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11-22-2007, 07:14 AM   #31
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QuoteOriginally posted by JCSullivan Quote
Thanks for your insight and links Mike. I've not read the articles yet and like you, I am not a lawyer or paralegal but, if the street running thru the mall was leased to the mall owners, doesn't it then become "private" until such time as the land reverts back to the City/County?

Off to read all the excellent links. Thanks
The Montgomery County, MD Attorney provided the "last word" on the situation in Silver Spring. Of course the developer could have sued the county and taken it to court for a precedence setting decision but they evidently (and wisely) decided they were likely to lose. Photographers now have fairly unecumbered access to Downtown Silver Spring although I imagine the developer grinds his teeth every time he sees someone with a camera. LOL

Anyway, one of the statements the county attorney made in his opinion was that...

"The county retained an easement over specific portions of the leased property for vehicular and pedestrian use."

Thus the developer was oversteping the bounds of his lease when he began restricting photography. The basic theme of the opinion was that the street and sidewalk in question had been public property prior to the redevelopment and their appearance did not change in any apparent way. There was a lot of supporting precedence in the opinion, but the easement was the basic reason that the developer couldnt control or restrict photography.

Now, for something completely different... (my apologies to Monty Python)

We have a similar appearing outdoor "mall" here in Reston, VA. It is called Reston Town Center. Security guards routinely stop anyone with a DSLR and ask them for their "photography permit". If you don't have a permit you are asked to stop shooting and/or leave. No one has evidently resisted to the point of arrest. They don't seem to be worried about anyone with a PnS or cell phone camera so I believe their intent is to control commercially viable images. About the only time you can shoot there with impunity is during public events such as concerts, festivals or the annual bicycle race.

The difference between the 2 "malls" is that one (Downtown Silver Spring) was created on public property and leased to the developer (with easements for public access) and the other (Reston Town Center) was created entirely from the outset on private property. Thus, unlike the area in Silver Spring, MD it IS private property. The "public" has only as much access as the property owner choses to grant. For all intents and purposes the Reston Town Center is the equivelent of an indoor mall with the exception that is is deceptively public appearing. I believe you could possibly win a legal challenge to their photography restrictions. There are NO signs indicating that the streets and sidewalks are private property, nor are there any obvious boundaries or dividing lines between RTC and the surrounding public spaces. However, I have neither the energy or the resources to challenge it so just live with it in this case. There's not really that much there to shoot anyway.

So, why did I even bring this up?

I believe it is important to point out that you must be careful even when you are in a place that appears to be "public". This can relate specifically to the OPs question. If you are on a marked public street or road (State Rd 236) you can assume with a reasonable degree of certainty that you are on public property. If however you are on a back road or even an obscure urban alley you may indeed be on private property, even if it's not marked.

If someone challenges you, you have to decide for yourself just how far you want to take your insistance upon exercising your free speech rights. At the very least, if you are challenged by a private security guard, insist upon seeing the property manager/owner and politely ask for proof that the property is actually "private". If it is, and the property manager/owner still asks you to leave, do so quietly. After you leave, do what you can to notify other photographers about the photography restrictions...

Mike

Now, a disclaimer... I am not a lawyer, nor do I play one on TV... The above ramblings are my personal opinions only and should not be construed to be either binding legal or even sane advice... They are simply and solely based upon my reading of numerous laws and policies.


Last edited by MRRiley; 11-22-2007 at 09:04 AM. Reason: typos
11-22-2007, 10:47 AM   #32
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QuoteOriginally posted by MRRiley Quote
Anyway, one of the statements the county attorney made in his opinion was that...

"The county retained an easement over specific portions of the leased property for vehicular and pedestrian use."
I saw the part you quote Mike, but I went a little further and saw this:

QuoteQuote:
The Developer retained the right to close any one or all three of those spaces to public vehicular, but not pedestrian, traffic from time to time, as well as the right to “impose and enforce such reasonable rules and regulations as [the Developer] deems necessary to maintain order and to promote the safety, security and economic success of the Downtown Silver Spring Project.”
Now, I know this particular "battle" is over and done with but, I'm sure the Developer could have had a feast-day with the term "security".

In any case, well done for the Administration and the individuals who decided to take this forward. I mean, its absurd to go as far as stopping a photographer - what damage is s/he doing!

The links were great, still trying to find time to read the comments on the Arlington area article.

