The Photographer’s Rights Rant

Spend enough time on the Internet looking at photography subjects and you’re bound to run across a rant on Photographer’s Rights. Today’s your lucky day, as you just ran into another one. My own view of the situation isn’t really so much about Photographer’s Rights.  Photographers aren’t a special breed that have any more or less rights than anyone else. Instead, I just view it as a topic of rights available to U.S. citizens within our own country. If you want a rant about Canadian, British or any other nation’s rights, you’ll have to look elsewhere.

What qualifies me to speak about this subject? Nothing, other than the fact that I’m subject to the society we build and the rules we observe. With that in mind, I’ll give you the standard disclaimer that I’m not an attorney and I’m not dispensing legal advice. I’m dispensing my opinion on a subject that affects me as a citizen. There are some attorneys who speak with disdain about bloggers who dare to speak about this topic. That’s probably because there’s a great deal of misinformation being bandied about. On the other hand, many attorneys can’t agree on what is or isn’t correct, so why shouldn’t I have my own say about the topic?

My grumbling began on a forum when I saw some of the most absurd advice ever given about our rights. After a tale where a photographer was ordered to delete his pictures by a NYPD officer or have his equipment confiscated, someone posted the following quote:

“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” - Benjamin Franklin

The advice boiled down to backing down. Don’t push it. Exercise restraint. You have rights, but only some of them are important, so why push it? Only worry about the essential liberties.

What followed was an argument about which liberties are essential, what constitutes property, and why photographers should not question authority. In fact, one person plainly stated that our forefathers never envisioned events like September 11th, 2001. He seemed to opine that our Constitution would be different if written on October of 2001, and wondered why we would ever fight those who put their lives on the line for us.

It would be easy to blame the school system, but I can’t.  I went to public school in one of the worst-rated education systems in the nation, and I paid attention. What excuse do other people have for not knowing their own history, or not being able to put it into perspective?

Believe it or not, the founding fathers of our country actually faced a much worse crisis than September 11th. If you go back to study the original pilgrims at Jamestown, you’ll realize that half of them were wiped out by disease in the first six months. They packed up to leave, only to turn around shortly downriver when they discovered supply vessels approaching the settlement. Over the next twelve years, the population was similarly wiped out by more disease and Native American attacks. Then the women started to arrive, so they figured it would be worth staying a little longer. They faced twelve years of disease, attack and were surrounded by death without any heterosexual contact.

Flash forward to the Revolutionary generation. They faced the greatest armed force on the planet. Their homes and families were destroyed before their very eyes for years. While September 11th was tragic, as was Pearl Harbor, it had nowhere near the same amount of devastation on a general population was the daily lives of our forefathers. It was because of these struggles and adversity that they created a constitution for posterity (that’s us), and then quickly amended it with a Bill of Rights.

So what does any of this have to do with photography? Plenty. The people who came here to create a new society eventually escaped the kind of oppression that some folks would blindly recreate by abdicating their rights. When we create a photograph, that image becomes your property. Your intellectual property, if you like. In either case, it’s yours. Your camera.  Your card. Your photograph. Someone had the audacity to argue this point with me, but offered no substance other than “you’re wrong.” When I asked him whose property it (the image) was, I received no reply. Trust me, it’s yours. That’s an important factor.

Some people thought the argument was a First Amendment issue, but I believe it is a Fourth Amendment issue. When the NYPD officer ordered a citizen to delete his photographs or suffer confiscation of his equipment. that officer was violating the Fourth Amendment.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

To a layman, you would think it would be black and white. To an attorney, particularly a litigator, it’s not. Ed Greenberg recently shared a thought in an article in Photoshop User magazine; “What is wrote, may not be what is.” That’s because circumstances vary. Attorney arguments vary. Judges and juries vary. On top of that, a lot of legislation is written in such a way that different people may interpret the same words in different ways. Courts rule, and sometimes get overruled. Even the Supreme Court has occasionally ruled opposite its previous rulings. Part of the message behind that statement is that the victors of an issue are those who are able to persuade a judge or jury that their interpretation is the correct one. The truth must be won. Well, you can’t win if you quit.

