Click

Unwonk - Episode 9: Click

A special photography episode of Unwonk: We learn the difference between a peeping Tom and just a regular creep, who can make you delete your photos, and why wedding photographers have souls of darkness.

Listen with the player below, subscribe in iTunes or Stitcher (links above), or with your favorite podcast app.

Please enjoy the links to additional information relating to the questions on this episode:

“Come to My Window” - Melissa Etheridge (who likely does not actually want you to come to her window)

“Get off my lawn.” - Clint Eastwood, El Torino

“My beloved spoke and said to me, ‘Love is patient,” and that a ring symbolizes the neverending something or other, and how long is this ceremony, exactly?” - Weddings

[Episode keywords: Peeping Tom, Privacy, Intrusion, Trespassing, Public Photography, Wedding Photographers, Photography Contract, Havah Nagilah.]


Episode Transcript

UNWONK PODCAST - EPISODE 9: CLICK

Hi, friend. This is a rough transcript of this episode of Unwonk. What's that mean? It means that we're just pasting the original script for the show plus unvetted transcripts of any interviews. So, you're likely to see content that maybe didn't make the final cut, maybe not see some content that was in the episode but not the original script, and run across a few typos. 

As with everything on Unwonk, the transcript below is for general informational purposes only - this is not legal advice - if you need to have a legal question answered, please seek legit legal representation. 

On this very special photography episode of Unwonk, we learn:

  • The difference between a peeping tom and just a regular creep,
  • Who can make you delete your photos, and
  • Why wedding photographers have souls of darkness.

This is Unwonk. We respond to your legal questions with relevant and useful information. If you would like to submit a question, please visit our site at Unwonk.com.

When you’re there, you can also find where to follow us on twitter, facebook, and all the social things. And make sure to tell your friends about us. Because friends are super.

Even though the  general information on this podcast is provided by actual attorneys, you’d be an idiot to think it is actual legal advice, and you’d also be the type of person who reaches in front of someone for something while saying “just gonna sneak in here,” because saying that you’re sneaking, is the complete opposite of sneaking.

And now, our first question.

This may make me sound creepy, but I assure you, I'm not. I was dating this woman I met on Tinder. She ended it - never got too serious. But then I kind of started missing her, so would find an excuse to walk by her house now and then. One time, I saw her standing in her living room and took a picture with my SLR. I did that a few more times, too - nothing weird, like her being naked or anything. I told a friend about it, and he said it was illegal to be doing that. If I'm on a sidewalk, can't I take pictures of anything, especially if I'm not being a creepy sex voyeur? 

The great thing about words is that we get to choose how to use them. And others get to accept how we use them, or not.

Your assurances of non-creepiness notwithstanding, I need to make this abundantly clear: You are creepy. Maybe not in a creepy sex way, or a creepy voyeur way. But there is absolutely no way your question does not make you creepy. It doesn’t just make you sound creepy, but goes to your core of being, which is clearly made of creepiness, maybe mixed in with some social boundary issues and a bit of loneliness. Of course, you can always become not creepy.

I’ll address the non-photographic legal issues in a bit. 

Here are the general thoughts on taking pictures inside a private residence from the outside - and please don’t use this as a guide for increasing your Peeping Tommery:

In general, when you’re on public property, if you can see it, you can take a picture of it. 

We’re assuming here that no photos are being used for commercial purposes and you’re not otherwise publishing them.

So, if you’re on the sidewalk, and you take a picture of someone standing in front of a window, that’s probably not an issue. This is because someone standing directly in front of a window doesn’t have a reasonable expectation of privacy. This was recently the subject of a case in New York, where a photographer took pictures from his darkened apartment of his neighbors across the street. Some of the neighbors challenged him, but he won. Turns out, you don’t have a reasonable expectation of privacy standing right behind a manhattan apartment window. You can read more about that on our website.

