Re: [Leica] Copyright questions

["Bryan Caldwell" <bcaldwell@softcom.net>]

>>Then again, some court decisions have held that a shopping mall is
sufficiently
public that photography cannot necessarily be prohibited, if I remember
correctly (sorry, no citations handy).<<

Although the Supreme Court wavered on this a little bit in the late
'60s/early '70s, the current state of the law is that there is no right of
first Amendment access to a privately owned shopping center under the
federal consitution in the U.S. This means that you do not have any
constitutional right to take photographs (an act of "speech" for first
Amendment purposes) in a privately owned mall over the owner's objections.
(This assumes that you are "in" or "on" the private property while you are
attempting to photograph.)

This stems from Hudgens v. NLRB (1976) 424 U.S. 507. However, California has
interpreted its own state constitution as conveying such a right and this
has been upheld by the U.S. Supreme Court (Pruneyard Shopping Center v.
Robins (1980) 447 U.S. 74). As far as I know, this view has not been adopted
by any other states. The bottom line: in California you have first Amendment
rights in a privately owned mall; in the rest of the United States you
don't.

Bryan




- ----- Original Message -----
From: "Mxsmanic" <mxsmanic@hotmail.com>
To: <leica-users@mejac.palo-alto.ca.us>
Sent: Monday, June 18, 2001 2:00 PM
Subject: Re: [Leica] Copyright questions


> David Rodgers wrote:
>
> > One morning a guard came up to me and stopped
> > me from shooting. He claimed that all the
> > storefronts -- window displays, etc. -- were
> > protected under intellectual property laws.
>
> You know, the average pet canary knows more about intellectual-property
laws
> than the average shopping-mall guard.
>
> > He said it was unlawful for me to photograph
> > them even if they were in the background.
>
> Not true.  However, since you were on private property, the owners of the
> property can control what you do on the property to a certain extent, and
the
> guard might have grounds to prevent you from taking photographs on that
basis
> (although he apparently did not know this).
>
> Then again, some court decisions have held that a shopping mall is
sufficiently
> public that photography cannot necessarily be prohibited, if I remember
> correctly (sorry, no citations handy).
>
> > I thought that was an odd reason to stop me.
>
> He had to make up something, I suppose.
>
> > Perhaps he didn't want to say that they don't
> > allow photographs to be taken in the mall.
>
> Why not?  That would at least be truthful.  Then again, if the decisions I
> mention above were a concern to the owners, they might be wary of trying
to use
> that argument to prevent photography, since it might not hold water if
> challenged.
>
> > I called ahead to get permission the next time.
> > The mall's property management people told me no.
> > They didn't gave me a reason.
>
> That's because they didn't have a reason.  Whenever you ask _permission_,
you
> arouse _suspicion_, and whenever suspicious people are given the
opportunity to
> say no, they will.  I'm not saying that you should not ask permission, I'm
just
> saying that if you do, the answer will almost invariably be no, no matter
how
> innocent your intentions, and despite the inability on the part of the
refusing
> party to come up with any kind of reason for its refusal.
>
> > I've always been curious. Was it because they
> > didn't want any type of commercial photography
> > in the mall?
>
> It was probably because they were afraid of the unknown.
>
> In fact, I bet that if you walk up to a mall guard at the entrance to a
shopping
> mall, and ask if it's okay to go inside the mall and look around, about
half the
> guards you ask will refuse.  Never mind that you are simply asking to do
what
> everyone else already does without asking.  Never mind that you are asking
to do
> exactly what the mall was built to provide.  The fact that you _ask_ will
make
> the guard suspicious, and so he'll be tempted to refuse, "just in case."
>
> > Was it an intellectual property issue?
>
> Could be.  But since the mall is a public place (or rather a private place
open
> to the public without restriction), and since the stuff in windows is
meant to
> be seen by the public, there are limits to what IP restrictions can do.
You
> can't simultaneously exhibit something to the public and refuse to exhibit
it,
> it has to be one or the other.
>
> > What I find interesting is that the guard ignored
> > me the times I used my Leicas. He stopped me when
> > I used my Hasselblad.
>
> He sounds pretty stupid.  But then again, most guards are.  It's hard to
find
> competent guards that will work for the pay they get, and I daresay that
it's
> impossible to find guards familiar with intellectual-property laws (or any
other
> laws) who will work for that pay.
>
>