Photography Law

[tegan]

I am still seeing a lot of pure drivel related to photography law on the net so it is good to occasionally remind photo enthusiasts.

1. Photography is among basic rights and freedoms. You can take photos almost anywhere with the exception of courts, washrooms, change rooms and top secret military installations etc. You can take photos of almost anything.

2. Taking photos on private property is NOT illegal.

3. You can take photos of any building whether it is "copyrighted" or not.

4. You can take photos of dams, trains, and any other sort of infrastructure,
despite any security concerns.

5. You can take photos of anyone in a public place including the police whether they like it or not, as long as you are not violating other laws..such as harassment, restricting their activities, loitering etc.

6. Without violating copyright, you can take a photo of any sculpture or work of art that is permanently stationed in a public place.

7. You cannot violate Trademark Law by having a trademark in your photo.

8. Any "restrictions" on photography in museums or malls etc. are simply
rules made up by the property owner. They are NOT laws.

9. You cannot be arrested for taking pictures of anything except top secret
installations or documents, etc.

10. You cannot be forced to erase a photo or hand over equipment to any security guards and NOT even to the police without a warrant.

11. In law, a "public place" may be private property so where you took a
photo from, is irrelevant. It is still NOT illegal.

By all means respect police but ask polite but relevant questions such as: "May I see your warrant please?" "What legal reason am I being detained for?"

Tegan

[Marko]

Thanks again for sharing your knowledge on the topic tegan!

So question - Any body can take a camera into a private concert hall and start photographing any performer?

If I was the owner of that hall? Do I not have the right to say no photos?

Just curious?

Thx
'Marko

[tegan]

Thanks again for sharing your knowledge on the topic tegan!

So question - Any body can take a camera into a private concert hall and start photographing any performer?

If I was the owner of that hall? Do I not have the right to say no photos?

Just curious?

Thx
'Marko

Yes, anyone can take a camera into a private concert hall and start photographing any performer. The owner has the right to say no photos but the only way he can enforce that right is to tell the person to leave. If the person does not leave, he is trespassing, which is a different law.

Nevertheless any photos taken are the property of the photographer since taking photos was NOT illegal.

Although I have heard performers say that their performance is copyrighted, the law says that copyright only applies to something "in a substantial form" which certainly does NOT apply to any live performance.

Tegan


Yes, anyone can take a camera into a private concert hall and start photographing any performer. The owner has the right to say no photos but the only way he can enforce that right is to tell the person to leave. If the person does not leave, he is trespassing, which is a different law.

ahh now we are getting into the nitty gritty - let's bust open a couple of beers. :) How is it trespassing if the person paid for their ticket? Surely trespassing and taking a photograph are 2 completely different beasts..

[Marko]

woops - sorry about that tegan - I edited your post instead of replying.
My mistake.

[tegan]

Yes, anyone can take a camera into a private concert hall and start photographing any performer. The owner has the right to say no photos but the only way he can enforce that right is to tell the person to leave. If the person does not leave, he is trespassing, which is a different law.

Nevertheless any photos taken are the property of the photographer since taking photos was NOT illegal.

Although I have heard performers say that their performance is copyrighted, the law says that copyright only applies to something "in a substantial form" which certainly does NOT apply to any live performance.

Tegan



ahh now we are getting into the nitty gritty - let's bust open a couple of beers. :) How is it trespassing if the person paid for their ticket? Surely trespassing and taking a photograph are 2 completely different beasts..

The Trespass Act allows the owner of property to ask anyone on that property to leave, and if you don't leave, you are trespassing. No reason is necessary. I will have to check as to how the paid ticket does or does not affect the issue. The paid ticket could constitute a "contract" that allows you to be present at the performance which would remain in force, unless they gave you your money back.

Yes, trespassing and taking a photo are 2 different beasts. Using the trespass act is simply a round about way of trying to prevent picture taking.
However, I doubt that in reality there are many cases of a charge of trespassing actually being laid and reaching the court stage over taking pictures by an average photographer in a concert. It costs the system money to go through the process of prosecuting this charge and in the grand scheme of things it is much less important than other charges that are backed up in the court system.

Tegan

[Marko]

So I'm really interested in this point tegan and likely some people will read this and may act upon this advice...so here continues my thinking on this matter and I'd love it if you could opine on this.