Bottom line is, authorities especially the ones in uniform have way too much power and they DO ABUSE it (vide recent RCMP tasering of passenger TWICE and ended up dead. But that's a different subject).
11-22-2007, 11:43 AM   #33
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QuoteOriginally posted by JCSullivan Quote
1. Maybe we can have Admin create a sticky with links to sites that show or discuss the Rights of the Photographer, listed by country or region and then we can refer people there.
Good idea - if you haven't done so already, why don't you suggest it? It really ought to be a closed thread, no discussion, just links submitted, vetted, and posted by an admin. (Well, that's what I think, anyway! ) It's your idea, and a good one, so I leave it to you to put it forward.

Julie
11-22-2007, 12:45 PM   #34
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QuoteOriginally posted by Arpe Quote
You are from somewhere in New Zealand well done, it's smaller than most of your states!
I wasn't going to weigh in here, but this comment piqued my curiosity.

Your posting made me think of when I live in Switzerland as an exchange student and the Swiss would complain to us about how Americans knew so little about Switzerland - only that they made watches, clocks, and swiss army knives, had mountains and skiing and the Matterhorn, were neutral, made excellent cheese and chocolate, were known for their banks, etc. etc. I would ask what they knew about Oregon. With very few exceptions, they knew nothing, despite the fact that Oregon area-wise is around 6 times the size of Switzerland and had at that time half the population of Switzerland.

So, your comment about NZ being smaller than most states made me wonder, since I didn't think it could be. I was right - if it were a state in the US, it would knock OR (that would be Oregon) down to 10th place from 9th (NZ = ~103.7K square miles; OR = ~98.5K sm). CO (Colorado) is 9th at ~104K. Population-wise, NZ is right in the middle of the pack - as a state, you'd be 26th, behind LA (Louisiana) and above KY (Kentucky). You are "smaller" in population, but just barely, than half the 50 states.

11-22-2007, 12:46 PM   #35
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Thanks Julie. Still, I don't mind good healthy discussion especially in regards to stories like Mike listed above - they're a good read.

I'll make suggestion elsewhere.
11-22-2007, 12:57 PM   #36
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Maybe Adam would be open to a new "Off Topic Forum" called "Legal & Business Issues" to cover discussions such as this? A very firm disclaimer would naturally be required, as a warning not to take any advice as binding without contacting an actual attorney. It would be a natural place to discuss privacy issues as well as copyright, model releases and the like...
11-22-2007, 04:58 PM   #37
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QuoteOriginally posted by betsypdx Quote
You are "smaller" in population, but just barely, than half the 50 states.
Of course that's what I was referring to (Phew - just made it into the "most" catgory).
Interesting, I wouldn't have thought our size, being land area or population, would have come so high up that list.
11-24-2007, 05:40 PM   #38
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i have been detained in the underground train system in melbourne, about 2months ago, for shooting the passing trains coming through the platforms.. i was questioned about terrorist activity and all sorts of rediculous things.The police officer was quite nasty, so naturally i got defensive and probably made the situation alot worse than it should have been, oops :P
i was actually quite offended, but at the same time, appreciative that they are serious about anti-terrorism procedures.
i am a lot more discreet when i take photos in the underground now eerrr. i mean, i dont take anymore photos..

11-26-2007, 09:10 PM   #39
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let's go back to the candy store with a posted sign.

Perhaps, and this is like many craft vendors, they don't want people to photograph thier work, they want you to buy it.
11-27-2007, 08:50 AM   #40
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QuoteOriginally posted by Lowell Goudge Quote
let's go back to the candy store with a posted sign.

Perhaps, and this is like many craft vendors, they don't want people to photograph thier work, they want you to buy it.
That's what I figured, and I have no problem with their sign. They don't want a bunch of people coming in and obstructing traffic taking pictures, but not buying anything, or bothering the occasional celebrity who turns up. I entirely understand and respect their rules.

What becomes unclear is how their rules affect a photographer on the sidewalk outside. It's a bit of a landmark store - very colourful (with sandwich boards on the sidewalk that the city has recently declared oversize, and must go) with ever-changing slogans painted on the windows. I'm pretty certain that if you stopped on the sidewalk and took a picture of the entire store, or the front window, you'd be fine. But what about taking a photo through the window? You're clearly then taking a photo of the interior of the store. At the same time, though, you're on public property. If you were using a big lens to take a photograph of someone in their home, you'd be nailed for invasion of privacy, no question. But a store? You can go into the store (when it's open), just not take photos. Their products are clearly on display, to entice customers in, while the private citizen in their home is probably taking some reasonable precautions to not be on display.

