Rights & Disclaimers

My Rights As your Hired Photographer

The Photographer's Right - A Downloadable Flyer

Your Rights When You Are Stopped or Confronted for Photography

The right to take photographs is under assault now more than ever. People are being stopped, harassed, and even intimidated into handing over their personal property simply because they were taking photographs of subjects that made other people uncomfortable. Recent examples have included photographing industrial plants, bridges, and bus stations. For the most part, attempts to restrict photography are based on misguided fears about the supposed dangers that unrestricted photography presents to society.

Ironically, unrestricted photography by private citizens has played an integral role in protecting the freedom, security, and well-being of all Americans. Photography in the United States has contributed to improvements in civil rights, curbed abusive child labor practices, and provided important information in investigating crimes. These images have not always been pretty and often have offended the sensibilities of governmental and commercial interests who had vested interests in a status quo that was adverse to most other people.

Photography has not contributed to a decline in public safety or economic vitality in the United States. When people think back on the acts of terrorism that have occurred over the last forty years, none have depended on or even involved photography. Restrictions on photography would not have prevented any of these acts. Similarly, some corporations have a history of abusing the rights of photographers under the guise of protecting their trade secrets. These claims are almost always meritless because entities are required to keep trade secrets from public view if they want to protect them. Trade secret laws do not give anyone the right to restrain photographers from taking photographs in public places.

The Photographer's Right is a downloadable guide that is loosely based on the Bust Card and the Know Your Rights pamphlet that used to available on the ACLU website. It may be downloaded and printed out using Adobe Acrobat Reader. You may make copies and carry them your wallet, pocket, or camera bag to give you quick access to your rights and obligations concerning confrontations over photography. You may distribute the guide to others ,provided that such distribution is not done for commercial gain and credit is given to the author.

A primer on invasion of privacy

Celebrities, politicians and other sought-after sources of news would appear, by their routine claims that members of the media have violated their privacy, to understand precisely what is private and what is public, or newsworthy, information.

Journalists, however, often possess different notions of privacy and newsworthiness, and know that the question is more complicated. Reporting news stories in a way that serves and informs the public will often entail publicizing facts or displaying images that will embarrass or anger someone.

To make privacy matters even more difficult for journalists, courts constantly redefine what is private based upon interpretations of the elusive legal standard of a "reasonable expectation of privacy." For example, the California Supreme Court recently introduced into the equation the question of whether the claimed intruder is a member of the news media -- thus allowing privacy claims based upon the fact that an individual expected not to be observed by a member of the news media, rather than the fact that the individual expected not to be observed in general. See Sanders v. American Broadcasting Cos., Inc., 978 P.2d 67 (Cal. 1999).

The U.S. Supreme Courts scolding of the media in the 1999 "ride along" cases for a perceived inattention to the privacy rights of the people featured in the news most likely reflects the current attitude of many judges and lawmakers and, thus, underscores the importance for journalists to be aware of general privacy principles.

In the context of determining that law enforcement officers who permit the news media to accompany them across the threshold of a home while serving a search warrant violate the Fourth Amendments prohibitions against unreasonable searches and seizures, the Supreme Court expressed disdain for the medias arguments in favor of access to information related to the execution of warrants, but alleged by the subjects of those warrants to be private.

Writing for the Court, Chief Justice William Rehnquist said that the presence of the news media did not further the objectives of an authorized intrusion by law nforcement officers into a home to execute a search or arrest warrant. The ostensible benefits of media presence -- accurately informing the public about law enforcement efforts to control crime, minimizing police abuses, and protecting officers from violence by the subjects of searches and arrests by recording those events -- were outweighed by the privacy interest of homeowners.

The assertion that media presence during the execution of a search warrant can serve a legitimate law enforcement purpose "ignores the importance of the right of residential privacy at the core of the Fourth Amendment," the Court held.

