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Photography and the Law

If anyone has reason to think that any of the claims below are false (even partially) or has useful suggestions for addition or modification, please e-mail me.

Beware of lawyers and others who are motivated to scare you about the legal dangers of photography.

Generally, in the United States you can legally photograph anything you want. Serious legal concerns about what you do with your photographs arise mainly if you are wanting to use them for commercial purposes, such as advertising. So if that is not the sort of thing you do, then there are few worries.

Here’s the main thing: If you cause harm to someone through your use of a photograph, you are in principle liable to being sued for damages. But that is true for any harm. How could one harm someone by means of a photograph?

1. You could publish it with a caption that falsely characterizes what it repesents in a way that harms the reputation of the subject. For example, if you show a person entering a door and write “So and so entering his Mafia hideout.” If he is in fact not entering a Mafia hideout and further is not a member of the Mafia, you could be sued for defamation of character.

2. If you hide in a public bathroom and photograph someone on the toilet and publish it, that person could sue you for violating his privacy rights. There is a general presumption in the law that what a person does in certain places gives him the “reasonable expectation of privacy.” Taking the photograph and keeping it in your collection may not be actionable, since no harm is done, but publicizing the photograph and causing the subject embarrassment may be a tort and in fact may even be illegal as a misdemeanor.

3. If you photograph a someone (famous of not famous) on the street and use the photograph in an advertisement of a product in a way the implies the famous person endorses the product, you could be sued on the grounds of ... But you are free to include such photoraphs in your personal collection or display them in shows—unless you are causing serious harm to someone in the photograph.

4. If you take photographs of naked children, you could come under suspicion for involvement in child pornography. If these are innocent photos of your own children, you have not violated any laws. If any of the photographs involve sexual activity, you are ipso facto involved in child pornography. You would be harming the child by means of the photo and furthermore the photo is evidence of harming the child by having then engage in the acts photographed.

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