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Guest Blog: Sun at Night, Photographing in Public Spaces

August 4, 2011

Today’s guest blog comes from Sun at Night of Sun from Sun at Night Studios – a really hot topic at the moment for the photographers, and useful to know whether you’re designing greeting cards for mass market commercial use, or selling to micro-stock sites. Thank you, Sun at Night, for your hard work in researching this difficult topic!

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Beginner’s Guide to Photography in Public Spaces

How does a photographer create a photo in public spaces and use it in a commercial project? Believe it or not, this question is asked more times than anyone expects. The answer is simple, legally. To achieve this takes three things: Photography permits, property releases and model releases. To obtain these takes time, preparation and project planning.

Just what are public spaces? These are locations that entail: city streets, neighborhoods, businesses, residences, parks, gardens, county roads, beaches, some parking lots, and historical landmarks. All of these types of public spaces generally require a permit. A permit is often required when any kind of commercial photography is taking place. In some areas of the U.S. (California for example) it is based on commercial intent.

Commercial photography is defined as either photographs or professional photography services for sale or profit aside from filming for motion pictures or television. Many times when applying for permits there will be pre-requisites involved. These pre-requisites are constantly changing, and can range from simple requests for copies of itineraries or it can include proof of insurance for public land liability. Production insurance is more affordable than most people realize and it is always a good form of protection for any type of photography business.

A location permit is only the first step. Additional releases will more than likely be needed. If the public space location includes intellectual property that is copyrighted, trademarked, or privately owned property releases are generally required. Some common examples are statues, skyscrapers, bridges, and city seals or other insignia.

The reason that property releases are needed is fairly straightforward. There may be times when photographers will use property belonging to others. The release is a contract that details the terms of use of the property.

The other type of release is a model release. This is for any person(s) that are in your photo. Crowd photos do not require model releases – the model release is typically for any identifiable person(s).

Other identifying marks that can creep into the public space photo need to be removed, such as: license plates, logos, airplane call letters, boat names, and of course addresses need to be out of the picture. In certain circumstances photographers will use the location permit as the property release, forgoing the need for an extra form. This works well for national parks, county and city parks, gardens, and arboretums where there are no additional objects with intellectual property.

We’ve all heard about the quirky state laws, but needless to say some of these are still enforced while others are not. Some of these quirky laws don’t really pertain to photography, but they do pertain to the location.

For instance, in the state of Virginia any individual is not allowed in a cemetery at dusk. That may put a damper on vampires, ghosts, and other eerie themed photos.

Quirkiness can be found elsewhere that actually does pertain to photography. In the state of Washington, it is reported that it is illegal to photograph ghosts. In Alaska, it is reported to wake a sleeping bear to take a photograph of it is illegal. In the state of Wyoming, it is reported that photography of rabbits can only take place between the months of January to April without an official permit. In the state of Hawaii, it is illegal to annoy any birds in park areas.

These old laws are not only at the state level but at the county and city levels as well. It is best to research what is required. Identify what paperwork is needed, obtain it, and have it handy and ready for proof while on location. Abide by all rules outlined by the permit.

Legal commercial photography is important. Beginners are often tempted to go to any public space and start clicking the shutter. If you have any commercial intent, resist this urge. One photographer found themselves in the middle of a lawsuit between a muralist, a trade association, and one of the biggest distributors of stock photography (Cerventes & Dolores Huerta of United Farm Workers vs. Corbis). The photographer did not obtain property releases for the traditional art, nor the logo that appeared in the photograph. Just remember that being commercial equals legal photography.