 I lived on the 26th story of a building in Manhattan with three other people. One night - while have a smoke out on the balcony - I turned to the building next door and noticed a flicker of movement a few stories below. It was a woman, dancing. Naked. But she wasn’t just dancing. She was in front of a full-length mirror. She would put on a dress, dance a bit while looking in the mirror, pretend that she was having a conversation with someone, even while holding a pretend drink, and then dance a bit more. She’d put her hair up. And then put it back down. And dance a bit more. Then try another dress on. Then take off. Then dance naked a little. She was - it appeared - practicing being social while figuring out what to wear that night. And she was doing it a lot of it naked. In front of her window. 24 stories up, in full view of the entire side of my building. 

I did what any responsible 20-something would do, I yelled for my roommate, Jeff. 

I don’t know how - maybe it’s the way I yelled his name, or maybe the fact that he knew I was on the balcony - but he ran through the door with binoculars in hand. I looked down at the binoculars, we made eye contact, and he kind of shrugged. He put down the binoculars. 

We watched few more minutes as she walked through variants of gestures and what looked like laughs - the one she practiced most was pretending to laugh at a joke while lightly brushing her left collarbone with the fingers of her left hand. This was - by the way - not in the least sexual - despite her nudity and dancing. It was like any window in New York City - a diorama of urban life. Sometimes it’s a glimpse of a lone man standing in the middle of his living room, eating out of a take out container - an older couple following an exercise video on TV - or just someone quietly reading. And sometimes it’s you, and you don’t really think about it. But you’re not knowingly in the diorama and doing something you don’t want someone to see. 

That night, Jeff and I were given a glimpse into the highly structured social preparations of a youngish possibly single woman in Manhattan. And we never saw her go through the ritual again. Not that I was looking, of course. That would be creepy.

So, back to your question. Was standing outside and taking a picture of someone in the window illegal? If you’re on their property, you’re going to be guilty of something called “unlawful peeking” - yes, that’s real. Of course, usual statement here, states vary on this and a lot of other legal issues.

If you’re on the sidewalk, and the person is standing right behind the glass window, and you take a picture with your regular old camera - likely not illegal from a privacy perspective. 

States do have specific laws about going further than this. If you were going to use a telephoto lens where a shorter lens wouldn’t get the picture. Or if you were using night vision. This could very well be illegal. Why? Because while someone in the window would not have a reasonable expectation of privacy, someone down a hallway that was visible only with a powerful lens, or someone shrouded in darkness that could be visible with night vision, could have a reasonable expectation of privacy. 

California, for example, makes it a misdemeanor to use a periscope, telescope, binoculars, camera, motion picture camera, camcorder to invade the privacy of a person in an area in which there’s a reasonable expectation of privacy. Yes, a periscope. I’d really like to know why the first thing on that list is “periscope.” The California law also appears to put a complete ban on these activities in bedrooms, bathrooms, changing rooms, fitting rooms, dressing rooms, or tanning booths (and you shouldn’t be using tanning booths anyway - very bad for you).

Man. Just talking about this is creepy.

Regardless of the legality of doing what you did. You should stop and think about what happens if you keep doing it and and get caught. The fact that you keep walking by her house, taking pictures, probably constantly checking her social networks - all that may individually be legal, but would certainly be used as evidence for her to get a restraining order, bringing harassment charges, and a buttload of other issues. 

You should also think about what happens if you don’t get caught - your unilateral relationship with this woman is not going to be healthy for you or future partners.

Look, do you really want to be known as the guy who took it too far? Pining from afar is one thing, but you’ve now successfully leveled-up to creeper territory - and if this failed Tinder woman finds out what’s going on, it’s going to have a negative impact on you personallly and possibly legally. Me, I’d swipe left and move on.

I like taking pictures of architecture, especially office buildings. On vacation recently in Chicago, I was recently in the lobby of a cool old office building in the Loop - it has a throughway that the public can pass through - a security guard told me that photography wasn't allowed and made me delete my photos. Pretty sure he was lying, but it kind of rattled me, so I obeyed. Was he bullshitting me, or can people ban photography in public places?

Reasonable people can disagree on a lot of things. But I think most reasonable people can agree that few things are as annoying as tourists and photo enthusiasts clogging busy throughways and buildings on a work day, swinging around their SLRs, endowed with those r pendulous heaving lenses, while the rest of us are just trying to survive our workday.