The California Supreme Court has taken a similar position on media presence and privacy and in two cases decided in 1998 and 1999, allowed the subjects of broadcast news pieces to hinge the parameters of their expected privacy on the nuances and gradations of their surroundings.

In June 1998, Californias highest court concluded that two people injured in a car accident could sue for invasion of privacy based on the fact that a cameraman recorded emergency aid given in a rescue helicopter. The accident victims, the court held, could claim a reasonable expectation of privacy in the rescue helicopter, even if they did not expect their conversations in the helicopter would not be overheard and could not claim a right to privacy at the accident scene prior to being moved to the helicopter. See Shulman v. Group W Productions, 955 P.2d 469 (Cal. 1998).

A year later, the California Supreme Court held that even an employee who knows a conversation in an open office space will be overheard by coworkers can pursue an invasion of privacy claim if that conversation is recorded by a reporters hidden camera. The case involved "telepsychic" hotline workers who were secretly videotaped by an undercover reporter, and writing for the court, Justice Kathryn Mickle Werdegar rejected the notion of privacy as an "all-or-nothing" concept and described an "expectation of limited privacy."

"There are degrees and nuances to societal recognition of our expectations of privacy: the fact the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law," she wrote.

The court noted its ruling was not meant to imply "that investigative journalists necessarily commit a tort by secretly recording events and conversations in offices, stores, or other workplaces." However, the courts ruling allows the "identity of the claimed intruder and the means of intrusion" to determine whether the subjective expectation of privacy was reasonable. See Sanders v. American Broadcasting Cos., Inc., 978 P.2d 67 (Cal. 1999).

The combination of a lack of recognition for the benefits of undercover investigative journalism and an acceptance of gradations of privacy in offices and stores open to the public by appellate courts of last resort such as the U.S. Supreme Court and the California Supreme Court puts journalists with no knowledge of privacy law in a dangerous position.

Under different circumstances, however, courts find the news media are justified in doing what their subjects may feel is invasive. For example, in May 1998, the U.S. Supreme Court decided not to review the decision of a split federal court of appeals in Pasadena (9th Cir.) that a flight attendant could not sue ABC for surreptitiously videotaping her from across the street as she stood at her doorstep and spoke to an ABC producer. The flight attendant had been on the flight that O.J. Simpson took on the night of his ex-wifes murder, and she voluntarily spoke with a producer who identified himself as a member of the news media on her doorstep, but declined an on-camera interview.

The flight attendant could not claim an invasion of her privacy occurred, however, because she knowingly spoke to a member of the media about a newsworthy topic and was filmed in public view from a public place. In rejecting her claim, the majority of the federal appellate court in Pasadena noted that the producer "id not enter her home. There was no evidence that any intimate details of anyones life were recorded."

The pursuit and publication of images can expose journalists to crushing financial liability if a court determines that the news organization has invaded a persons privacy. The invasion of anothers privacy is a "tort," meaning a civil wrong against another that results in injury.

A privacy tort occurs when a person or entity breaches the duty to leave another person alone. When journalists intrude on a persons privacy and cause emotional or monetary injury, they may be forced to pay damages.[1]

Each state has developed its own privacy law, either through the common law, statutes, or both. The right to privacy is an evolving branch of the law, and in most jurisdictions many legal questions remain unsettled.[2]

The First Amendment places some limits on the application of privacy law to the media. It does not, however, immunize the media completely. To avoid lawsuits, journalists must know how the law in their jurisdiction balances the competing interests of the press and the public against the privacy interests of the subjects of reports.

Courts have recognized four major branches of privacy law: 1) unreasonable intrusion upon seclusion; 2) unreasonable revelation of private facts; 3) unreasonably placing another person in a false light before the public; and 4) misappropriation of a persons name or likeness.

The facts of a particular case may implicate more than one branch of privacy law. Some states refuse to recognize one or more of the four torts; other states replace or supplement the common law with statutory privacy rights.[3]

This guide provides a general explanation of each privacy tort and related causes of action. The state case law section summarizes privacy cases involving photography from federal and state courts throughout the country.

