places they have no inherent right to privacy, therefore, photographers aren’t required to ask permission from every person they capture in a photo. As a general rule, if a photographer is shooting from a public space, such as a street or a park, he or she will usually have the right to do so without the consent of the subjects. Generally speaking, if you can see it from a public space, you can take a picture of it.

Privacy is defined as “the state or condition of being free from being observed or disturbed by other people.” Obviously, it would be objectively unreasonable to expect privacy on a city street or on a crowded subway. So, when someone claims that anyone may take photographs of whatever they want when they are in a public place, another way of saying that the privacy right of a person doesn’t apply unless that person has a reasonable expectation of privacy. Put more directly, you have given up any expectation that you cannot be “observed or disturbed by other people” by virtue of entering a public space or being in a position where you can be seen by others in a public space. And that is why when in a public space, a street photographer can take a picture of anything he or she can see from that vantage point, even including subjects on private property, so long as they are within public view. For example, a photographer would be free to photograph a couple sitting on a restaurant patio, or even inside the restaurant through a window, so long as the photographer is on public property.

On the other hand, it is illegal to take photos of people where they have a reasonable expectation of privacy. If you are in a public bathroom stall with the door closed, there is a clear expectation of privacy, such that nobody can shove a camera over the stall and take a photo of you. However, if you are in a private hotel with a giant window, and the photographer can view you from the street, even if a telephoto lens was necessary, then there is no expectation of privacy. While reasonable minds might differ about whether the act crosses an ethical line, it isn’t illegal.

Copyright & the law

Until 2012, the Canadian Copyright Act discriminated against freelance photographers because it did not automatically recognize their ownership over the work they created in the course of their employment. The Canadian Copyright Act was amended on November 7, 2012. In Canada, copyrights are protected by the Copyright Act, c. C-42. Since November 7, 2012, the Canadian Act finally grants ownership of the copyright to professional freelance photographers for work created in the course of their employment. Canadian photographers are now, by default, the first owners of the copyright of the images they produce, as are illustrators, musicians, painters, and writers with their respective work. This applies to both photographs commissioned and paid by a client, and to photographs taken for non-commercial purposes. Therefore, photographers no longer have to sign an agreement with their client stating that they are the first owner of the copyright; the Act now guarantees ownership by default. For more information about Canadian photographers copyright click here

Canadian Photographer’s Rights (a summary) — These guidelines are secondary to common sense, manners and respect.

• You can make a photograph of anything and anyone on any public property, i.e, streets, sidewalks, town squares, parks, government buildings open to the public, and public places are all okay. Except where a specific law prohibits it, generally a posted sign will advise. However, a lack of signage does not ensure permission to photograph.
• You can shoot on private property if its open to the public, but you are obligated to stop if the owner or owners representative requests it. This may include malls, retail stores, restaurants, offices and/or office lobbies.
• You can take photos at public festivals and public events whether they are on public or private property, paid admittance or not. The event organizer or their representative (security) have the legal authority to ask you to stop taking photos. If you refuse then you may be evicted from the site. any lack of “photography not permitted” signage does not validate your photography.
• Private property owners can prevent photography ON their property, but not photography OF their property from a public location.
• Anyone can be photographed WITHOUT CONSENT when they are in a public place, unless there is a reasonable expectation of privacy, ie, private homes, restrooms, dressing rooms, medical facilities etc.
• Despite common misconceptions, the following subjects in a PUBLIC PLACE are always permissible: Accidents, fire scenes, criminal activities, children, celebrities, law enforcement officers, bridges, infrastructure, transportation facilities, residential, commercial and industrial buildings. However, use common sense and don’t interfere or cause reduce delays of any incident.
• “For security purposes” is rarely an acceptable reason for restricting photography. Photography from a public place cannot infringe on trade secrets, nor is it a terrorist activity.
• Private parties (Security personal) cannot detain you against your will unless a serious crime was committed in their presence. The detainers could face serious legal charges if they do detain you against your will.
• IT IS A CRIME for someone to threaten injury, detention, confiscation, or arrest because you are taking photographs legally.
• YOU ARE NOT OBLIGATED to provide your identity or reason for photographing unless questioned by a law enforcement officer. Most local bylaws/laws require you to cooperate with the police. Just use common sense, respect and stay calm when questioned.
• SECURITY PERSONAL have no legal right to confiscate your equipment without a court order. Even police officers must obtain a warrant and court order before doing so. NO ONE can force you to delete photos you have made legally.

Please note that these are general guidelines regarding your Canadian rights as a photographer and should not be interpreted as legal advice. If your unclear about your rights and need legal help please contact a lawyer.

One final note: If you are confronted, threatened with detention or the confiscation of equipment by security personal, ask the following questions:

Editors note: some content based upon rights assembled by Bill Kellett

• What is your name/badge number?
• Who is your employer and what is the company name?
• May I leave and if not what is the legal basis of my detention?
• If equipment is being demanded , what is the legal basis for the confiscation and can you see their warrant or court order?

JUST REMEMBER PHOTOGRAPHY IS NOT A CRIME — ENJOY, STAY SAFE AND HAVE FUN