At first I hated the selfie stick - and still shudder a bit when I see one - but at least the selfie stick people are the stop and click kind - hit and move on - it’s really more the concept that unnerves me than the application. The SLR people are pensive, deliberate - they need just the right amount of time and stroking their zoom lens to capture the perfect shot of the facade of the Bubba Gump Shrimp Company - crouched over with their giant camera mashed against their face, like they’re pressed against an invisible wall - a pantomime peeping tom - resulting massive pedestrian congestion all around them. 

For the record, I don’t wish to imply 4that I have ever been or ever plan on eating at Bubba Gump Shrimp Company. That was just an illustration. 

I get a sense from your question, though, that you are not one of the pedestrian traffic blocker types.

Let’s talk public and private.

If you’re on a public sidewalk and see a really neat lobby in a building - you can take a picture of it as long as you’re on the public sidewalk. And nobody can stop you. 

Once you set foot onto private property, you become what’s called a licensee - that’s a legal word for guest. Meaning, you are on private property at the owner’s discretion. So, if you’re snapping photos on a phone, SLR, or pinhole camera or even just holding your hands up to your face and saying “click,” and someone representing the building tells you to stop, you need to stop if you want to stay in the building. If you don’t, you’ve exceeded your license to be on the property and they can kick you out - at that point, you’re an unwelcome trespasser.

This is no different than me telling my house guests that they need to wear clown shoes in order to hang, that they can’t discuss The Wire while they’re over (I know it’s an old show, but still really planning on getting around to it), and, under no circumstances, may anyone feed the Mogwais after midnight - I mean, comon. Also, you can’t take pictures. Those are the conditions for being on my private property. 

Same goes for an office building. Assuming the public throughway you’re talking about isn’t an actual easement that has conditions beyond just providing a pathway, that’s likely not relevant. 

Remember, just because you can pass through something as a member of the public, doesn’t mean that it’s not private property. And when you’re on private property, the owner gets to make most of the rules. 

What was bullshit, however, was making you delete your photos. 

This can only happen by court order. Why? Because if you were told not to take photos or there was a sign saying no photos, they would need to take the issue to court to prove that you were outside the scope of your visitation license - fantastic phrase i just made up. Visitation License. Going forward, I’m not going to ask a friend if they want to hang out - just going to see if they want to be issued a revocable, non-assignable, visitation license - this is gonna increase my personal brand value.

So, you’re left with a decision, do you go cameras blazing until you wait to be told to stop, or do you follow the rules to begin with. Personally, I’m an ask forgiveness type - thinking the risk of the building filing a lawsuit against me to delete my photos is pretty low.

As for when your the sidewalk, take all the pictures you want, no matter what any security guard says. Though, they may just be telling you to stop because you’re in everybody’s way. So scram.

I'm getting married this fall and am looking for vendors for flowers, music, photography, and so on. I've talked to a couple photographers and have copies of their contracts. I've heard horror stories about people having their photos being held hostage by photographers. How can I prevent this?

Hey, congratulations on the wedding. And condolences on the wedding planning. You’re now responsible for orchestrating the largest you-focused circus you’ll ever experience. 

And it can be stressful, especially when you’re selecting vendors: florist, DJ or band, officiant, caterer, video guy, invitation printers, seat fillers, and the photographer. Here’s a pro tip: the moment you mention the words “wedding,” “engaged,” or “married,” expect all prices to double - just tell them it’s for a funeral or something.

And there’s especially a lot of pressure in selecting a photographer. These are images that are going to need to look good for a long time. And a good photographer is going to make sure there are plenty of photos that don’t make you look hungover from the rehearsal dinner or starchly awkward at the prospect of going through a ceremony that until recently in our history meant that immediately afterwards - and I mean immediately, in a room next door - the new husband was expected to have sex with the new wife in exchange for a large amount of cash and assets. The tossing of the garter actually derives from the old times when select guest would witness the couple consummating the marriage - just to make sure it’s a sound investment.

