Legal questions about photographing in conservation area

[eddy pula]

I know this question has been asked a thosand times but I really need help on this one. I know the classic if its a public place you don't need any permission to photograph and I never had any legal problems. I've been photographing at this Pond in Amherst MA, at the town beach for over a month, I ask nearly everybodies permission, not that I need it legally but I'm using a 4x5 and a tripod and sneeky is impossible with my set up. The Director of of Conservation came up to me today and told me that I need permission from the town because while its a public beach its a conservatory, and the classic rules do not apply (does that make any sense), and basically implied that I am a child pornographer. I photograph all types of people and do not think its wrong to photograph children splashing each other while I stand next to their parents with either verbal consent or implied. I use a crown graphic, not exactly a subminature spy camera, and any one with eyes in their head can see what I'm doing, and none of my subjects have ever complained. What should I tell him if he tries to stop me again?

Any help is appreciated.

Thanks, Eddy Pula

[bvstaples]

I think this is a tough one, because 1) you are dealing with one of the higher ups in the organization (I'm assuming you meant Conservancy and that he/she is truly the Director), and 2) you are dealing with someone who is basically ignorant of the law (especially given the accusation of child porn).

Most conservancies (if that's what it is) get public funding of some sort, making shooting at them no different than shooting on a public street—as long as where you are shooting is open to the public (sounds like it as there are others enjoying the grounds). For instance you should be able to shoot at the beach at Pequot Pond because it's a state park, but there might be areas of ecological concern that are off limits. The conservancy/park organization can stop you from going into areas where the rest of the public is not allowed, but they cannot stop you from shooting in a public access area.

I always take a proactive approach in these cases. I usually supply a copy of Burt Krage's Photographer's Rights (www dot krages dot com slash phoright dot htm) along with a letter of introduction and a statement of purpose. It's a boilerplate letter that I fill in the details and send off. I found this usually defuses most situations.

Assert your rights, be confident, and be in control.

My dos centavos...

Brian

[Louie Powell]

This sounds to me like a bureaucrat being bureaucratic.

There are no 'special rules' for conservation areas.

And I'm confused - was his beef that the area was a 'conservatory', or was he complaining that you were photographing children without the consent of their parents. Those are two totally different issues, and if he was conflating the two, then that just reinforces my belief that he was simply throwing his weight around.

I would register a written complaint with the head honcho of the town, with a copy to the State Attorney General and the ACLU.

[Charles Carstensen]

How do you know this "Director . . . " is really who he says he is. Arrange a meeting in his office.

[Lachlan 717]

I say call his bluff. Tell him to blow it out his a#se and see what he does.

It never ceases to amaze me a) the things that people assume they have any say in and b) the way that bullies capitulate when confronted.

It alway is fun calling someone who has a pair of 2s when you have a royal flush!!!

Lachlan.

[BrianShaw]

Invite the Mayor of the town to join you on your next photo outing. Then offer to photograph him and the Director together. Somewhere in the small-talk ask the mayor if there is any truth to this prohibition.

[eddy pula]

Thanks alot you guys, the Krages thing is exactly what I need. I know the law fairly well, but when I tell people they never believe me, bureaucrats only believe whats on paper anyway. He was dressed like anyone else but he had an official town of Amherst business card with his contact info. I'm just hoping it was a misunderstanding, that he heard from someone who heard from some one who was there that didn't like the looks of me. I'm a people person and easily convince people that I'm just there to make pictures, not some creep. I emailed him, telling him that I am a FINE ART photographer, and that most people love being photographed, and that I do not harrass the people who don't. And that I will keep making pictures with or without his approval. I don't think it will come to that but I always wanted to be jailed for my beliefs anyways. Thanks for your help, I'll keep you posted if things turn south.
Eddy Pula

[paulr]

There's a similar issue in NYC that I've been curious about. Brooklyn Bridge Park is a very small state park along the waterfront in Brooklyn, between the bkln and manhattan bridges.

