Case Law for Photography
Some notable U.S. court cases for photographers
Hierarchy of U.S. case law: Supreme Court; Circuit Court; District Court.
Copyright
See copyright case law.
First Amendment & Photography
When is photography protected as “free speech”?
| Case name, year | Findings |
|---|---|
| Galella v. Onassis, 1972 | A paparazzi’s harassing conduct was not protected by the First Amendment. |
| Miller v. California, 1973 | “[O]bscene material is unprotected by the First Amendment.” |
| Texas v. Johnson, 1989 | Details the test for First Amendment protection. |
| Massachusetts v. Oakes, 1989 | “Photography, painting, and other two-dimensional forms of artistic reproduction … are plainly expressive activities that ordinarily qualify for First Amendment protection.” |
| Porat v. Lincoln Towers Community Assoc., 2005 | Private photography while trespassing was not protected by the First Amendment. “[P]rotected First Amendment conduct [is not when photographers use] cameras, but [when] the cameras [are] used as a means of engaging in protected expressive conduct.” “[C]ommunicative photography is well-protected by the First Amendment,” “It is well established that in order to be protected under the First Amendment, images must communicate some idea. To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.” “[The photographer] effectively disclaim[ed] any communicative property of his photography as well as any intended audience by describing himself as a ‘photo hobbyist,’ and alleg[ed] that the photographs were only intended for ‘aesthetic and recreational’ purposes.” |
| Larsen v. Fort Wayne Police Dept., 2010 | “The First Amendment, however, does not protect purely private recreational, non-communicative photography.” “The First Amendment is not implicated because a person uses a camera, but rather, when that camera is used as a means of engaging in protected expressive conduct or, less commonly, to gather information about what public officials do on public property” |
Privacy
| Case name, year | Findings |
|---|---|
| Wheaton v. Peters, 1834 | “defendant asks nothing — wants nothing, but to be let alone until it can be shown that he has violated the rights of another.” |
| Boyd v. U.S., 1886 | “the sanctity of a man’s home and the privacies of life.” |
| Olmstead v. U.S., 1928 | First mention by Supreme Court of “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” |
| U.S. v. Morton Salt Co., 1949 | “corporations can claim no equality with individuals in the enjoyment of a right to privacy.” |
| Daily Times Democrat v. Graham, 1964 | embarrassing photo not newsworthy. |
| Griswold v. Connecticut, 1965 | “‘Privacy’ is a broad, abstract and ambiguous concept.” Supreme Court rules that the Constitution protects a right to privacy in the “penumbras” and “emanations” of constitutional protections such as the Ninth Amendment and Fourteenth Amendment. |
| Estate of Elvis Presley v Russen, 1981 | |
| ETW corporation v. Jireh Publications, 2000 | Tiger Woods “We find that Rush’s work does contain significant transformative elements which make it especially worthy of First Amendment protection and also less likely to interfere with the economic interest protected by Woods’ right of publicity. … Rush’s work does not capitalize solely on a literal depiction of Woods. Rather, Rush’s work consists of a collage of images in addition to Woods’ image which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods’ achievement in that event. Because Rush’s work has substantial transformative elements, it is entitled to the full protection of the First Amendment. In this case, we find that Woods’ right of publicity must yield to the First Amendment.” |
| Felsher v. U. of Evansville, 2000 | “a corporation may not properly sue [for invasion of privacy except for appropriation of name or likeness]” |
| Comedy III Productions, Inc. v. Gary Saderup, Inc., 2001 | “When an artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist’s right of free expression is outweighed by the right of publicity. As is the case with fair use in the area of copyright law, an artist depicting a celebrity must contribute something more than a “merely trivial” variation, but must create something recognizably “his own” in order to qualify for legal protection.” |
| Bond v. Blum, 2003 | “the protection of privacy is not a function of the copyright law.” |
| Alison Chang v. Virgin Mobile, 2007 | Creative Commons Flickr photo used as ad without permission. |
| Emo Nussenzweig v. Philip-Lorca diCorcia, 2007 | article 1, article 2. Sale of street photo considered invasion of privacy and a breach of religious rights. Result: considered works of art, not commercial, thus protected by the First Amendment. |
Property: Trespassing for photography
| Case name, year | Findings |
|---|---|
| Perry Education Ass’n. v. Perry Local Educators’ Ass’n., 1983 | Traditional public forums include streets, sidewalks and parks. non-public forum. This is public property which is not by tradition or designation a forum for public communication. The Supreme Court has “recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes … as long as the regulation on speech is reasonable” and viewpoint neutral, according to the Perry opinion. |