Lets's say- on the back of the ticket it clearly says no photos cameras reproduction yada yada...

a person buys the ticket and the contract on the back of it..

so for me the crux of this issue is, IS IT ILLEGAL TO BREAK A CONTRACT that you have entered into voluntarily? AND SURELY THE ANSWER IS YES.

What i think you are suggesting is that people need to be aware that nobody can seize their equipment without a warrant EVEN if they have done the illegal activity of breaking a contract.

But at the end of the day I do believe you would lose this particular portion of the argument . If I own a hall and sell tickets and say that you can't photograph/reproduce on the ticket...and you still do... - then this is illegal by virtue of breaking the contract. It may not be enforcible, but it's illegal IMO. I don't think trespassing has anything to do with this. How can i be tresspassing if i paid for the space? Surely I am violating something but in no way am i trespassing.

[AcadieLibre]

First you have a Constitutional right to take photographs.

2 (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Canadian Constitution (http://laws.justice.gc.ca/en/const/annex_e.html#I) (I Have a Copy that hangs over my desk, for Canadians if you get a hold of your MP you can get a copy for free)


Now there are tons of nuisances to the law and many varied interpretations. Like I was taught, until a Court rules on a law it is not a law but the interpretation of the law and is subject to change overtime, with legislation and changes in the Judiciary and Societal acceptances in changes of attitudes ect. I agree I have certain rights but those are a lot of blanket statements and nothing, I mean nothing is that black and white when it comes to Law. Just think such blanket statements are wrong, these are what you believe or have read and been lead to believe are your rights. Marko has a very valid point. At best they are loose guidelines and everyone needs to take that into account. It is by no means a Legal opinion but a persons. The Only Right you have is in the Constitution and that is also open to Court interpretation.

It is why when our rights are trying to be taken away or limited we need to speak out, as citizens and as photographers. Why Every VOTE counts. Rights always need to be defended and never taken for granted.

[tegan]

So I'm really interested in this point tegan and likely some people will read this and may act upon this advice...so here continues my thinking on this matter and I'd love it if you could opine on this.

Lets's say- on the back of the ticket it clearly says no photos cameras reproduction yada yada...

a person buys the ticket and the contract on the back of it..

so for me the crux of this issue is, IS IT ILLEGAL TO BREAK A CONTRACT that you have entered into voluntarily? AND SURELY THE ANSWER IS YES.

What i think you are suggesting is that people need to be aware that nobody can seize their equipment without a warrant EVEN if they have done the illegal activity of breaking a contract.

But at the end of the day I do believe you would lose this particular portion of the argument . If I own a hall and sell tickets and say that you can't photograph/reproduce on the ticket...and you still do... - then this is illegal by virtue of breaking the contract. It may not be enforcible, but it's illegal IMO. I don't think trespassing has anything to do with this. How can i be tresspassing if i paid for the space? Surely I am violating something but in no way am i trespassing.

Legal definition of Trespassing in Canada: Trespassing is an act whereby one person is present on the property of another and there is reason to infer that such a person is not welcome on the property. T

In the U.S. and Canada, a missive on a ticket saying you can't take photos is not a contract. Not generally known but in Canada I am told that in order for contracts to be binding, legal, and enforcable, they generally have to be signed, and use the appropriate legal wording. The exception is some verbal promises, but they are hard to prove.

Basic to any contract law is that you cannot break a contract that you did not agree to, and in Canada implied contracts such as by taking some action, you are entering into a contract etc... are not binding.

To further complicate things, contract law is civil not criminal, so a law suit is the only recourse for the concert hall owner and that would take several years and would not be financially worthwhile to the owner.

Tegan

[Marko]

Thanks for that tegan.


Now there are tons of nuisances to the law and many varied interpretations. Like I was taught, until a Court rules on a law it is not a law but the interpretation of the law and is subject to change overtime, with legislation and changes in the Judiciary and Societal acceptances in changes of attitudes ect. I agree I have certain rights but those are a lot of blanket statements and nothing, I mean nothing is that black and white when it comes to Law. Just think such blanket statements are wrong, these are what you believe or have read and been lead to believe are your rights. Marko has a very valid point. At best they are loose guidelines and everyone needs to take that into account. It is by no means a Legal opinion but a persons. The Only Right you have is in the Constitution and that is also open to Court interpretation.

I think acadielibre makes an excellent point in his last post.

That this is not even close to 'black letter law' - that there is tons of room here for interpretation....and people STILL need to be careful. I would not want someone reading this to take it as gospel and then have to defend themselves in court or have to reply to a lawyer's letter. What YOUR personal interpretation is will 100% NOT be shared by any party that tries to sue someone that just goes ahead and takes the shot. Whether the fine print on a ticket is or is not a contract is up for debate. With sincere respect, It does not make it invalid just because you say it is.


