Trespassing and photography

By Andrew Hudson  October 30, 2013

The law on trespassing usually does not directly affect photography, which is a separate right (in the U.S.). A landowner can ask you to leave their property but they cannot otherwise directly prevent you from taking photos. If you have consent to be somewhere, you have a right to photograph what you see.

If you sell (or otherwise distribute) your photos when the terms of consent stated you could not, or you were trespassing when you took the photos, then the landowner may have a legal argument if they can show harm (such as loss of potential income). This gets murky. Below is some information but you should contact a local lawyer for specific legal advice.

Journalists have no constitutional right of access to the scenes of crime or disaster when the general public is excluded. Branzburg v. Hayes, 408 U.S. 665, 1 Media L. Rep. 2617 (1972).

There is no trespassing when the photographer is on:

  • land open to the public.
  • private land open to the public, as the landowner’s consent is implied
  • private land as the invitation of a landowner’s tenant

“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.”
College of Charleston Foundation v. Ham, 2008 “Dixie Plantation”

For more information, see Case Law: Trespassing.

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