No bright line California precedent cases exist to use to defend one’s photography against claims of invasion of privacy. Note Bert Krages’ book about photographers rights includes very few case law citations to back up his statements. In the past, the public did not generally believe they could object to photography. In fact, much of the public enjoyed being photographed. That has changed. With the advent of some many publicized cases of celebrities prosecuting commercial use of their likeness, everyone has become a celebrity and lawyer in their own mind and believe that they too have a right to protect their likeness even from non-trade use of the likeness!

In fact, the appellate Judges in the unpublished Smith v. Hance case, (COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, D047471) stated that since cameras did not exist when the constitution was written, the constitution obviously did not grant a right to photograph. Smith was photographing Hance while standing on a public street.

California’s Civil Code of Procedure 527.6 is a very low-risk way for a subject of photography to harass and restrain a photographer. This code allows a plaintiff to request a Civil Harassment Restraining Order. There is no statute of limitations for incidents claimed as harassing, no right of jury trial, and since it is a summary procedure, the judge can make up his mind in minutes if he so desires.

If the plaintiff connects with the Judge, the photographer can spend many tens of thousands on trial and appeal court decisions. Think a mother and child complaining that the photographer bothered them.

Below is a scenario under appeal in California:

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Photography is a weapon?

A photojournalist for whom “pictures are words”

necessary for optimum communication, overtly created images of the plaintiffs to document, record, and communicate the events of property trespass dispute, code violations, neighbor to neighbor dispute, the plaintiff’s intrusion at a gay civil rights rally, and other events of dispute between the parties which has continued for a period of 5 years.

The plaintiffs complain that the photography in and

of itself were acts of civil harassment. The Judge’s order of a civil harassment complaint against the photojournalist mandates him, the defendant, to act to deliver to the local Sheriff Department all copies of images which portray the prevailing plaintiffs of the action.

In effect, the civil harassment order mandates that

the photojournalist abandon his First Amendment Rights and provide evidence that could be used to incriminate him.

The plaintiffs demonstrated at trial that they,

while not being serious photojournalists, also used tactical photography in preparation of petitition of the government, however, plaintiff’s photography was very often covertly obtained.

The photojournalist is also enjoined from any future

photography of the plaintiffs whether or not they attempt to perpetrate additional property violations or misdemeanors.

The rationale for this mandate and injunction includes,

and we quote, “You [the photojournalist] use the camera as a weapon”.

The judge did not mean that the photojournalist swung

the camera and tripod so as to physically assault the plaintiff. What the judge did mean by adopting this statement from the testimony of the plaintiff apparently is that the camera threatens to disempower an individual on the order that a gun pointed at the subject disables the rightful freewill of the subject. The camera represents the potential to capture its subject in the raw form of the subject with no opportunity for the subject to manipulate, censor, or control the resultant image captured. (Mrs. Plaintiff’s court testimony was extreme – the camera was physically demonstrated as an extension of the penis.)

Brandishing a camera is the new crime in germination in

this case. Smith v Hance, the appeal decision of a similar California case found that since cameras did not exist when the Constitution was written, there is no constitutional right to use a camera. However, said decision was not published for precedent so the rules in Califonia remain unclear.

If the Judge’s existing orders against the

photojournalist are allowed to stand, the freedom of homeowners, and at large citizens, to use video cameras as legitimate tools preparatory to petition of the government to document and communicate grievances of a continuing or recurring nature will be further chilled and subject to increasing likelihood of needless suppression and prior restraint by the State of California. We believe such chilling is detrimintal to good public policy as it limits the public ability to capture and publish the full truths of our condition.

Each media of communication is particlarly efficient

and apt at communicating particular classes of thoughts and ideas. The produce of cameras – pictures – are uniquely powerful and viscerally direct in ability to communicate certain thoughts, ideas, and emotions of the human condition. State imposed limitation and control of pictures, and the photographer whether amatuer or paid press members, necessarily limits not only the range of human expression but the range of human existance and self awareness – the maximum truth and understanding can not be communicated when the media is of a limited palette. In order to justify such a limitation, the State must show an overriding public need.

In this case, the State has not only failed to meet

this standard, it has not even attempted to consider the need of the public to petition the government with the most powerful tools available, and, the value thereof. The Judge certainly failed to make findings of fact and failed to explain his reasoning in balancing these seemingly competing interests. He simply assumed that each individual has a right to censor images which portray them to the government.

For this reason we believe this case should be taken

to the appellante level so that the interest of the public to permit use of the best tools of communication for a particular topic versus the interests of the individual to manipulate and control their image can be properly weighed against each other and resolved.

Separate from the large public policy issue are simple errors of the trial court. Errors of logic, of misquoting the photojournalist, and most egregiously of simply fabricating facts to fit a simple model the court created to explain a choice few events of the over all 5 year period.

Photographers can photograph, even on private property where the public gathers: golf courses, malls, parks.

I am not sure about the public places rule, but I am fairly sure of this. So you could stand fifteen feet away from the property line and take as many photos as you want.

This is why you see all the real estate photrography. They can take a photo so long as they are not on the property.

But this isn’t over. I intend to return to the scene of the alleged crime and take more images. I also want to make fellow photographers aware of their rights. As I said, NYC attempted to require permits to shoot in the subway, then backed down when the public outcry became too loud. I think collectively, photographers need to speak up against unjust restrictions of this sort.

Rest assured, this isn’t the last posting I intend to write on this subject.

Thanks for your comment, best wishes for a Happy Christmas.

— Tom

And you probably want to ask a lawyer friend for some advice on the matter!

Very interesting to learn,

Pam Hoffman

http://seminarlist.blogspot.com