Although photography poses some unique problems in privacy law, in general the legal analysis for invasion of privacy through images parallels the analysis for invasions through words. A complete examination of the privacy law in every jurisdiction is beyond the scope of this guide. However, the introduction to each state summary notes which of the four privacy torts have been recognized in any context by the state.

Intrusion

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts, § 652B.

Journalists run afoul of this tort through the process of gathering information. The subsequent publication of the information is not required.

Actions that may violate this privacy right include trespass onto private property, hidden surveillance, and the fraudulent entry into private areas.

Conduct that invades privacy may also violate the criminal law. In general, courts have held that journalists mst obey generally applicable laws. See, e.g., Cohen v. Cowles Media Co., 111 S.Ct. 2513 (1991) (newspaper not immune from liability to source after paper broke confidentiality agreement); City of Oak Creek v. Ah King, 436 N.W.2d 285 (Wis. 1989) (photographer has no First Amendment right of access to crash scene from which the public has been excluded); Stahl v. Oklahoma, 665 P.2d 839 (Okla. Crim. App. 1983) (journalists who accompanied nuclear power plant protestors guilty of criminal trespass).

Trespass is the illegal entry onto private property. If the owner or person in charge of private property orders a photographer to leave, the photographer should leave or be prepared to face a trespass charge. Photographers who accompany police onto private property are not necessarily immune from liability.

Twelve states have statutes that ban the surreptitious use of cameras in private places. See box on page 4. The statutes are described in the general law category of the state-by-state privacy law summary.

Camera operators should also be aware of federal and state laws that govern the taping of oral communications. The federal wiretap statute prohibits the interception of oral communications unless one party -- such as the journalist -- consents to the recording. 18 U.S.C. §§ 2510-2520. Some states go further, and bar the taping of oral communications unless all parties consent to the taping. See box on page 5. The all-party consent statutes are also noted in the general law category of the state summary.

Private Facts

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter is of a kind that:

(a) would be highly offensive to a reasonable person and

(b) is not of legitimate concern to the public.

Restatement (Second) of Torts, § 652D.

The private facts tort presents the disturbing scenario in which journalists may be liable for money damages for reporting the truth. The U.S. Supreme Court noted that in this particular privacy tort, "claims of privacy most directly confront the constitutional freedoms of speech and press." Cox Broadcasting
Corp. v. Cohn, 420 U.S. 469 (1975).

In several cases the Supreme Court has held that "where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order." Florida Star v. B.J.F., 491 U.S. 524, 541 (1989).

Although the Supreme Court has prevented states from punishing journalists who published legally obtained names of juvenile offenders and rape victims, the Court has not absolutely rejected the private facts tort in this context. Although crimes such as rape are newsworthy -- and newsworthiness is a defense to a private facts suit -- not all courts have agreed that the identity of a rape victim is newsworthy.

Absent special circumstances involving crime victims and witnesses, photographs of virtually anything visible in a public place do not give rise to actions for publication of private facts.

False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if:

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Restatement (Second) of Torts, § 652E.

A photograph or videotape by itself will rarely place a subject in a false light. Rather, the accompanying text, caption, or voice-over could be misleading and portray the person in a false context. However, an accurate depiction of a person in a publication the person finds offensive does not, in itself, state a false light claim.

The U.S. Supreme Court ruled in Time, Inc. v. Hill, 385 U.S. 374, 387-88 (1967), concerning a photo essay about a fictionalized play based on a real-life hostage drama, that the First Amendment bars recovery for "false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of falsity or in reckless disregard of the truth."

Subsequent Supreme Court decisions, however, left open the possibility that in cases involving private persons rather than public figures, states could permit false light recovery if plaintiffs merely proved negligence.

Although the facts that give rise to a false light claim may also support a defamation claim, injury to reputation is not required for a false light claim. The false light tort aims primarily to protect against emotional distress rather than to protect ones reputation. First Amendment concerns, and the similarity between the claims, have persuaded some states not to recognize the false light tort.

