DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
- The right to take a photograph
- The right to publish a photograph
- The right to sell a photograph
- The right not to be harassed
These rights can be curbed by the rights of others.
The Right To Take A Photograph
You have a legal right to take photos. This is a First Amendment right, where photography is considered a form of “speech.”
Adopted in 1791, the First Amendment to the United States Constitution (part of the Bill of Rights) states that:
“Congress shall make no law … abridging the freedom of speech …”
Over time, courts have interpreted “Congress” to include all federal and state law-making bodies, and “speech” to include all forms of artistic expression such as photography.
“… courts have found that photography … constitute[s] protected “speech” under the First Amendment.”
— Attorneys Kurt Wimmer and John Blevins of law firm Covington & Burling, August 15, 2005.
The Right To Publish A Photograph
Similarly, freedom of speech gives you the right to display and publish your photography, as a form of artistic expression.
The Right Not To Be Harassed
You have the right not to be harassed or restricted in movement (the right to “liberty”) and the right to pursue photography as a form of “happiness.” These rights are guaranteed by the following:
“… all men … are endowed … with certain unalienable Rights, … among these are Life, Liberty and the pursuit of Happiness.”
—- U.S. Declaration of Independence, adopted 1776.
“No State shall … deprive any person of life, liberty, or property, without due process of law ….”
— Fourteenth Amendment to the United States Constitution, ratified 1868.
The Right To Sell A Photograph
You have a right to make money from your hobby.
“Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment.”
— Judicial opinion, Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884).
However, all of these rights can be restricted by the rights of others.
The Rights Of Others
The subject of your photo may have rights too. If the subject’s rights conflict with yours, then the two rights have to be weighed and a judgement made: which is more important. There are many instances in law where the right to speech is trumped by other rights. Here are some:
Your right to take a photo is limited by government security and people’s privacy. You may not be able to photograph in prisons, military bases, courthouses, and airport checkpoints. You can’t photograph people in private places such as dressing rooms, restrooms, medical facilities, and inside their homes (without their permission).
Your right to sell a photo is limited by people’s privacy, publicity (right to control one’s own image), copyright of artwork, trademark. Whereas you can generally use a photo in a work of art, using the same photo for commercial purposes encounters more restrictions. Commercial use includes endorsement, advertising and purposes of trade
Your right not to be harassed or restricted in movement is limited by the state’s rights to public safety, prevent interference with traffic, pedestrian movement, an investigation, and trespassing on private land.
“Although safety is undoubtedly a significant government interest, broad assertions of a safety interest, without evidence to substantiate them, cannot survive when the First Amenement is implicated.”
— Gannett Satellite Info. Network, Inc. v. Township of Pennsauken, 709 F Supp. 530, 536-37 (1989).
“The archetypical examples of traditional public fora are streets, sidewalks, and parks.” “In such places, the government’s ability to permissibly restrict expressive conduct is extremely limited.” “[T]he rights of the state to limit expressive activity [in public forums] are sharply circumscribed.”
— United States vs. Grace 461 U.S. 171, 176-77 (1983); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
See Legal Rights of Photographers by Andrew Kantor.
With all this, you may ask: “What can I photograph?"