The Great Change: Turning Cathy into a Lawyer

Photography bans are showing up more and more these days. Sometimes they show up on public transportation systems, as a bizarre and pointless reaction to terrorism fears. I remember once seeing a conductor on a NJ Transit Main/Bergen line train essentially threaten to throw some hapless tourists off a train unless they put their camera away. I cannot even begin to fathom what anyone thought would be accomplished by preventing people from taking pictures of each other while riding on a train. Nor am I sure what the conductor's authority was on his threat. I once did an extensive search on LexisNexis - even consulting with one of the advisory attorneys to make sure I wasn't missing it - to find the law the conductor was enforcing, but interestingly there was no record of one. From what I gather the ban had apparently been a temporary policy invoked by NJ Transit, most likely adopted with no public input, that fortunately went away shortly thereafter. But I understand that other systems unfortunately may still have their bans on the books.

All of these such laws, be they related to transit systems or other public spaces, invoke significant free speech concerns. It is a distinction without a difference that people can observe something and convey what they saw in words, yet they cannot also observe something and convey it in pictures. Some people best communicate, and some subjects are best communicated, in that particular non-verbal medium, so any rule that prevents people from freely communicating what they will constitutes a tremendous imposition on their freedom of expression.

It's also a generally bad idea because an active citizenry able to observe and relate the world around them provides an important check on abuses that the citizenry might observe, be they from public or private sources. It poses a check on malfeasant behavior if there can be proof of misdeeds that the victims can then use to pursue recourse.

But even more neutrally: simply having people be able to observe, record, and convey what they observe increases everyone's understanding of the world around us and enables us to participate in it more effectively.

Of course, there can be downsides to photography. I'm certainly no fan of the unblinking eye of Big Brother with its cameras everywhere watching everyone. Yes, it might also keep people's behavior in check, but not with an authority that a free democracy should tolerate. Rather, the type of photography I'm advocating is essentially gap-ridden, covering only what a person with their own eye at the time could see. Some technological intermediation could be acceptable, e.g. with reasonable zoom lenses and/or time delays, etc. The point though is to (a) not permit cameras to act autonomously, without the inherent limitations of human controllers, and (b) to ensure that parties other than governmental authorities have the ability to monitor and record as well. After all, someone needs to be able to watch the watchers, and private photography is one way to ensure that happens.

The other downside to public photography is that the people being photographed do have privacy rights that can be invaded by being recorded, regardless of who is doing the recording. They can also have other rights, too, such as rights of publicity. There always will be tension between the rights of the recorder and the rights of the recorded, but I think the best course of action is to allow more latitude to the recorders. After all, any harm that comes from the recording stems from what is done with the recording after it is made, so it would be much better to put limits on that later usage as opposed to limits on the initial creation. For instance, if someone took a picture of me in a crowd, I would have my rights of publicity violated if they used it in an ad without my permission. On the other hand, if it appeared on the front page of a newspaper in a story about the event, that would be permissible. As would someone else's private snapshot capturing me that would simply live in their private family album or perhaps be shared among their limited circle of friends and relatives. Maybe I wouldn't really like it, maybe I was having a bad hair day or something... But no one's hair or personal vanity is more important than the public's need to understand the events around them in the way photography permits.

Which brings me to the issue raised at the Stern Grove Festival, where photography was banned. I can understand forbidding audio-visual recordings, which were in fact also forbidden, because copyright law makes the unauthorized fixation of a performance illegal. But I couldn't figure out under what authority the venue could prohibit private photography. It was, as far as I could tell, a free concert at a public park.

Now, if it turns out the "park" wasn't actually public, then that could make a difference. We were allowed to trespass on the land subject to the owner's permission, and that permission could be contingent on our agreeing not to take pictures. However, if the park was public, as it seems it was, then people's attendance did not require permission, and thus making such permission contingent on a no-photography condition wouldn't have been possible. On the contrary, trying to do so raises the issue of state action affecting people's free speech rights, and it is not at all clear that the state would be able to do this constitutionally.

So under what other theory could the festival organizers have banned photography? Perhaps contract? Most concerts are ticketed events, and a ticket is a contract for which both parties (attendees and the venue) give the other consideration (the attendees pay money, and the venue provides the concert). As part of this contract there could be other ancillary terms, such as a photography ban. In that case, taking pictures would be a breach of the contract. But at Stern Grove, there are no tickets. Furthermore, because it's free, patrons don't supply any consideration for being there at all, which prevents any sort of implied contract from being inferred either. Anyone could come or go as they pleased (subject to crowd maximums). In fact, in theory the venue could have even canceled the performance at any time since its advertisement was merely a gratuitous promise and not an offer made to the public as a precursor to forming a contract. (Of course, if the venue had canceled the show it might still have been liable to patrons on an estoppel theory if the attendees had suffered damages in their reasonable reliance that the concert would take place, but that scenario is beyond the point here.) So without a contract there could be no contract term for the venue to enforce to prevent attendees from taking pictures.

There is the possible copyright angle, which does apply to the ban on audio-visually recording the concert since copyright law makes it illegal to fix a performance into a permanent medium without the permission of the performer. However, that rule applies only to performances. It does not apply to the split second pose that happens to be captured by a snapshot, which is likely not protectable by copyright at all. Perhaps if the performance had been a specially-costumed, highly-choreographed spectacle one could find sufficient originality in each pose upon which a copyright could be based, but then again, a snapshot is such a tiny snippet of the performance that then you'd have to consider whether fair use would apply to its capture. In any case, the copyright in such a scenario would be based entirely on what was done with the picture after it was taken. And in this particular case the point is definitely moot since it was not a particularly choreographed or costumed performance (nor are any other events at Stern Grove this summer likely to be).

Rights of privacy also don't seem particularly salient here either: a person standing on a public stage, knowingly performing before thousands of people, can't reasonably claim a right of privacy in that action. Rights of publicity could be relevant, but again, they pertain to what happens to the picture after it is taken, not that it is taken in the first place. Granted, it's easier to control what happens to your picture if you can prevent it from being taken at all, but, as discussed above, there can be reasons for taking the picture that would trump the rights of those possibly affected by it, and thus it should not preemptively be prohibited.

It's possible I'm missing something in my analysis, and I welcome any comments as to what that might be. But running this situation through my head yesterday I couldn't figure out under what authority the venue could enforce its photography ban. Of course, I still didn't take many pictures, because while it might not have had authority to enforce it, that didn't mean it wasn't going to try.

Edited slightly 2/5/08.