They have a published policy that says you need a permit for "professional" photography, which last I checked included anything involving a tripod. The rationalle is that some of the park's revenue comes from selling things postcards and calendars, and that private professionals should have to pay to profit from their resource.

This all sounds odd to me. Does anyone know if a rule like that could actually have legal foundations?

(for what it's worth, I spent years photographing there with a tripod, without attracting attention and without a permit. But it's become gentrified and popluar; I don't know if anyone could still get away with it).

[Louie Powell]

There's a similar issue in NYC that I've been curious about. ---
They have a published policy that says you need a permit for "professional" photography, which last I checked included anything involving a tripod.

The bit about a tripod was included in a draft policy that the Mayor's Office on TV and Movies proposed two years ago, but there was such an uproar from photographers that the city was forced to back down.

Also, the rules were clarified to make it clear that what the City was concerned about was regulating activities that led to a disruption in traffic or other aspects of city life.

The only restrictions that I'm aware of in NYC today are:
- limitations on the use of tripods on sidewalks, especially in midtown Manhattan
- limitations on photography of bridges
- limitations on photography in subway stations
These limitations are all based on public safety considerations - the premise that a tripod can create tripping hazards for pedestrians.

I understand the temptation to think that photography restrictions are intended to protect the sale of postcards, but realistically, I suspect that in today's worlds, the revenue that tourist attractions receive from tripods is so insignificant that it doesn't begin to make up for the lost revenue of photographers who refuse to pay the admission fee because they are told that photography is not allowed.

The National Park Service has similar rules that impose constraints on "professional photography". While I don't believe that it's actually written into the regulations, I believe that the distinction that the NPS applies is that if the photographer wants to venture into areas that are generally closed to the public, or if the photographic activities require the presence of a park ranger to direct traffic or control crowds, then it is considered 'professional' and subject to regulation. And the final decision is up to the local Park Superintendent.

Ultimately, the problem is that the difference between 'professional photography' and what we do as amateurs is very hazy, and has much more to do with how the photographs are going to be used and almost nothing to do with what kind of equipment the photographer is using.

[Jeff Conrad]

At the risk of oversimplifying: if there's a law that says you need a permit, you need a permit; if not, you don't. Often, you can find this out by asking someone at the agency in charge of wherever you're photographing, but you may need to talk to several people to find someone who knows the real deal. Some times they simply mention a policy, which doesn't mean much if it isn't backed by a law. Most of these folks don't like challenges to their authority, and sometimes it can be tough to ask tactfully but firmly for a law that supports a policy.

There often are other sources. Federal laws, most state laws, and many local laws are available online, though finding the appropriate one can sometimes require a bit of work. In some cases, the rules may be posted on the agency's web site, saving a lot of trouble (but be sure to actually read any law that referenced or paraphrased rather stated verbatim). Sometimes you may encounter a policy that seems at odds with the law; you then need to decide whether it's worth going at it with agency personnel.

Though I've seen many signs forbidding photography of NYC bridges, but I've yet to see anyone cite a law in support of this. You can't get convicted of violating a sign, but you may not win an argument with a cop, either.

You don't need a permit from the NPS unless you're doing something more than just "commercial photography"; the requirements are covered by 36 CFR 5.5(b):

Still photography. The taking of photographs of any vehicle, or other articles of commerce or models for the purpose of commercial advertising without a written permit from the Superintendent is prohibited.

This may change in the near future, with a permit required if the photography involves a model or prop; the new rule, probably similar to the new 43 CFR Part 5 proposed in August 2007, will probably cover the BLM as well as the Fish and Wildlife Service. At this point, it's not clear what would constitute a model or prop. The federal legislation behind this change, Public Law 106-206, was signed into law in May 2000, so it's hard to say when a new rule replacing 36 CFR 5.5(b) may be issued.

I wrote an article several years ago on Still Photography and Permits on US and California Public Land (I've been waiting five years to update it with the new rule for Department of the Interior). Although it won't help much with issues in Boston or New York City, it may give some ideas on the types of questions to ask and where to look for the answers.