Misappropriation

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.

Restatement (Second) of Torts, § 652C

States often have detailed statutes that govern the right of publicity. These laws have two purposes: 1) to protect ordinary individuals from the mental anguish that may accompany the undesired commercial use of their name or image, and 2) to protect the property interest that celebrities develop in their identities.

Under these laws the use of a relevant picture to illustrate a newsworthy article will generally not lead to liability. The unauthorized use of a celebritys picture in an advertisement often will.[4]

However, the Supreme Court ruled that newsworthiness is not necessarily a defense to a misappropriation claim. In Zacchini v. Scripps-Howard Broadcasting Co, 433 U.S 562 (1977), the court ruled that a news broadcast showing the entire 15-second act of a "human cannonball" violated his right to publicity.

Defenses To Privacy Suits

Several defenses are available to photographers and news organizations accused of invasion of privacy.

If the subject of the photograph has no reasonable expectation of privacy, then no invasion of privacy is possible. Photographs taken in public places generally are not actionable. Photos of crimes, arrests and accidents usually are considered newsworthy and immune from privacy claims.

Public figures, who voluntarily expose themselves to scrutiny, waive much of their right to privacy.

Corporations generally cannot claim a right to privacy; unlike the defamation tort, the right to privacy concerns the personal "right to be left alone" rather than reputation. Heirs cannot file suit on behalf of deceased people, although some states make exceptions for misappropriation claims.

If a subject does have a reasonable expectation of privacy, consent to have photographs taken and published is a defense to an invasion of privacy action.

In deciding whether to take and publish a questionable photograph, journalists must consider many factors. The following pages survey the privacy law of the 50 states and the District of Columbia, with emphasis on cases involving photography. In many states the courts have not addressed or resolved questions about the scope of privacy law. Many cases turn on subtle distinctions of fact, and could be decided either way. When in doubt, you should consult an attorney or call the Reporters Committees toll-free legal assistance hotline: 1-800-336-4243.

End Notes

1 Even if a news organization arguably violates a subjects right to privacy, the subjects remedy usually will not include the ability to bar the publication of the picture. See CBS, Inc. v. Davis, 114 S.Ct. 912 (Blackmun, Circuit Justice 1994) (granting relief from injunction barring broadcast of surreptitious videotape of beef processing plant because of presumptive invalidity of prior restraints)

2 People also have a constitutional right to privacy that protects against invasions by the government. Journalists who act jointly with government officials could violate a persons constitutional privacy right. See, e.g., Ayeni v. CBS Inc., 848 F.Supp. 362 (E.D.N.Y. 1994)

3 Journalists conduct also may lead to other tort claims, such as trespass or the intentional infliction of emotional distress.

State Laws

Missouri

Missouri has recognized intrusion, false light, and misappropriation claims but has questioned the false light tort. Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475 (Mo. 1986).

Intrusion: Even though an enormously obese hospital patient granted an interview to a reporter and talked about her illness, she did not give the reporter permission to use her name or photograph, and when her name and photograph were published, she had grounds for an invasion of privacy suit. Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942).

An undercover television reporter who entered a hospitals alcohol treatment center by pretending to be an alcoholic did not commit intrusion against the hospital because corporations have no right of privacy. W.C.H. of Waverly v. Meredith Corp., 13 Med. L. Rptr. 1646 (W.D. Mo. 1986).

Private facts: Television footage of a person with his hands on top of a police car during an erroneous arrest did not disclose any private facts because the arrest was a matter of legitimate public interest, and the film was shot in a public place. Williams v. KCMO, 472 S.W.2d 1 (Mo. 1971).