| Noc, Inc. v. Schaefer, 1984 | “The corporate plaintiff, because it is a corporation, has no action for invasion of privacy.” “While a corporation may have its reputation or business damaged as a result of intrusive activity, it is not capable of emotional suffering. … if there were [claim of reputation or business damage], it would not be recoverable on a theory of invasion of privacy.” |
| Food Lion, Inc. v. Capital Cities/ABC, 1997 | jury awarded Food Lion nominal damages of $1 (plus $5M in punitive damages for fraud). |
| Felsher v. U. of Evansville, 2000 | “a corporation may not properly sue [for invasion of privacy except for appropriation of name or likeness]” |
| Porat v. Lincoln Towers Community Assoc., 2005 | A photographer can be prosecuted for trespassing as personal photography is not protected by the First Amendment. “[P]rotected First Amendment conduct [is not when photographers use] cameras, but [when] the cameras [are] used as a means of engaging in protected expressive conduct.” “It is well established that in order to be protected under the First Amendment, images must communicate some idea. To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.” “[The photographer] effectively disclaim[ed] any communicative property of his photography as well as any intended audience by describing himself as a ‘photo hobbyist,’ and alleg[ed] that the photographs were only intended for ‘aesthetic and recreational’ purposes.” |
| Jacque v. Steenberg Homes, 2007 | $100,000 in damages for a willful trespass. |
| College of Charleston Foundation v. Ham, 2008 “Dixie Plantation” | “Plaintiff alleges that Defendant, a prominent professional photographer, trespassed onto Dixie Plantation to take a certain picture, entitled ‘Plantation Road,’ which he is now offering for commercial sale.” “The Complaint alleged trespass, invasion of privacy, and conversion, and sought an injunction prohibiting further distribution of the photograph and actual, consequential, and punitive damages.” A district court dismissed the conversion and invasion of privacy causes of action but allowed the trespass cause of action to proceed. The case was ultimately settled by mediation which was confidential, but notably the photo remained for sale. “[The Plaintiff also alleges that] as a direct and proximate cause of the Defendant’s actions, the Plaintiff lost use of its private right to the property and lost use and exclusivity of a unique image and representation found on Dixie Plantation.” “Defendant does not seem to dispute that Plaintiff, as property owner, would have had the right to refuse to allow him to take the photograph in question and force him to leave the property. The right Plaintiff actually seeks to exercise is the retroactive application of this very same right. This strikes the court as something altogether different than a simple, straightforward claim of ownership over the photograph. Accordingly, Plaintiff’s causes of action do not constitute a transfer of copyright, and said causes of action will not be dismissed on these grounds.” “The court can see no way in which the publication of a photo capturing a beautiful image like ‘Plantation Road’ in any way ‘bring[s] [invasion of privacy] shame or humiliation to a person of ordinary sensibilities.’ … [thus] Plaintiff’s invasion of privacy cause of action must necessarily fail as a matter of law …” “if it is a trespass for a photographer to take photographs without the owner of private property’s consent when the owner has at least consented to have the photographer on the property, the court simply cannot see how it would not also be trespass in a similar situation where the difference is that the owner has not even consented to allow the photographer on the property. Furthermore, the issue of physical versus intangible harm does not represent a per se requirement of a holding of trespass, but rather goes to the issue of harm. It is one of the most basic principles of tort law that in order to recover, the plaintiff must show that harm was proximately caused by the plaintiffs actions. Here, Plaintiff has alleged no physical or tangible harm from Defendant’s actions. Accordingly, Plaintiff has stated no claim upon which actual or consequential damages can be awarded by this court.” “Plaintiff [is] not required to allege a physical harm in order to state a claim for trespass …” “if a plaintiff is in a unique situation where an award of damages will not be sufficient to make it whole again, a court may undertake an equitable remedy such as an injunction.” “Most jurisdictions … have held that corporations may not bring suit for invasion of privacy.” Learn more with Dixie Plantation |
| Boring v. Google, 2010 | Private property owners were entitled to $1 in nominal damages (but not punitive damages) when a Google vehicle trespassed on their land to take Streetview photos. |
Comments
Reply by Anonymous
September 11, 2016
Thank you for this.
Reply by Anonymous
December 21, 2015
Thank you so much! Extremely helpful :)
Reply by Email
November 2, 2013
Thank You! This is a great compilation of info!