What Photographers Should Know About Trespassing

In Landscape/Nature by Andy Perkins7 Comments

Landscape and wildlife photographers sacrifice time, comfort, and convenience to capture images of nature's beauty. Most of us would say it's worth it. But with all that driving and hiking around during the wee hours when even a racoon would just hit the snooze button and go back to sleep, it can be difficult to tell where public property ends and private property begins.

Photographers should protect themselves–and the reputation of their fellow photographers–by learning when encroaching on private property becomes trespassing, and how changes in trespassing laws might impact their photography adventures.

Trespassing is More than Merely Being on Private Property

Note: As with all legal topics, please be aware: (1) laws can vary a great deal from place to place; and (2) Photography websites are not legal advice.

I've met many people who are surprised to learn that in most U.S. States, simply being on private property without permission isn't synonymous with trespassing.  Criminal Trespassing typically also requires somewhat explicit lack of permission. Formally, to receive this express lack of permission, is to be “denied entry” to the property. The most obvious example is a large, conspicuous and easy-to-read “No Trespassing” sign. If I'm squirrel hunting and I jump a fence with a No Trespassing sign because I'm distracted by the intensity of the hunt and my desire to bring in the Great White Whale of squirrels, that's no excuse. The sign has formally denied entry to me. If I enter onto the property anyway, I am trespassing.

Alternatively, it might involve a scenario like this: a property owner shouts at me, “Don't you dare park that AMC Gremlin on my lawn, you dirty hippie!” I respond by deftly ignoring this friendly warning and parking on his lawn, then I sell various homemade macrame items of dubious quality to strangers that pass by.  The owner's verbal statement has formally denied entry to me. Since I entered anyway, this, too is trespassing.

This notice requirement might be fulfilled by a non-owner, like a manager or tenant. It might be a security guard of a high-rise building who has authority to deny entry. Or it might be a tenant farmer who has the right to harvest crops. It might even be the librarian who tells me, ” Sir, you're not allowed to cut all of the pictures of Selma Hayek out of the periodicals. I'm going to have to ask you to leave.”

In most jurisdictions in the United States, a simple trespass is a Misdemeanor. But some properties are considered to have more sensitive security concerns. Trespassing at schools and public utility properties, for example, are potential felonies in my home state.

Peculiar Purple Property Perimeters

Written and verbal warnings aren't the only way be denied entry onto someone's premises any more.

“Purple Stripe in the Morning, Shutterbugs Take Warning”

Indiana recently became the latest state to pass a so-called “purple paint” law which permits property owners to forego the posting of No Trespassing signs in favor of vertical purple lines on trees or posts, designed to have the same effect.  The law's sponsor, State Representative David Wolkins, noted that it could save some property owners money. For those owners who don't need to build fencing for agricultural reasons, the posts and purple paint would legally serve as a warning against trespassing.  It has been reported that these “purple paint” laws date back to 1987, when then-Governor Bill Clinton signed the first such law into effect in Arkansas. Previous States to adopt some version of the law include Texas, Illinois, Missouri, North Carolina, Maine ,Florida, Idaho, Arkansas, Montana, Arizona, and Kansas.

But what happens to someone who simply has know idea what the purple stripes mean?

Accidentally On Purpose

A precocious six year-old stands in front of a broken cookie jar. “Did you do this on purpose?” her mother asks.  The child thinks for a minute. She definitely ate the cookie on purpose. But she didn't mean to break the cookie jar in the process. Which is her mother referring to–the cookie or the broken jar?  So she splits the difference.

“I did it accidentally on purpose,” she says.

For a would-be trespasser, it's not hard to imagine a similar response when a police or conservation officer asks, “What are you doing on this farmer's property?”

Holding to the aphorism about ignorance of the law being no excuse is usually a pretty good guide, but ignorance of the facts is something else entirely. This type of ignorance frequently creates valid defense to crimes.  Why? Without getting too far into the legal weeds, it will suffice to say that many crimes contain “intent” as an element which must be proven for the defendant to be found guilty. Murder is an easy example. There's simply no such thing as accidentally committing murder.

Agree to Disagree

Photographers as Trespassers

So, can a Photographer accidentally trespass?  Well, yes, if she does so accidentally on purpose.  Let's break that down:

  1. The Photographer must first be denied entry. In States with the purple paint law, marking tress or posts purple is now as valid as posting a No Trespassing sign or saying out loud “This is my property, I want you to leave.” It meets the requirement that the Photographer has been denied entry.
  2. After being denied entry, the Photographer must enter onto the property intentionally–or intentionally remain after being told to leave. This simply means that the physical act of being on the property was not an accident and was not coerced (i.e., being thrown from a moving car when it rolled over, or being held by kidnappers at gunpoint).
  3. There is no requirement that the method of being “denied entry” be acknowledged, understood, or even observed by the Photographer.

The purple paint law expands the definition of what constitutes being denied entry. In effect, the purple paint doesn't say “This might be private property, beware!” it says “This is private property, keep out! No Trespassing!” As long as the purple paint is there, the first half of the trespassing requirement is met. It simply won't matter that the Photographer did not know what the purple lines meant. Just as it did not matter if, prior to the purple paint law, the Photographer didn't see the No Trespassing signs.