Actually, that doesn’t sound so bad. A bit whorish, but not so bad.

The photographer feels the pressure, too. The photographer is expected to make everyone look good. The photographer has to comply when someone wants a picture of them making that damn heart thing with their fingers. The photographer has to herd and corral obstinate family members for a bunch of cohesive formal portraits right after the ceremony when everyone just wants to start drinking with the other guests. 

Most of the other vendors pretty much get to come in for their bit and then bail when they’re done. Or, at least, their job isn’t to witness the entire thing from preparation to ceremony to reception. The photographer has to live the whole thing over and over, existing in a matrimonial groundhog day, weekends consumed numbly watching the same pageantry in different dress, lurking in the shadows while the bride gets ready with her bridesmaids for her special day, listening to couples rattle off vows week after week - vows which they have a statistically high probability of completely fucking up, and worst of all, witnessing another one of those things where all the groomsmen or bridesmaids do a coordinated dance and/or song. It’s got to get dispiriting. I went to 11 weddings in one year - as an invited guest or a plus-1 - and found myself jaded on marriage for awhile by the end of it. Though the open bars were very appreciated.

If you ever want to see a true personal reveal, look outside the reception area when dinner is served. You’ll see the photographer, taking a break, eating whichever entree there was too much of. Rocking back and forth and muttering to himself “This is the last one. Last one. Didn’t go to art school for this.”

And this is why photographers hold pictures hostage. Because they are angry people, trapped in an mobeus wedding filmstrip.

No, that’s not why. They’re actually mostly nice people.

When you hire a wedding photographer, the money you pay them upfront is frequent just for taking pictures. It’s often not for getting copies the pictures. Many photographers then provide a link where you and your guests can order digital or printed copies of photos, and pay for the ones you select. Or your package may include a predetermined amount of photos.

How can they do this? How can they charge you extra for the copies? And we’re not talking Walgreens 15 cents a copy charges - wedding photographer per image charges are hefty, enough to question whether you really need a copy of the last photo of your sister before she went missing.

Here’s the answer: When a photographer presses the camera button, that action automatically creates a the copyright in the photo - and that copyright belongs to the photographer. It’s important to know that you generally can’t transfer ownership of intellectual property - and copyright is in that category - without assigning those rights in writing. 

And this takes us to the contract. 

You’ll often see in a photography contract that the wedding photographer retains all rights to the photos, or it’s silent on the issue. This means that your contract only deals with the photographer taking photos, and you’re not actually paying for the photos or even have the rights to them upfront - even if your contract allows for some prints or copies.

This is where you need to negotiate. Expect an experienced photographer to charge a lot more to give you ownership or a full license to the photos - but it may be cheaper in the long run. Often, print and digital images are included in the package. But look closely to make sure that you are assigned the copyright. 

You’ll also want to put restrictions on how the photographer can use the photos - like to promote his business on his website and such. 

One other big thing that’s becoming more common is a non-disparagement clause - and this applies to any wedding vendor. This kind of clause was usually only seen in business and settlement agreements where the parties basically agree not to say bad things about each other. But with the increasing prevalence of social media and ability to give someone a bad review that spreads wide and far, non-disparagement clauses are increasingly more common in agreements that affect individuals, from employment agreements to wedding vendor agreements. 
 
If you’ve got a good photographer, they’ll be willing to negotiate this stuff up front. You don’t want to battle over it later, especially if the experience was rocky all along. But you do want to head into it with your eyes open. Kind of like marriage. And good luck with writing and living the vows. I’m giving you better than even odds, no matter what everyone’s saying about you.

Thanks for listening to this episode of Unwonk. 

Please visit our site at Unwonk.com to submit your questions, and for lots of bonus material about the topics discussed on today’s episode. Please also follow us on twitter, facebook, and generally tell everyone you know to subscribe to this podcast.

On the next episode, we learn:

  • Why murder is illegal,
  • Except when it is legal,
  • But then it’s not called murder,
  • But it’s still killing someone,
  • But with a very good excuse, like the best excuse. Well, not the best, but good enough.