Photography, Filming, and Audio Recording in Public Places

From E-Learning Faculty Modules


Contents

Module Summary

Subject matter experts (SMEs) often go into public spaces to capture images or film for their various projects. These spaces may be any locations where there may be subjects of interest. There may be buildings of interest or public spaces or people or animals. Some public spaces offer backdrops for dramas. No matter what the context, it is important to follow some basic guidelines when capturing imagery and action recordings in public spaces. This module describes the basic rules of recording in public spaces. This also touches on methods commonly used in public recordings as well as strategies for redaction, if needed. Finally, this also addresses some basics of media releases.

Takeaways

Learners will...

  • Review the general rules for photography, filming, and audio recording in public places
  • Review some of the common strategies used when photographing, filming, and audio recording in public places. Review some strategies for photography and filming discreetly in public places without revealing people’s identities
  • Study the basic elements of a media release. Review when media releases should be used.
  • Study the importance of redaction in cases when filming in a public place (in cases when proper image acquisition and rights releases were not possible)? What is redaction of sound files?
  • Decide when it will be important to record in public spaces

Module Pretest

1. What are the general rules for photography, filming, and audio recording in public places?

2. What are some of the common strategies used when photographing, filming, and audio-recording in public places?

3. What sorts of permissions are needed for recording on private property? What are the basic elements of a media release? When should media releases be used?

4. What is redaction of imagery? of video? of sound recordings?

5. When does it generally make sense to record imagery, video, and sound recordings in public places?

Main Contents

The following guidelines are presented assuming that the images, film, and sounds are used for academic (non-commercial) purposes by a subject matter expert (SME) at an accredited university. (Disclaimer: This is not provided in lieu of any legal consultation. This is also not any legal advisement but general observations.)


1. General Rules for Photography, Filming, and Audio Recording in Public Places

The U.S. tends to have fairly generous laws in terms of photography, videotaping, and audio-recording in public places. After all, it is said that a person on average is captured by over a dozen cameras in the course of a day. There are closed circuit television captures related to various businesses. The Department of Transportation has a number of cameras to promote traffic handling. Robotic Google Street View™ vehicles drive along streets and capture street-side images. The regular person on the street has a smart phone with recording capabilities—for still imagery, filming, and audio recording.

What are the basic rules? Basically, people are allowed to digitally record in public spaces as long as they are physically in public spaces. They cannot trespass on private property to record. They can, however, record private property if they are in public space—as long as they are not using intrusive technologies like telescopic / telephoto lenses. (An average camera lens is acceptable.) If a private property is identifiable, then the photographer or videographer should acquire permission from the property owner, based on the American Society of Media Photographers, Inc., guidelines.

Generally, people do not have privacy rights in public spaces. They can be photographed without their consent. In public spaces, people do not have a reasonable expectation of privacy (which they can expect in their own private residences). However, their likeness may not be used for commercial purposes without their express permission.

Post 9/11, it is inadvisable to record in places with possible security interests. This would include sensitive buildings, transportation hubs, and any other spaces where there may be security sensitivities. If there are explicit signs against any sort of recording, then abide by those. Some jurisdictions have laws constraining photography and filming in a health care facility. In this light, it makes sense to carry current identification while recording, in case one is asked. Further, it will help to have clear rationales for the photography, filming, and audio recording. If there are substitute sources for the imagery, film, or audio, it may be easier to go with that.

Different jurisdictions have different laws and common understandings. It helps to be aware of that context. For example, in some states, two-party consent is required before audio taping may be done. This means that an individual cannot secretly / surreptitiously audio-tape someone on a phone line or someone that they’re meeting face-to-face. If there is to be wiretapping, there often has to be the permission of a legally seated judge. Without that permission, anyone secretly recording another in a two-party consent state would be breaking state laws. In a “one-party consent” state, only one party has to know that the audiotaping is occurring via phone Telephone Recording Laws. The other may be recorded without his or her awareness.


2. Common Strategies for Recording in Public Places

Those who record in public places generally try to control the space. In this sense, it helps to have ways to block off the sidewalk or sections of town where you will be filming or conducting photography. For many cities, special permissions have to be attained first before any such disruption may be made.

A more common scenario involves a quick setup, a quick shoot, and then moving on. In this case, it helps to have people politely requesting others to avoid the photography or filming areas.

As with all photography, videography, and audio sound recording, it helps to check all equipment multiple times to make sure that everything is working and set up with the correct settings. There should be fresh batteries and memory media (memory cards, mini-DV tapes) as back-up.

The logistics of capturing various scenes around a public location require most people to capture b-roll scene details or supplementary scene footage B-roll. For film to appear coherent, it helps to have the light all of a type. So if an initial scene was shot at high noon, and there needs to be additional footage in that same scene, generally, it helps to have similar footage shot at high noon (or when the light is similar).

If conducting “person on the street” interviews, it is important to have the interview subject sign a release and also self-identify in terms of their name, name pronunciation, and the proper spelling. That should be captured on tape for production and post-production work.


3. Strategies for Discreet Photography and Filming (without Capturing People’s Identities)

General photography and video captures should be achieved without intruding on people’s privacy or dignity, even if they are in public spaces. If you are sufficiently close to an individual for clear facial recognition (or if they are wearing name badges), you should get explicit permission to capture their image. (With facial recognition technologies, any face-on image of a person may be identifiable as it is.) If a person’s identity is not needed for the photo, film, or audio recording, then it’s just as well not to use their personally identifiable information (PII).