Project Planning Do’s

  • Plan for at least a 1-month lead-time minimum.
  • Gather site location requirements
  • Scout suitable locations
  • Identify applicable city, county, or state photography permits that are needed.
  • Research state and local laws that prohibit photography.
  • Know your budget. Expect fees.
  • Think safety first – always make sure the site is not hazardous.
  • Documentary photography is not always considered editorial; some governing entities treat it as commercial

Assumptions

  • Do not assume that public space includes interiors, museums, galleries, airports, railroads, bus stations, carnivals, events (example: Burning Man), state and county fairs.
  • Do not assume that all locations accept flash photography.
  • Do not assume that photography is allowed at playgrounds (currently this being talked about in Ireland), cemeteries, schools and transportation areas.
  • Do not assume that just because editorial photography is allowed that commercial has the same rules. Many locations have exceptions for editorial photography but prohibit commercial photography.
  • Do not assume that aerial photography (including kites) doesn’t need a permit.
  • Do not assume that police understand photography rights or laws. Be prepared to answer any questions.
  • The photographer can assume to expect the unexpected.

Starting Out Resources

ASMP (American Society of Media Photographers)

Property Release

Model Release

Minor or Under Age Model Release

Easy Release Smart Phone Application

National Park Service

Photography Permits

California Film Commission

California Photography Permits

Modeling Wiki

More links to permits

Shutterstock’s Prohibited Stock Photography List

Muralists Legal Rights

 

24 Comments leave one →
  1. August 4, 2011 7:04 am

    This is top stuff 🙂 waking a bear made me chuckle don’t think the law will have to come down on you for that one 😛 I think the bear will take care of that ha, the other was the cemetary wow, lots of laws, we can sit in ours any time of the night, the ghost one made me chuckle, I know that train tracks are now a big nono in the UK due to photographers being mad as hell laying on their tracks. Museams were out here but now they are open and you are allowed but some might not some might (this was due to the terrorism scares) but now a bit more relaxed, same with butterfly parks some will allow some will not, always ask before I go saves being grabbed and asked not to take photographs, the rabbit one is dead weird as well, bit like shooting laws that one, perhaps an official got confused between shooting and shooting, a wealth of information in the article and makes you stop to think. Only once were we asked nicely not to take a photograph, which was cool it was a mining museam.

    Niecely done and a huge thanks for your work.
    Hugs
    moonie

  2. August 4, 2011 7:09 am

    On another note regarding the National Trust Building list, now this one is very strange as on another site I am actually in their list of people who take their monuments and buildings and they encourage you to do it, and lits that it is a National Trust Building, where it is etc etc, so that one threw me a bit, might research that as it’s confusing, unless that is the reason we have to include the building name, place and put it is a National Trust Building.

  3. August 4, 2011 8:48 am

    Well done and very informative, Thank you also for the links.
    Janet Lee

  4. August 4, 2011 11:07 am

    wow… I better stick with painting!

  5. Donna permalink
    August 4, 2011 1:23 pm

    OK I thought I had a headache before – does this mean I have to remove several images of people’s pets, images of animals at the local aquarium, and the eagles/owls in rehab that I used as subjects for some of my cards until I get signed permission or rejections from the owners? Oh my goodness. I really feel stupid – not for anything, but wow – are they going to toss me in jail for the few cents a month I might actually make on my cards?

    Where do I start to “legalize” my images if so?

    • August 4, 2011 1:51 pm

      I ‘m no expert, but I would say, if you’re photographing almost anything or anyone for commercial purposes (such as, you intend to resell as greeting cards or license), then you should get permission. For example, the eagles and owls you mention…do you have permission from the rehab clinic to take photos of the animals in their facility and use them for greeting cards? Did you ask permission from the local aquarium (some attractions may have restrictions)?

      Corrie

      • August 4, 2011 2:36 pm

        Donna – I have a property release for the Wildlife Rehab Facility I photographed at for years. They will sign one for you no problem if you let them know they can use your photos to help them advertise and raise funds for the animals 🙂 Just create one and date it from the first photo shoot you went on and explain to them that you are now selling some of these images and need their permission.
        Good luck!

    • SunAtNight permalink
      August 4, 2011 2:49 pm

      First off, the only jail time is for a felony which the train tracks are, due to it being in the realm of Department of Transportation. The rest of the typical non-conformances is usually copyright law infringements which is civilian lawsuits in the U.S.