Photographing the store interior from the sidewalk would enrage the store owner, but I suspect that there would be absolutely nothing he/she could do about it legally. The truth of the matter is, I'm sure the answer is somewhere in the excellent resources that have been suggested so far, but I haven't the stomach to read through all the long-winded discussion when it's easier for me to just go photograph something else!

Julie
11-27-2007, 09:26 AM   #41
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QuoteOriginally posted by foxglove Quote
The truth of the matter is, I'm sure the answer is somewhere in the excellent resources that have been suggested so far, but I haven't the stomach to read through all the long-winded discussion when it's easier for me to just go photograph something else!

Julie
Indeed. I feel the same way. And in fact it is the reason I've chosen to forgo street photography. I'm not up to arguing, being threatened, being rejected... just not how I want to spend my time. Mushroom and landscapes generally don't object to my photographing them. It's a sad sign of our times but litigation appears to be the rule of the day.
11-28-2007, 12:50 AM   #42
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not an issue in Washington State USA

QuoteOriginally posted by foxglove Quote
What becomes unclear is how their rules affect a photographer on the sidewalk outside. It's a bit of a landmark store - very colourful (with sandwich boards on the sidewalk that the city has recently declared oversize, and must go) with ever-changing slogans painted on the windows. I'm pretty certain that if you stopped on the sidewalk and took a picture of the entire store, or the front window, you'd be fine. But what about taking a photo through the window? You're clearly then taking a photo of the interior of the store. At the same time, though, you're on public property. If you were using a big lens to take a photograph of someone in their home, you'd be nailed for invasion of privacy, no question. But a store? You can go into the store (when it's open), just not take photos. Their products are clearly on display, to entice customers in, while the private citizen in their home is probably taking some reasonable precautions to not be on display.

Photographing the store interior from the sidewalk would enrage the store owner, but I suspect that there would be absolutely nothing he/she could do about it legally. The truth of the matter is, I'm sure the answer is somewhere in the excellent resources that have been suggested so far, but I haven't the stomach to read through all the long-winded discussion when it's easier for me to just go photograph something else!

Julie
Quote from Washington State ruling:
"Filming a pharmacy interior from outside, through a window, was protected because the film was shot from a place open to the public. Mark v. KING Broadcasting Co., 618 P.2d 512 (Wash. App. 1980), affd, 635 P.2d 1081 (Wash. 1981), cert. denied, 457 U.S. 1124 (1982)."
from the site:
Guide to Privacy: Washington

I am really sorry that Canada and Australia are places where you have such limited rights.

The Elitist - formerly known as PDL

Last edited by PDL; 11-28-2007 at 12:53 AM. Reason: spelling
11-28-2007, 08:39 AM   #43
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QuoteOriginally posted by MRRiley Quote
The Montgomery County, MD Attorney provided the "last word" on the situation in Silver Spring. Of course the developer could have sued the county and taken it to court for a precedence setting decision but they evidently (and wisely) decided they were likely to lose. Photographers now have fairly unecumbered access to Downtown Silver Spring although I imagine the developer grinds his teeth every time he sees someone with a camera. LOL

Anyway, one of the statements the county attorney made in his opinion was that...

"The county retained an easement over specific portions of the leased property for vehicular and pedestrian use."

Thus the developer was oversteping the bounds of his lease when he began restricting photography. The basic theme of the opinion was that the street and sidewalk in question had been public property prior to the redevelopment and their appearance did not change in any apparent way. There was a lot of supporting precedence in the opinion, but the easement was the basic reason that the developer couldnt control or restrict photography.

Now, for something completely different... (my apologies to Monty Python)

We have a similar appearing outdoor "mall" here in Reston, VA. It is called Reston Town Center. Security guards routinely stop anyone with a DSLR and ask them for their "photography permit". If you don't have a permit you are asked to stop shooting and/or leave. No one has evidently resisted to the point of arrest. They don't seem to be worried about anyone with a PnS or cell phone camera so I believe their intent is to control commercially viable images. About the only time you can shoot there with impunity is during public events such as concerts, festivals or the annual bicycle race.