A couple videotaped at a hospital function and identified as participants in an in vitro fertilization program stated a claim for publication of private facts. Y.G. v. Jewish Hospital of St. Louis, 1990 WL 99335 (Mo. Ct. App. July 12, 1990)

False light: A photograph taken during a sheriffs drug raid that showed a sign bearing the name of a Christmas-tree farm did not portray the farms owner in a false light, even though he was not the subject of the raid, and no drugs were found on his property. Police activities are a matter of public interest and cannot be the basis for a false light claim. The article accompanying the photo did not mention the landowners name, as it reported only the names of people involved in the raid. Hagler v. Democrat-News, 699 S.W.2d 96 (Mo. Ct. App. 1985).

Illinois

Illinois generally recognizes the four privacy torts, although lower courts have disagreed about intrusion. See Melvin v. Burling, 490 N.E.2d 1011 (Ill. App. Ct. 1986) (recognizing intrusion); Kelly v. Franco, 391 N.E.2d 54 (Ill. App. Ct. 1979) (not recognizing intrusion).

Intrusion: ootage that was shot from behind a two-way mirror of an undercover police officer at a massage parlor did not invade the officers privacy because his on-duty conduct was a legitimate area of public interest. Cassidy v. ABC, 377 N.E.2d 126 (Ill. App. Ct. 1978).

Filming a tattooed prisoner, stripped to his gym shorts, in an exercise cage may have invaded his privacy if the exercise cage were in a secluded area. Huskey v. NBC, 632 F. Supp. 1282 (N.D. Ill. 1986).

A prisoners right to privacy may have been invaded when he was filmed in his cell without his consent. Smith v. Fairman, 98 F.R.D. 445 (C.D. Ill. 1982).

Private facts: A newspapers publication of photographs of a womans son as he was treated for a gunshot wound, and as he appeared after his death from that wound, supported a private facts claim brought by the woman. The sons death may have been a personal, rather than a public, event. In addition, the photographs may not have been necessary to convey otherwise newsworthy incidents of gang violence. The photographs also may have been highly offensive to a reasonable person. No private facts claim on the sons behalf could survive, however, because a dead persons privacy cannot be invaded. Green v. Chicago Tribune, 675 N.E.2d 249 (Ill. App. Ct. 1996).

False light: A television stations use of a judges name and photograph in its report about an investigation into alleged judicial corruption might portray the judge in a false light. Berkos v. NBC, 515 N.E.2d 668 (Ill. App. Ct. 1987), cert. denied, 522 N.E.2d 1241 (Ill. 1988).

The unauthorized publication by Hustler magazine of nude photographs sold to Playboy portrayed the woman in a false light because Hustler has a racier context and because a caption implied that she was a lesbian. Douglass v. Hustler, 769 F.2d 1128 (7th Cir. 1985), cert. denied, 475 U.S. 1094 (1986).

A hospital security guard could not claim false light invasion of privacy against a television station that taped a guard arresting the camera operator. Hunter v. Cook County, 21 Med. L. Rptr. 1920 (N.D. Ill. 1993).

Misappropriation: The use of a photograph from a newscast as a "teaser" prior to the broadcast was not misappropriation. Berkos v. NBC, 515 N.E.2d 668 (Ill. App. Ct. 1987), cert. denied, 522 N.E.2d 1241 (Ill. 1988).

9 Keys to Avoiding Invasion of Privacy Suits

Jesse Jackson was unlikely to prevail on a misappropriation claim concerning the sale of videotape of a television networks reports on the 1988 Democratic The best hedge against invasion of privacy suits is knowledge of the law in the jurisdiction in which the photograph or videotape is shot and published or broadcast. However, the line between journalism that is protected by the First Amendment and state law, and journalism that creates liability for invasion of privacy, is rarely clear.