      As to the owls/eagles I’m assuming that you had to consent from the rehab facility to take the shot. I’m also assuming that the birds were later released into the wild. It’s a gray area but should be OK since the rehab birds are not the property of the rehab facility.

      The aquarium is also a gray area. You will have to check with them yourself. Typically aquariums are like museums. These are considered private property – especially when you go inside.

      All the retroactive fixes are gray area; If you can obtain permission from the property owner(s) and get a signed release form, definitely do so. The decision whether or not remove you photos from websites and greeting cards is a choice you have to make.

      For future photo sessions where there is commercial intent or the possibility of commercial use the easiest way to protect yourself from any legal action is a smart phone application that has digital release forms. You can complete the form quickly on the phone and the person giving consent can digitally sign using a finger tip. See link above under resources.

      For those without a fancy smart phone: start with paper based property & model releases, forms are the way to go. There is a link to forms you can download and use in the article resources.

  6. August 4, 2011 2:38 pm

    Thank you Sun At Night for all your work to put together such an informative and useful article!
    Doreen
    http://www.facebook.com/SalonOfArt
    http://www.twitter.com/SalonOfArt

  7. Gail Pepin permalink
    August 4, 2011 2:54 pm

    Interesting article! I knew it was complicated pertaining to photos and legalities. I have used public domain images from the U. S. Government for some of my eagle pictures, etc. I wonder how some of the other artists handle their “people” shots that look private and personal?
    Gail

  8. Donna permalink
    August 4, 2011 2:59 pm

    to answer some of the questions… I honestly didn’t know any of this and feeling really at a loss as to where to begin to rectify this… the aquarium – lots of folks there that photo the animals – I’ll see about contacting them for consent. Same with the eagles in particular – they are non-releasable educational ambassadors under the care of a rehab facility – they will never be released back to the wild. The birds were on display at a public educational event introducing people to the plights of wild raptors. The owls were also part of the same educational event although they are captive birds used for falconry – so I guess that would be fixed by contacting the owners of the organizations.

    I don’t have a smart phone so I’m guessing I should draw up something and have paper copies available at all times?

    And thank you too for all the information – I guess I’m up to my eyeballs now to get this all fixed.

  9. August 4, 2011 3:16 pm

    Thank you so much for this information. I asked this question awhile back in the forums and this article made it so much easier to understand the information. After reading this it got me to thinking about using photos I’ve taken at the zoo. I just learned some zoos (such as the Indianapolis Zoo) prohibit using photos taken there for commercial use. I just sent an inquiry to the zoo I go to and am anxiously waiting to hear if I am in the clear…

  10. Donna permalink
    August 4, 2011 3:22 pm

    Here’s another question – the property form has a space for a notary public to sign off on such forms. What happens if the bird rehab has now moved out of state? Do I mail a copy of the form to them and have it sealed with a notary public later? Would these forms need to be dealt with prior to future visits to say the aquarium, museum, zoo, whatever IF permission is granted?

  11. August 4, 2011 4:36 pm

    What is it with some places that they need to make picky laws to make things so complicated? I get the need for recognizable people and artwork permissions. I get the need if you are setting up for a major shoot. Maybe this is just one of those proofs that our laws are way behind our technology. You need pro equipment perhaps, to be a pro photographer and a big shoot might need that. But you can get decent shots without it that are quality enough to sell or modify for artwork just on the spur of the moment. It looks like these laws were made when you needed a three camera tripod things that let out a puff of smoke and made people in the picture come out looking grim and ghoulish. Now those would sure cause a traffic jam.

    I do have some shots in my portfolio of the zoo and murals, but those aren’t for sale on anything. They are just ‘I can take nice shots’ and ‘isn’t this a neat place to visit’ examples. I wonder if I should take those out.

    I’ll admit I’m not a pro photographer, most of my stuff is combined with other media.

    Can’t photograph ghosts? I must look that up. I’d love to know the story behind it. I can guess the one about not waking bears!