We have a rich history of court rulings at our disposal to help define the legislation. From that, we know that the officer needs a warrant to confiscate your equipment, or probably cause to arrest you for a felony to seize your equipment. Ordering a citizen to delete his images, his property, or face confiscation of equipment is coercion, and that is illegal in all 50 states.

This is why we sometimes fight those who may put their lives on the line. It’s because sometimes they are wrong. Sometimes they abuse their authority. Sometimes their actions are unjust. Sometimes the law needs to change and that begins with someone having the courage to stand-up for his or her principles. If we never opposed those in authority when we felt it was necessary, we would not have civil rights laws. Women would not have the right to vote or drive. Even recently, the law finally caught up with the attitudes of many U.S. citizens to allow Gays to openly serve in the military. As a society, we have not resolved all issues of rights and liberties. Those issues change with the times because the people demand them. Quite simply, the United States government exists to serve its citizens, not rule them.

Fight or Flight?

Do you stand your ground or do you walk away? Are you sure that you’re in the right? Is the issue important enough to your values, or would you rather just avoid the hassle, even if you’re sure that you’re in the right? Circumstances vary, and it’s an individual choice. I have a pretty simple outlook on things:

• I don’t go out to provoke or intentionally cause a conflict.
• If someone comes along and is reasonable with me, I’ll be reasonable with them.
• If someone is annoying, but not intimidating, I’ll generally leave so I won’t be annoyed.
• If someone is trying to intimidate me, I’ll stand my ground. I simply can’t abide being bullied and giving up. I may get my ass kicked one day, but it hasn’t happened yet.

Photographers are people, too.  Too many people seem to think they have a right to impose their will upon your actions. If they have good reason, I’m certainly willing to listen. If they’re rude, then it just became a LOT harder for them to get me to comply. Those of us who stand up for our rights under the law are not jerks for doing so. We aren’t arrogant for doing so, either. Conversely, standing up for your rights doesn’t mean you have to be ill-mannered about it.  My own practice is to be polite, but resolute. I’ve had a number of people, some in law enforcement and some pretenders, who have tried to intimidate me out of my rights. It doesn’t work. People who try to intimidate you are bullies, and bullies like the feeling of power they get when you cower. What they don’t like is when their intimidation has no effect. That’s when they have to decide to put up or shut-up. For security guards, all they have to do is ask me to leave if I’m on private property and I’ll go. Otherwise, I’ve learned to ignore them.

Police, for the most part, haven’t given me any problem. In fact, I’ve had police tell security guards to back off when I have a right to shoot. Something to keep in mind about police officers is that they have a lot of procedural headaches. Some will abuse their authority if you give them a headache, but it depends upon the circumstances. One local deputy I know has arrested people when he knew the charges wouldn’t stick because it still afforded him the opportunity to ruin the guy’s day. That was the cop’s ego at work. What I learned from him was that he felt it was more damaging to challenge his authority than to actually break the law. Yes, you can be completely innocent and get locked up. More often than not, I think, it happens when the innocent person wasn’t using any tact. That’s why I recommend being polite, but resolute. There are no guarantees, but most of the cops I know will respect you if you respect them, even if you disagree. Being respectful doesn’t mean you have to be spineless and abdicate your rights as a citizen, even if you are a lowly photographer.

Think back to those forefathers, the ones I was told I shouldn’t quote. The forefathers someone said couldn’t imagine the world we face today. Imagine how embarrassed they would be of us if we allowed ourselves to give up and quit because some bully told us we had to delete our pictures. I have a simple wish for 2011. I wish more photographers were like John Wayne – loud, proud and confident. Appeasement be damned. Stand up for your rights. You can’t rely upon anyone else to stand beside you if you won’t stand up yourself.