''Freelance photographers can't go taking pictures of young girls without telling them what they are doing,'' Was one of the statements made by John Vogrin, Assistant Security Chief of The Canfield Fair, to Andy Gray of The
Warren Tribune Chronicle in an interview for the article Gray wrote pertaining to what happened to me on September 6, 2009. In the interview, Vogrin said officers checked to make sure I wasn't a member of the media or working for the fair before I was questioned. He said the fair board has a right to restrict what people do on the property, comparing it to stopping a vendor who was selling merchandise at the fairgrounds without the proper permits.What outraged Vogrin the most when I was being interrogated, was my answer to his question, "What legitimate reason would someone have for photographing a child that wasn't their own at The Canfield Fair?" When I told him that I was an artist, and that I drew inspiration from the photos I take, he became quite indignant at the prospect of me profiting from photos taken of people at the fair. I tried very hard to explain to Vogrin slowly, and
in simple terms, that my motivation for the artwork I do isn't profit, but to celebrate my subject. He simply couldn't understand why anyone would create a work of art if it wasn't for profit.Profit, or not, can someone photograph a stranger in public? If so, is there a limit to what can be done with the image? This is something you should be interested in getting to the bottom of, because I'll bet you have a camera, and it doesn't matter if you intend to photograph a stranger or not, you could easily find yourself in the same situation as I did, or worse.The Right of Privacy
There is no standard, spelled-out federal right of privacy, however there are provisions made to protect our right to privacy, usually found on a state to state basis, this is generally how it goes:
The right of privacy is restricted to individuals who are in a place that a person would reasonably
expect to be private (e.g., home, hotel room, telephone booth). There is no protection for information that either is a matter of public record or the victim voluntarily disclosed in a public place." People are usually successful in calling upon The right of privacy in cases where they were photographed in the toilet, or their medical records were sold to someone. If one appears in public, like it or not, they can be photographed by a stranger. Vogrin tried to justify his actions by saying that The Canfield Fair is private property, and they can restrict people's actions however they see fit. That's abundantly apparent at this point, but again please consider that the fair is a very public event that openly encourages photography.The Right of Publicity
Again, there is no standard, spelled-out federal right of publicity, but is dealt with on a state to state basis. Lets take a look at Ohio's Right of Publicity in Individual's Persona. Chapter 2741.01 (A) of The Ohio Code defines an Individual's Persona as," an individual’s name, voice, signature, photograph,
image, likeness, or distinctive appearance, if any of these aspects have commercial value" There are restrictions on what can be done with an individual's persona in Ohio, for example, one can not print and sell t-shirt's with LeBron's likeness coming out of a horse's butt, with a caption reading,
"LeBron is a piece of...", However, someone could make and sell that t-shirt with my name and likeness. Why? Because my persona has no established commercial value. An interesting side note here is that one could paint a painting in Ohio showing LeBron and the horse, on account of Ohio Code
Chapter 2741.09 Exceptions to Ohio's Right of publicity in Individual's Persona. (A)1(c): " Original works of fine art".Photographer's Rights
We've looked at the the rights of Individuals appearing public, and the use of their persona, let's look at Photographer's rights. A photographer has a right to photograph anything that takes place in a public setting, this includes, but is not limited to:
accident and fire scenes
children
celebrities
bridges and other infrastructure
residential and commercial buildings
industrial facilities and public utilities
transportation facilities (e.g., airports)
Superfund sites
criminal activities
law enforcement officers
This right is protected under The First Amendment, Freedom of Expression. Once taken, that photograph becomes the copy-righted property of the photographer. Although anyone has the right to approach a person in a public place and ask questions about a photographer's activities, persistent and unwanted conduct done without a legitimate purpose is a crime in many states if it causes serious
annoyance. You are under no obligation to explain the purpose of your photography nor do you have to disclose your identity except in states that require it upon request by a law enforcement officer. If the conduct goes beyond mere questioning, all states have laws that make coercion and harassment criminal offenses. The specific elements vary among the states but in general it is unlawful for anyone to instill a fear that they may injure you, damage or take your property, or falsely accuse you of a crime just because you are taking photographs. Private parties have very limited rights to detain you against your will and may be subject to criminal and civil charges should they attempt to do so. Although the
laws in most states authorize citizen’s arrests, such authority is very narrow. In general, citizen’s arrests can be made only for felonies or crimes committed in the person’s presence. Failure to abide by these
requirements usually means that the person is liable for a tort such as false imprisonment. Absent a court order, private parties have no right to confiscate your camera, or film. Taking your camera or film
directly or indirectly by threatening to use force or call a law enforcement agency can constitute criminal offenses such as theft and coercion. If someone has threatened, intimidated, or detained you because you were taking photographs, they may be liable for crimes such as kidnapping, coercion, and theft. In the event you are threatened with detention or asked to surrender your camera/film, asking the following questions can help ensure that you will have the evidence to enforce your legal rights:
1. What is the person’s name?
2. Who is their employer?
3. Are you free to leave? If not, how do
they intend to stop you if you decide
to leave? What legal basis do they
assert for the detention?
4. Likewise, if they demand your camera/ film,
what legal basis do they assert for the
confiscation?Many Artists will only depict sterile, lifeless images devoid of real faces out of fear of being dragged into court. Likewise many Photographers practice a similar form of self-censorship. It could also be said that if one doesn't want to be dragged to court because their dog bit someone, they shouldn't own a dog. There are groups that are constantly, vigorously pushing to make pet ownership illegal, as well as a host of other rights we as Americans currently enjoy. Can you imagine what television, print, and visual arts who look like if were truly illegal to use an image of a person appearing in public? In the 80's they started fuzzing out the face of people that wouldn't sign a release.
The people doing the fuzzing, were big money media companies, who decided to side on safety; not out of fear of being sued and losing, but to avoid the entanglement of having lawsuits brought up. After 25 years of seeing fuzzed faces, the general public is under the uninformed impression that it must be illegal to show faces. To date, no artist has been successfully sued for using the likeness of someone in a public setting.I'm ashamed to say that at the time I was attacked, and publicly humiliated, I was not fully aware of my rights. If I had been, things would have gone differently. As I've mentioned before, I really don't care
for politics, or political paintings. I'd really rather create paintings that celebrate what's good aboutAmerica, without having to rely on words and explanations. I've painted these two paintings pertaining to what happened to me in the hopes of raising your awareness of this issue. It's an issue that becomes more relevant everyday, as most of us have a camera of some sort with us most of the time, and generally we feel free to take pictures at will, without fear of reprisal. It's up to us to be aware of the attacks on our personal freedoms we enjoy as Americans that are taking place constantly on a variety of fronts.ART IS NOT A CRIME!
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