Committing Photography (from the archives)

(reprinted with permission from albuquerqueARTS Magazine, July 2007 issue.)

On one of the first sunny days this year, I find myself with no appointments, no studio session, no deadlines and nothing to do for hours. It is early afternoon on a weekday. Aha! Perhaps a photographic downtown walkabout is in order. I can test (play with) a new wide-angle lens, get a cup of coffee and later drift in somewhere for an early happy hour. Exquisite!

While walking around Downtown soaking in the sun and taking architectural shots, I capture several wide shots (10mm) of the intersection of 5th and Gold St. Suddenly, a black suburban screeches to a halt next to me. The armed, black-t-shirted man who jumps out flashes me an FBI badge, questions me and “takes me in.” The complete ordeal is amusing but far too long to convey here. If you are interested, check out ripwilliams.net. Essentially, I was detained for a couple of hours, taken into a federal building, placed under armed guard, questioned, lectured and then released. The officer who ran my ID to make sure I wasn’t on any terrorist lists plainly said that I had not done anything illegal. He also mentioned that I must get written permission from the adjacent federal office in order to do the non-illegal thing again. I still made happy hour.

Pondering over my second drink and grumbling about having my day disrupted, I mentally reviewed all of the photography blogs which have lately been awash with similar law-enforcement encounters from Los Angeles to D.C. Sometimes the photographer is simply harassed. Sometimes the images are confiscated. Sometimes an arrest occurs.

The question is this: Under what circumstances (if any) is it illegal to take pictures of structures? There are two core issues which might limit the legality of structural photography. First: Can buildings be copyrighted and therefore place the photographer in a copyright-violation scenario? Second: What relevant laws may have been put in place during the ongoing flurry of security legislation since 9/11?
The first question turns out to be fairly simple. Yes, copyright law can be simple! If the building or structure was built before 1990 it cannot be copyrighted (except for sculpture and other works of art). If built after 1990, full copyright protection is available but uncommon (many of the large sports stadiums don’t protect their architecture). This means, that if you are capturing an image of a building Downtown, the owner or designer probably cannot prevent you from publishing or otherwise using the image even if it has “proprietary architecture.”

The second issue is also simple. According to an NPR interview of Victor Perlman, who is general counsel and managing director for the American Society of Media Photographers (ASMP), there is nothing in the Patriot Act or any other homeland security legislation that restricts the right to take pictures from public property. “If you were photographing something that is visible from a public space while on public space there are virtually no laws that prohibit that. The problem is not with the rules. The problems are with people either not knowing the rules or not enforcing them properly.”

Okay. There doesn’t appear to be any federal legislation. But what about New Mexico law or Albuquerque City ordinances? A search of the entire New Mexico administrative code for “photograph + ‘public building’ ” yields only three results: two relating to executive and local “records retention and disposition schedules” and one relating to coal-mining performance standards. There is no mention of anything relevant.

Know your rights, photographers. Be polite the next time a security guard or police officer questions your motives for taking pictures of a building. They’re just doing their job. However, if the scenario goes much beyond asking for ID and verifying that you are not a wanted criminal (asking you to leave, confiscating equipment, deleting images, arresting or threatening to arrest) be sure to ask for the specific law under which the officer asserts that his action is legal. Watch with an internal grin (not an external one!) as they call the boss and other officers to try to track down the mysterious “law” that you are breaking. It does not exist currently. However, given the nature of the post-9/11 world, I am concerned that it may someday. Shoot while you can!

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