Tips to Avoid Trespassing

  1. Watch for Purple marks on tress and posts. Now that you know that the purple marks aren't some viral underground ad campaign for a Prince and the Revolution tribute band, keep an eye out! These marks should be on posts or trees–and the posts do not have to be holding up a fence. If on trees, the marks could easily be obscured by other trees. If you photograph the same area frequently, try to walk through it at least once in the winter months, where the markings will stand out the most.
  2. Document your location.  You have the best documentation tool ever invented in your hands, use it! If you're about to pass over what might be a natural boundary, like a treeline, a dirt road, or a creek, take a few pictures of the trees. This could be useful later to demonstrate the lack of purple marks on trees or absence of “No Trespassing” signs.
  3. If you see someone around, ask! If you see someone nearby casting a raised eyebrow your way while you're walking through the woods, don't wait for them to come after you to tell you you're on private property and you need to leave–ask.
  4. If you're asked or told to leave, then leave immediately. Don't get in long-winded explanations about how you knew a guy who was allowed to photograph here, or how you're “just taking pictures.”  Don't ask the person telling you to leave to prove he or she is the owner of the property. It's true that only a person with ownership or valid control over the property can deny you access, but now is not the time for technical distinctions.
  5. Don't just be a picture-taker, be a picture-sharer.  Most people who own beautiful scenic properties know it. It's part of the reason that they own it and spend time there. As a Photographer, you appreciate it as well. That's something you have in common. Why not take advantage of the commonality?  Seek out the owner in advance, and offer to share some of your images in exchange for allowing access. You get the confidence that comes with knowing you have the owner's explicit permission, and the owner gets permanent keepsakes of the land he already fell in love with.

Closing Thoughts

Of course, there's more to consider than just avoiding a criminal charge. First, just because you're not guilty of trespass doesn't mean the owner cannot claim a copyright in the structures that appear in your image. Enforcing the copyright doesn't depend on posting a “No Trespassing” sign or purple paint.

Also, beware of special industry-protecting trespassing laws. Some States have given businesses an additional tool to fight industrial espionage and activists who visit or photograph businesses under false pretenses.  If your photography business or hobby spills over into gonzo journalism, or hidden-camera expose territory, beware.  These so-called “Ag-Gag” laws typically make it a crime to inter onto an agricultural premises with the intent to damage the business–including its reputation.  These laws remain somewhat controversial, as some journalists and animal rights activists believe hidden-camera techniques to be essential to uncovering abuses. You might call these “trespassing on steroids” laws, as they cay carry stiffer penalties. Don't be the test case for the unwary photographer caught up in them.

I think it's just bad form to walk or drive onto private property without the owner's permission, even if there are no posted signs or purple trees.

So, by all means, make it your goal not to get arrested. But honestly, that seems like a pretty low bar for a photography excursion. That's like something that the worst guy at a bachelor party shoots for. (“Dude, this party is going to be lit. Let's just not get arrested.”) I think it's just bad form to walk or drive onto private property without the owner's permission, even if there are no posted signs or purple trees. I can't help but hear Jurassic Park OG Jeff Goldblum in my head, reminding me that I'm so preoccupied with whether I can photograph at a particular location, I might not stop to see if I should.

Whatever your photography passion, it's important to know where you stand with property owners when you're outside the studio. Being a good neighbor and a good traveler is just part of being a good photographer. Now if you'll excuse me, I'm feeling a little vulnerable since you all know that my inner voice is Jeff Goldblum.

Well, um . . . uh . . . there it is.

 

 


About the Author

Andy Perkins

Andy Perkins is a part-time real estate and landscape photographer with Atlas Photography, LLC of Indiana. He is also a full time attorney and does not care for hazelnut. More at www.atlasphotoguy.com, IG @atlasphotoguy

Comments

  1. Here’s something I’ve run into and I’d be interested in your thoughts on it. There are places where I might be on public property but wish to photograph something that is within the bounds of private property. If my subject can be seen and photographed (even with a long lens) while I remain on public property, does the property owner have any right to tell me I can’t photograph what I like?

    I have encountered multiple instances where property owners would like to tell me I “can’t photograph that” even if I was on the perimeter of their property. I’m sure drone photographers encounter this all the time. I’d contend that if something can be seen from a public vantage point, it’s fair and legal to photograph it. Your thoughts?

    1. Author

      Rick:

      I’m sure many photographers have run into that scenario.

      I think that taking the photo and using the photo are two different things in that instance. If you’re standing on public property, I know of no valid basis the private property owner can use to deny the right to photograph. At least in the U.S. If it can be seen from public property, the owner doesn’t have a reasonable expectation of privacy. This is essentially the argument that law enforcement officials often use in court to defend warrantless searches using techniques beyond the naked eye, like drug-sniffing dogs a thermal cameras. A typical DSLR is far less intrusive than these techniques.

      Using the photo is not necessarily so wide-open. Copyright, model releases, right of publication, etc.

      Drones are a different matter altogether. Generally, since the FAA doesn’t want to see drones above 400 ft (plus the height of an obstacle underneath), photographer’s drones are unlikely to be much higher. A 1946 Supreme Court case held that 83 feet was too low for air travel and interfered with a farmer’s property, and that a property owner owns at least as high into the air as is necessary to use in connection with the land. But the exact status of what’s high enough that it’s not within the owner’s rights, but still under 400′ is murky. Also, local ordinances may certainly have a say in this or many other aspects of drone use.

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