Jesse Jackson was unlikely to prevail on a misappropriation claim concerning the sale of videotape of a television networks reports on the 1988 Democratic Before taking or publishing a questionable picture, a photojournalist might want to consider several factors:

• Generally, what can be seen from public view can be photographed without legal repercussions. Photographs taken in private places require consent.
• Even if people are photographed in public, beware of the context in which the picture is placed (such as an innocuous photo of recognizable teen-agers in a story about the rise of teen violence). Use caution when utilizing file footage or photographs to illustrate negative stories. Special effects can be used to render the subjects unidentifiable.
• If consent is required, it must be obtained from someone who can validly give it. For example, permission from a child or mentally handicapped person may not be valid, and a tenant may not be authorized to permit photographs of parts of the building not rented by the tenant.
• Consent to enter a home may not be consent to photograph it. Consent exceeded can be the same as no consent at all.
• Although oral consent may protect the press from liability for invasion of privacy, written consent is more likely to foreclose the possibility of a lawsuit. However, a subjects subsequent withdrawal of consent does not bar the publication of the photograph. It simply means that the journalist may not assert consent as a defense if the subject later files suit. In some states the commercial use of a photograph requires prior written consent.
• Permission from a police department to accompany officers who legally enter private property may not immunize journalists from invasion of privacy suits. In most states, authorities may deny photographers access to crime scenes and disaster areas.
• Public officials and public figures, and people who become involved in events of public interest, have less right to privacy than do private persons.
• In some states, using hidden cameras, or audiotaping people without their consent, may invite criminal or civil penalties.
• A photograph may intrude into a persons seclusion without being published. Intrusion can occur as soon as the image is taken.

Privacy laws vary widely from state to state, and the law often is unclear within a given state. If in doubt about a situation, a call to a media lawyer or to the Reporters Committee may help you assess the risk.

New digital camera? Know how, where you can use it

Digital cameras were one of the hot gifts these holidays — the first one for some people, an upgrade for others. Cell-phone cameras are everywhere too, and sites like Flickr and Buzznet — not to mention photoblogs — make it easy for anyone to share the zillions of photos they're taking.

With all these cameras snapping around us, I started to wonder about the laws regarding using them. Where can you shoot? What can you shoot?

A blogger I know shot a picture in an office building. One of the tenants had boxes of medical records sitting around in an unlocked office, visible from the hall. He published a picture of the boxes, which started a little brouhaha: He didn't have permission from the building's landlord, someone said, so he wasn't allowed to take or publish the photos.

That turns out not to be the case.

What I discovered is that a lot of people have ideas — often very clear ones — of what is legal and what isn't, based on anything from common sense to wishful thinking to "I always heard…"

Trouble is, they aren't always right. If you've got a digital camera and like to shoot in public, it pays to know the real deal.

So I went looking for it. I checked with the Reporters Committee for Freedom of the Press and found its Photographers' Guide to Privacy.

The Missouri Bar has a terrific Journalists' Right of Privacy Primer by attorney Mark Sableman.

Bert P. Krages, an attorney in Portland, Ore., and author of the Legal Handbook for Photographers, has a short but excellent PDF document called The Photographer's Right.

I also had e-mail conversations with both Mssrs. Sableman and Krages (who were both careful to point out that they were only speaking in general terms, and not offering legal advice).

Finally, I got some background from the American Law Institute's A Concise Restatement of Torts on the Harvard Law website.

Of course, I'm not a lawyer; in this case I'm a researcher. But lemme tell you: All these sources jibed, which I take to be a good sign. Just don't take this as legal advice; it's one columnist's researched understanding of the law.

If you can see it, you can shoot it

Let's get the easy stuff out of the way. Aside from sensitive government buildings (e.g., military bases), if you're on public property you can photograph anything you like, including private property. There are some limits — using a zoom lens to shoot someone who has a reasonable expectation of privacy isn't covered — but no one can come charging out of a business and tell you not to take photos of the building, period.

Further, they cannot demand your camera or your digital media or film. Well, they can demand it, but you are under no obligation to give it to them. In fact, only an officer of the law or court can take it from you, and then only with a court order. And if they try or threaten you? They can be charged with theft or coercion, and you may even have civil recourse. Cool. (For details, see "The Photographer's Right.")

It gets better.