Of course we want people to know their rights but we also need to tell people that DEFENDING those rights (like if i am the hall owner and decide to call the police and/or sue) might well cost them money. :twocents:

[tegan]

Acadie Libre's point is a too sweeping and inaccurate generalization.

When talking about general and somewhat vague constitutional rights, then yes some interpretation is involved.

When you get to specific laws however, infringement of copyright and violation of Trademark law is defined in black and white in the law. It is not open to interpretation. Exemptions to violation written into the law are also defined in black and white, and they are not open to interpretation either. Definitions of terms used in the law are also very specific and in black and white. These are not open to interpretation either.

Simply put: Since it says in the copyright law that taking a photo of a work of art permanently installed in a public place is not copyright infringement, then if you have taken such a photo, then you have not infringed copyright.
That is in fact black and white.

Now, common sense indicates that if you commit some other illegality in the process of taking a photo such as assaulting someone, harassing them, loitering, trespassing, vandalism, etc., then a completely different set of laws comes into play.

Tegan

[Marko]

I'll likely be using myself as a guinea-pig really soon.

I'll let you know how it turns out....but I expect you to answer the phone when i get my one phone call. :p

[AcadieLibre]

Cool now you can show me this black and white law that can never be changed for it is written in stone somewhere lol. I am willing to accept an interpretation of whatever law you are referring to as a right, it will be Decision by the Supreme Court of Canada upholding whatever law you are referring to as a start. If it is a right it will be written as an opinion by the Majority of the Court with the majority siding with this law you refer too, and the decision by the court will state the law and give a definition of the courts interpretation of this law. Then we can discuss it from there. Nothing sweeping about anything I wrote, it is what it is. If you can show me a law that has not evolved nor been interpreted overtime by the courts differently I will buy your argument. Copyright laws change all the time, nothing set in stone at all. The only Rights you have are Constitutional ones, thats it, thats all and even at the best of times that also doesn't guarantee anything. Nothing more nor nothing less.

It is not even a discussion, they are called rights for a reason, I do not see photographing statues in a public place in our Charter of Rights, although a court or the sitting governments may choose to allow for those to be included in the interpretation of Your Rights, it is anything but a right but an interpretation that can be changed at will, be it a court leaning one way or the other or a sitting government willing to take that right away. If Parliament chooses to say that it is illegal to photograph a statue in public place, you know what? It is no longer a right unless the Supreme Court overturns it and nothing would stop them from rewriting the law and passing another one forcing the courts again to over turn it.

I can show you case after case where people thought they had rights only to have them taken away if even briefly. You cannot show me one right that any person has had thats has never been taken away at some point in time. I will even allow you to show me a right that people have had without quarrel for lets say 75 years, that has never been infringed upon, taken away etc. I am very easy to please, not even looking for a century of rights that people have that are written in black and white. Just one Right, not two, not three just one, and I will take the one you offered me or any will do.

[AcadieLibre]

.but I expect you to answer the phone when i get my one phone call. :p

Just a note, you have no right to that call, just have your lawyer call him lol.

[tegan]

Sorry, Acadie Libre but you are not making the least bit of sense to me.

Copyright and infringement is defined in law. It does not require the Supreme Court to define it. Trademark Law and trademark violation is defined in the legislation. It does not require the Supreme Court to define it either. The nature of copyright and trademark law is also governed by treaties with other countries and conventions that include most of the western world. It is not subject to any arbitrary interpretation that would be legal. The Trespass Act and violation is also defined quite precisely in the legislation. If you do not leave the property when asked you are trespassing. If you enter a property that is posted with NO trespassing signs, then you are trespassing. It is that simple. No interpretation necessary and absolutely no ambiguity. Why would anyone even consider the stupidity of having the Supreme Court rule on whether trespassing occured, unless there was a question of who owned the property, for example? Even that question however does not change the definition of trespassing.

The law in many of these areas is black and white. The only matter in question is whether it can be proved that you violated the laws as per the definitions of violation written into these laws.

On another level, if no law states that you cannot take photos on private property without permission, then obviously you can. If no law states that you cannot take photos of bridges, trains, and other elements of infrastructure, then obviously you can. If no law states that you cannot take photos of the police in ther performance of their duties, then obviously you can. This is NOT OPEN to any Supreme Court interpretation whatsoever.