The difference between the 2 "malls" is that one (Downtown Silver Spring) was created on public property and leased to the developer (with easements for public access) and the other (Reston Town Center) was created entirely from the outset on private property. Thus, unlike the area in Silver Spring, MD it IS private property. The "public" has only as much access as the property owner choses to grant. For all intents and purposes the Reston Town Center is the equivelent of an indoor mall with the exception that is is deceptively public appearing. I believe you could possibly win a legal challenge to their photography restrictions. There are NO signs indicating that the streets and sidewalks are private property, nor are there any obvious boundaries or dividing lines between RTC and the surrounding public spaces. However, I have neither the energy or the resources to challenge it so just live with it in this case. There's not really that much there to shoot anyway.

So, why did I even bring this up?

I believe it is important to point out that you must be careful even when you are in a place that appears to be "public". This can relate specifically to the OPs question. If you are on a marked public street or road (State Rd 236) you can assume with a reasonable degree of certainty that you are on public property. If however you are on a back road or even an obscure urban alley you may indeed be on private property, even if it's not marked.

If someone challenges you, you have to decide for yourself just how far you want to take your insistance upon exercising your free speech rights. At the very least, if you are challenged by a private security guard, insist upon seeing the property manager/owner and politely ask for proof that the property is actually "private". If it is, and the property manager/owner still asks you to leave, do so quietly. After you leave, do what you can to notify other photographers about the photography restrictions...

Mike

Now, a disclaimer... I am not a lawyer, nor do I play one on TV... The above ramblings are my personal opinions only and should not be construed to be either binding legal or even sane advice... They are simply and solely based upon my reading of numerous laws and policies.
Mike

Very good response. One thing you left out, and I am not sure you considered it, at the Reston Town Center, did you ever ask "where do I get a permit".

Also and this is really nit-picking, by using the name" Reston Town Center" are they declaring themselves public?

Editing note. Since you point out that they only prohibit people with DSLR's, because they may be using them for commercial shots, does that really imply that all photographers with DSLRs are commercial photographers. To me, the logic seems wrong. A pro will always get a permit, and if he does not, there are already legal avenues to protect the mall. I would be much more concerned about security not commercial use, and that is NOT restricted to camera type at all. In fact, the PnS and Cell Phone cameras are much more of a security risk because photo's can be taken with no one knowing. The problem is, it is almost impossible to ban cell phones and almost impossible now days to get one without a camera.

Last edited by Lowell Goudge; 11-28-2007 at 08:50 AM.
11-28-2007, 11:01 AM   #44
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QuoteOriginally posted by Lowell Goudge Quote
Mike

Very good response. One thing you left out, and I am not sure you considered it, at the Reston Town Center, did you ever ask "where do I get a permit".

Also and this is really nit-picking, by using the name" Reston Town Center" are they declaring themselves public?

Editing note. Since you point out that they only prohibit people with DSLR's, because they may be using them for commercial shots, does that really imply that all photographers with DSLRs are commercial photographers. To me, the logic seems wrong. A pro will always get a permit, and if he does not, there are already legal avenues to protect the mall. I would be much more concerned about security not commercial use, and that is NOT restricted to camera type at all. In fact, the PnS and Cell Phone cameras are much more of a security risk because photo's can be taken with no one knowing. The problem is, it is almost impossible to ban cell phones and almost impossible now days to get one without a camera.
Lowell,

You have to get a permit for the following day or other date in the future at the RTC Office. I'm not sure where that is but I assume at one of the main buildings. I havn't asked or bothered to look it up. The only time I shoot there is during"events" when they don't seem to care.

Evidently the property manager seems to assume that someone with a (D)LSR and a "big-ole-lens" is a pro. We all know that that isn't the case, but you can't deny that when you see someone using a (D)SLR you assume they have more photographic knowledge and experience, whereas if they are using a PnS you barely even notice them.

I agree with you about the PnS and Cell Phone cameras being more of a security risk. Frankly if I was "casing the joint" that's what I would use too. Their very unobtrusiveness and stealth as well as the fact that everyone and their brother has one makes it a practical impossibility to police even if it is detected.

This is why I think they are, at least by policy, more concerned with the "commercial potential" value of images shot with (D)SLRs. The quality, at least up to now, of images shot with PnS cameras does not generally reach a significant level of "commercial" value. Again, this is changing as PnS cameras get better and better but "assumptions" are everything in this discussion. Its simply easier for them to pick on (D)SLR users to make it look like they are doing something.

Last edited by MRRiley; 11-30-2007 at 08:16 AM. Reason: typo
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