The legality of taking photos and videos depends on the context. Whether a photograph or video was legally taken depends on the location where it was taken, and the photographer's status with regard to being on that property.
Broadly speaking, the public has the right to take photos and videos in public spaces, for example in public parks or city streets. The analysis becomes more complicated in privately owned spaces.
For example, the public also has an implied right to be on the public portions of private property, such as in a restaurant or a stadium. However, that implied right does not extend to private areas of public accommodations, such as offices or the hallways of condominium buildings. Moreover, the owner of a restaurant or stadium can certainly prevent a photographer from snapping photos. Indeed, you will often see a "No photos or videos!" sign at many concert venues. Because this space is privately owned, the owners are permitted to impose that restriction.
When are you permitted to take photographs or videos in private spaces?
Public Access Versus Trespassing
If you are trespassing, you likely do not have the right to take photos and videos. Sometimes, it may seem that the public has been given access to private property, especially when public use of the property is traditional. Examples of this are wilderness areas, hiking trails, swimming areas, or access areas to a beach.
If you make a mistake, you still may be in trouble, regardless of your belief that your access complied with the law. Do not depend on the lack of signs. In most places, people are not required to post their land with "no trespassing" signs.
If you are considering taking photos or videos of private space, you should remember:
- Extending a camera over a fence may be a trespass.
- Flying over a property for the purpose of taking photos may be a trespass.
- "No Trespassing" signs are not required in order to establish a space as private.
- If you have permission (sometimes called a "license") to be in a particular location or take photos there, do not abuse the permission.
Courts will often find some exceptions to the general prohibition on taking photos and videos in an area where someone is trespassing, for example if the person:
- was taking photographs to document a disaster (that is, a newsworthy purpose)
- was taking photographs to document a crime, or
- had permission to be on the property for other purposes.
The factors above are important to consider, but the answer to the question of whether or not you were trespassing when you took photos and videos is basically fact driven. That means that all the facts relative to your legal status on the property may be considered if the property owner files a complaint against you. The key is to use your common sense and err on the side of not trespassing or angering the property owner.
Landowners Can Sue Based On Theory of "Nuisance"
A legal doctrine known as "nuisance" is another potential block against your ability to take photos and videos. In terms of photography and video, a nuisance is some activity that interferes with a property owner's reasonable use of his or her own property.
It is difficult for a property owner to prevail in a nuisance action against a photographer or videographer, because it is difficult to meet the legal burden needed to prove a claim. The annoyance to the property owner needs to be very real, and not just the result of the property owner's hypersensitivity or subjectivity. However, if you regularly enter your neighbors' yard and take photos of their house or interrupt their parties, this could expose you to a nuisance claim.
How a Lawyer Can Help
If you are unsure of whether you can take photos or videos in a particular place, it might be helpful to speak with a lawyer. If the photographs and videotapes are taken on private property, there are several areas of law that could lead to liability for the photographer, such as invasion of privacy, nuisance, and physical harm or harm to the reputation of the property owner. Remember, the legal inquiry is fact driven, and a lawyer should know which facts are helpful to you and which are harmful, and be able to advise you about what to do.
Questions for Your Attorney
- Does the public have access to this particular piece of property?
- How can I be sure that I am on private property with permission?
- What is the scope of my permission?
- How can I decide whether taking the photographs or videotape will fall under an exception for reporting of disaster or crime?