What don't you understand about the above?

Tegan

[tegan]

I'll likely be using myself as a guinea-pig really soon.

I'll let you know how it turns out....but I expect you to answer the phone when i get my one phone call. :p

En français ou en anglais? :)

Tegan

[AcadieLibre]

A law/rights can be overturned by the courts or interpreted differently by the Government, The Courts or Legal Scholars. Any law is open to challenge, and a Right is open to challenge. How many laws have been overturned by the courts and how many have been upheld by them, so the final say on what a Law is a Court Decision. You ,I , Copyright Holder, or the Government can challenge the Constitutionality of any law or Right. Just because it is how you read the law does not make it the law. You make horrid legal errors, try and insist they are black and white, I want to to just show me one law that you quote as fact as being fact, not your word but that of even a Constitutional lawyer or make it any lawyer who will back up what you state as fact and will cover all my legal costs should they be wrong. Not going to happen, if you cannot see what role the Supreme courts is on the What a Right is or What a law is I can't explain that on a forum. A Court can either uphold or overturn a Law, as simple as I can spell it out.

This is the strongest explanation of your Rights that there are Online which I have linked to previously. And even this opinion states "Note that this is not legal advice, and I am not a lawyer, this is simply my interpretation of the laws surrounding photography." http://ambientlight.ca/laws.php and I have read far stronger legal opinions than this from legal scholars and lawyers and not one legal scholar or lawyer will say that is it the law definitively or without doubt it is a right they will defend for free because they just know it is the law and your right, they only to say the same thing the web site states. Are you willing to cover my attorney costs should I incur any listening to your assured legal expertise? If so we can find out quick enough.

[Marko]

I think we should bring this down a notch or 2

..nobody here is a lawyer so all this is just opinion. Even when statements are strong, until they are Proven correct (or incorrect), they are just opinions. Legal issues are always debated anyway. They are debated before-after and during their legislation. There's no black and white here imo., no way. We are entitled to our opinions though, and can always agree to disagree on certain issues.

thx
Marko

[cdanddvdpublisher]

I think we should bring this down a notch or 2

..nobody here is a lawyer so all this is just opinion. Even when statements are strong, until they are Proven correct (or incorrect), they are just opinions. Legal issues are always debated anyway. They are debated before-after and during their legislation. There's no black and white here imo., no way. We are entitled to our opinions though, and can always agree to disagree on certain issues.

thx
Marko


*nods* definitely seems like the time to take a step back and a deep breath and unwind a bit.

[tegan]

There's no black and white here imo., no way. Marko

Different opinions result from different perspectives and some perspectives are more relevant than others. When you get directly involved in a very substantial law suit as I have been for the past 3 years, your view of the law will change. That is guaranteed.

There are indeed black and white areas. :)

Tegan

[AcadieLibre]

I am in the music business and I have spent time in courts over the years fighting copyright issues and have had to go to court several times to protect my work. It is a huge issue in my business. I have had to defend against frivilous accusations a few times, although I am in the right there has been a few times it has made it to court before a judge would rule in my favour. I also have had to take others to court to protect my copyrights which should have been black and white but until a judge would say I was in the right it was very grey.

I know an artist who spent 4 years fighting over a copyright issue where he lost the case but eventually won the appeal, it cost over $25,000 in legal fees and he got off cheap. Most lawyers want a $5,000 retainer just to start with and thats just to get it off the ground. That is for music copyright issues, images may be easier one way or the other to prove but I highly doubt it. It should have been black and white in his favour but the first judge read the law differently then the appelate judge. So what may appear black and white always isn't. Having had to deal with copyright law over 20 years and speak from more experience then I care to recall. It is just a very big part of my chosen proffession, I would love it to be black and white. And just because you are in the right does not mean you recover your legal costs, only twice have I ever recovered my legal costs.

[tegan]

Copyright issues in music are very different and more complex than copyright in photography and video. Photojournalism is also extremely different from music too.

Video is much, more black and white too. In the example I have mentioned before a principal mentioned on National Television that he used a Walt Disney movie to entertain the students while the teachers were on strike. That was all that was necessary to lead to and determine the results of a law suit. A quick win in the amount of $60,000 for Walt Disney and against the board where the principal worked. There was no interpretation and no ambiguity.

As far as court costs are concerned, it is all relative. Is a quarter million unrealistic out of a total of 1.5?

Tegan