  12. Donna permalink
    August 4, 2011 4:49 pm

    I’m no pro photographer either and many of my images do for the most part get manipulated – even my eagle – there is no handler seen – he could be wild or he could be in rehab – there’s no mark seen to make him any different than any other Golden Eagle except my saying he is so in so in the care of so in so rehab place – I am proud to make his name and his organization known because his story is a wonderful one of cruelty and the kind hands that made him realize not all humans are monsters.

    Another question – yup, I’m sorry – I’m loaded with them – with all the paperwork just to take these pictures, any advice on how best to store it should anyone say anything? If I get permission say from the aquarium for use of previously taken images, do I need to get them to sign off on a new form for every visit I make there? I tend to go at least once a year and sometimes more.

    • August 4, 2011 5:03 pm

      Donna, I wrote to the zoo I go to and they were quick to respond. For the Woodland Park Zoo they say as long as you have the rights to the photograph you can use it for commercial use as long as there are no identifying marks and claims to be endorsed by the zoo. Send an email to your local zoo, hopefully they will be as compliant.

      • Donna permalink
        August 4, 2011 5:14 pm

        thanks, Tracie. I do hope the aquarium (my main concern) will comply. Their website has a section on copyright but only states from my first read through that their images and printed materials cannot be used. There is no obvious mention of images taken by others and I will read through it again to be certain.

        I did email them, the bird rehab at their new location and the falconry demonstration host to see about obtaining the proper permissions. I’ll get in touch with my friend whom I’ve used images of her dogs and cats and her sister’s dogs too and I know that won’t be a problem there.

      • Donna permalink
        August 7, 2011 5:41 pm

        well, I got approvals via email from the bird rehab and falconry person but the aquarium has yet to reply. Maybe I’ll have to just go visit and talk to someone in person. Perhaps I can make an exchange with them – give them some of my cards for their souvenir shop in exchange for usage rights.

  13. August 5, 2011 12:23 pm

    This is all very interesting. Very timely as well. I have a friend that just got back from England and wanted me to make a card from her Big Ben shot. I told her I needed to read this post first! I will decline as I don’t have the time to check out England’s photography guidelines! I don’t want to be Locked up abroad either! Sorry , Bad joke.
    http://www.greetingcarduniverse.com/dragonfiregraphics

  14. August 5, 2011 10:08 pm

    Thanks for this. I’ve been looking for a concise, ready source of links to get to the paperwork I need for releases, as I’ve some I need to mail to publishes for their patterns. Do you know how one handles photographs of a commercial pattern that I stitched as a gift for a family member?

    Must I consult with the publisher and obtain the release? Or am I okay using it because it’s MY creation from their pattern?

    • SunAtNight permalink
      August 7, 2011 5:23 pm

      You’ll have to define “publishers of patterns”. Is this fabric patterns? or clothing apparel patterns?

      Clothing apparel patterns have no copyrights. Yes, I know they put the little “c in a circle” at the bottom of the tissue patterns, but in reality they are unable to file for copyright due to the fact that it is a world wide standardized product. The designs have been around for hundreds of years.

      I’m pretty sure that purses and totes are the same.

      • Donna permalink
        August 7, 2011 5:28 pm

        She’s referring to the printed/stamped embroidery patterns that you would buy at the craft stores – they have pre-printed fabrics or a layout of the pattern for you to create in cross stitch.

        I’ve done a few of these myself as well as latch hook or even from years ago the color-by-number paintings.

    • SunAtNight permalink
      August 9, 2011 9:09 pm

      Embroidery (or any other thread art) patterns are protected under copyright. You’ll have to obtain permission from the either the publisher, distributor or the designer to use it in a commercial photo. Sometimes the publishers license the design from the designer. This goes for digital designs as well as paper transfers.

  15. August 6, 2011 4:59 pm

    What a wonderful article and information! Very much appreciated 🙂 I am learning so much from the blogs and articles.

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