Further, it is important to avoid defaming a person, an organization, or a business. It is important not to show people in a negative light. For example, in news stories about health issues—like obesity or disease—people’s faces are invariably “glassed out” or anonymized. Media laws define the importance of protecting reputations to the point of avoiding even negative inferences. Sometimes, professional media organizations will purchase images and film outright instead of incurring potential liabilities in doing their own captures.

There are ways to capture a sense of people without unique identifiers. Photographing and filming from a distance is one strategy. Another is to use an aerial view from a building top (with the permission of the building owner).


4. Permissions for Private Spaces and Basic Elements of a Media Release

Generally, some digital recording is allowable in private spaces that are generally open to the general public. These would include malls and restaurants. However, if there are signs against photography and videotaping, then that should be respected. (Some private malls open to the public may be close to sensitive government buildings, and to protect government employees, the security teams in such locations will ask individuals not to take photographs. If an individual does not comply, he or she may be asked to leave the premises or may even be arrested for criminal trespass.)

Entry onto other private property requires the permission of the property owner. It helps to bring documentation of what you want to do. Some property owners will expect to be able to “vet” the imagery or video captures before anything may be used. If that is the agreement made with the property owner, then it’s a good idea to follow through on the agreement. Most professional media organizations do not allow the rights of revision and editing to private property owners.

A “media release” is commonly required before an individual may be photographed or filmed or audio-recorded. As a matter of habit, those in commercial mass media request these permissions prior to any recording. The individual has to be of age to sign over rights, or his / her guardian will have to allow the digital recording. An individual has to be properly informed of his / her legal rights, the actual purpose of the recording, all possible uses of the recording, and the rights that they are signing over. If they retain any rights to the media, that should be part of the media release as well. (Usually, individuals do not retain any rights when they participate in a photo session or film project.)

It may be a good idea to run a media release by legal counsel to make sure that every concern is addressed and that legal requirements have been met.

Anything legally captured for higher education is for that purpose alone. If the photographer has a change of heart and wants to use the materials for commercial purposes, then further rights have to be attained for that specific purpose. A photographer or videographer cannot just change the terms of the agreement without re-negotiating with the individuals involved.


5. Photo, Film, and Audio Redaction

If you have already captured digital contents and realize that you’ve not followed the general laws, then you may wish to withdraw the contents from use and to destroy all extant copies. If it’s possible for you to retroactively attain permissions, that is another possible option.

Yet another option is to “redact” information from the media. This may include covering over or blurring people’s faces or other identifiers. Any sensitive information should be redacted.

Examples

The following are some real-world examples.

A global health professional wanted to create a series of slideshows to illustrate her world travels combating a deadly human disease. She had photos that she’d taken of herself and colleagues in their work. She acquired permissions to use those images. However, some of the photos included people who had since died (no privacy rights per se after death). She had no way to acquire permissions from the families abroad. In that context, she used redaction to de-identify the individuals.

A professional print photographer needed to illustrate an article on running. In order to capture the images, he went to a local park, hung a camera around his neck, and shot images of people’s legs running by. The article went to press. No one’s identity was given away in the photos. Many runners did not even realize that their images had been captured in public space.

An instructional design project required the use of photos of an island in the middle of a road. A photographer went out to capture the images, but avoiding photographing people except from a far distance.

A veterinarian needed to capture photos of cows at an auction or sale barn. She went to the property with her I.D., media releases, and a high-end digital camera. After walking through the site, she acquired permission from the site owner, took photos with the written permission (using a formal media release) of the various cattle owners and purchasers and truckers, showed all the imagery to the site owner, and then used the photos in various slideshows and videos for an online course.

How To

Planning an Off-Site Shoot

The work of planning an off-site shoot, for a subject matter expert (SME), is much less complex than for a full professional videographer. Some questions to consider include the following:

  • What sorts of images and film does the individual want to capture? (Is there a shot list? Is there a storyboard of the filming?) What sorts of b-roll film will be needed?
  • What equipment, memory devices, batteries, and such will be needed?
  • What props will be necessary?
  • What individuals will be needed to achieve the work?
  • What media releases are needed?

Possible Pitfalls

Capturing imagery, film, and audio is almost always expensive in terms of time and resources. There is not only the planning work, but the actual captures, and then the post-production work. To this end, it’s important that going off-site is done only when it’s necessary.

Such captures require a fairly complex skill set with a variety of equipment and post-production software capabilities. The capturing of sound in ambient spaces is difficult, with many intervening noises that people tend to tune-out in a regular situation. Such work requires a fair amount of time for quality work.

Going off-site does enable access to a much wider range of scenes and may enable a customized look-and-feel. The digital contents, if the captured properly, may be used for multiple projects.

Federal, state, and local laws all affect the legality of capturing images, film, and audio in public places. Further, people’s expectations of privacy may affect the public space and so should inform the SME’s work.

Module Post-Test

1. What are the general rules for photography, filming, and audio recording in public places?

2. What are some of the common strategies used when photographing, filming, and audio-recording in public places?

3. What sorts of permissions are needed for recording on private property? What are the basic elements of a media release? When should media releases be used?

4. What is redaction of imagery? of video? of sound recordings?

5. When does it generally make sense to record imagery, video, and sound recordings in public places?

References

Photography and the Law

Extra Resources

Expectation of Privacy

"Know your Rights: Photographers," ACLU

Kansas Legislature / Statute

21-6101 Article 61: Crimes Involving Violations of Personal Rights / Breach of Privacy