You can take photos any place that's open to the public, whether or not it's private property. A mall, for example, is open to the public. So are most office buildings (at least the lobbies). You don't need permission; if you have permission to enter, you have permission to shoot.

In fact, there are very few limits to what you're allowed to photograph. Separately, there are few limits to what you're allowed to publish. And the fact that they're separate issues — shooting and publishing — is important. We'll get to that in a moment.

You can take any photo that does not intrude upon or invade the privacy of a person, if that person has a reasonable expectation of privacy. Someone walking in a mall or on the street? Fair game. Someone standing in a corner, looking at his new Prozac prescription? No. Using a long lens to shoot someone in an apartment? No.

Note that the limits have nothing to do with where you are when you take the shots; it's all about the subject's expectation of privacy. You can be on private property (a mall or office-building lobby), [b]or even be trespassing and still legally take pictures.[/b] Whether you can be someplace and whether you can take pictures are two completely separate issues.

Chances are you can publish it

Publishing photos has some different restraints, although they're civil, not criminal. Break one of these "rules" and, while you won't go to jail, you could find yourself on the short end of a lawsuit. (Although, according to the Reporters Committee for Freedom of the Press, "the subject's remedy usually will not include the ability to bar the publication of the picture.")

Revealing private facts about someone is a no-no. As the American Law Institute put it, "One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that A) would be highly offensive to a reasonable person, and B) is not of legitimate concern to the public."

Here the private property issue comes a bit more into play. Publishing a recognizable photo of someone at an AA meeting could be a problem, even if that meeting is open to the public. (An elected official, perhaps, but not of Joe Citizen.)

You also can find yourself in civil court if you publish a shot that places a person in a false light. That might be more of an issue with the caption than with the photo; running a shot of the mayor and his daughter labeled "Mayor meets with porn star" could land you in hot water. (Assuming his daughter isn't a porn star.)

Finally, you can't use someone's likeness for a purely commercial purpose — using a photo of someone in an ad, for example. That isn't to say you can't publish a photo in a commercial environment, such as a newspaper or a blog that accepts ads. If the photo is being used in a news or artistic sense as opposed to a commercial one you're OK.

Risk factors

The fact that taking a photo and publishing it are separate things might go against some folks' common sense.

Let's say you're banned by the local mall for taking photos there, but you go back anyway and take more. Now you're trespassing. But unless the photos you take violate someone's expectation of privacy, your taking photos isn't illegal — only being there.

That said, if you're arrested and convicted, a judge might use the fact that you were taking photos to increase the penalty, but shooting on private property isn't a crime in and of itself. As one lawyer told me, "I don't see why the act of trespass would turn something that occurs during the trespass into a tort if it wasn't one already."

There are some other risks to taking and publishing 'problematic' photos. But, as you'll see, they're easy to avoid.

Trespassing is an obvious problem. If you're not supposed to be someplace — you see a sign or you're told by the property owner, for example — you can get arrested. Sure, you might be able to publish the photos you take, but Web access from jail is limited. (Trespassing is almost always a misdemeanor, by the way.)

You might be charged with your state's variation of intrusion — using technology (e.g., a long lens, hidden camera, or parabolic microphone) — to access a place where the subject has an expectation of privacy.

Beyond trespass, the major risks you run are civil, not criminal. You can lose an invasion of privacy lawsuit if your photographs reveal private facts about a person that are offensive and not newsworthy when the person had a reasonable expectation of privacy. Ditto if they place the person in a false light, or inappropriately use the specific person's image for commercial purposes, e.g., stating that the mayor endorses a product by publishing a photo of him using it.

All of this should be good news for amateur and professional shutterbugs. Carry your camera, shoot to your heart's content, and know your rights — and your risks.

Andrew Kantor is a technology writer, pundit, and know-it-all who covers technology for the Roanoke Times. He's also a former editor for PC Magazine and Internet World. Read more of his work at kantor.com. His column appears Fridays on USATODAY.com.