Before I get into this story I want to set the psychographic stage, because I’ve been through this enough now to know what kind of conversations these controversies stir up. My 2007 incident in San Antonio [see An Accidental Interview With Lieutenant Phil Dreyer] - which was much scarier and more flagrant than the one I'm writing about today - made me realize how out-of-fashion standing up for your rights has become, and also how much it opens you up to criticism for being a troublemaker (and more).
People like Thomas Hawk and Carlos Miller have famously faced this as well. The assumption (often verbalized) is that we’re belligerent, in-your-face assholes who go to places sticking our cameras (and our laminated, marked-up copies of the First Amendment) in people’s faces, looking and hoping for a fight. Sorry, but that’s just not true. I absolutely hate these confrontations and just want to make my pictures and be left alone. For instance, I had a terribly embarrassing and awkward police / photography incident at LAX a few months back and decided not to write about it because of the rather sensational issues it would raise. So trust me, I am not in this for the fight.
Those of you who know me personally know that I am polite, calm, and treat everyone with the same patience and respect that I expect of others. I also know and appreciate that people have jobs to do and I understand they are often working with very confused or limited information from their superiors.
Having said that, unlike most people, I do not fold like a lawn chair when approached by someone with a patch on their shoulder. If I think something is bullshit, I will tell them. Thus, in a society where instant compliance with any and all authority - legitimate or not - has become de rigueur, no matter how absurd the request or demand, I am sometimes the odd man out.
But I am, for lack of a better term, a really nice guy. I’m sorry I have to preface with all that, but I wanted to (try to) head off that line of discussion. Those of you who do not know me personally will just have to take my word for it. Now, on with the show. [Italics represent approximations of what was said; quotes are quotes.]
On Friday night, January 16, determined to overcome my high ISO phobia, I went out to make some night pictures of Venice and Santa Monica. I eventually made my way to the Santa Monica Municipal Pier, and wandered into Pacific Park, the amusement park situated thereon. I began taking a few shots of the neon signs inside the park, and was almost immediately approached by an employee wearing a “Pacific Park Security” uniform.
He politely told me that if I was “taking pictures of your family, etc. that’s no problem, but...” and then just trailed off, apparently expecting me to simply comply and stop and disappear. But I persisted, asking: “but what?” He again attempted to describe “family” and such as acceptable subject matter, but random pictures of the park definitely were not.
I asked him how he would know if it’s my family. Is this checked? I told him this seemed like a really weird policy. To illustrate, I tossed him a couple questions: do they need to be related by blood or is marriage OK? - or - theoretically, if I just wanted a picture of the “Ship A Hoy” ride, could I bring in my family, photograph the ride with them wayyyy down in the corner, then just Photoshop them out? If not, how do you plan to prevent this?
Clearly uncomfortable with my crazy talk, he said, “let me take you to someone who can explain it better.”
He then led me a short distance to a second security guy who explained that it’s OK to take pictures of “people, etc.” but I could not take pictures of park “things.” He described it as “private property” and “you see, everything you photograph in this park, it’s copyrighted.” I replied, “yes, copyrighted by the photographer.”
He seemed confused by that. So I asked, “is it a question of the subject matter of the photograph? that’s the basis of the policy?” Yes, he said, that's the policy. “Otherwise, you need to sign a waiver and show ID.”
I asked how they determine what I’m photographing. Do you review the photos? “For instance, your colleague said it was ‘family’; how do you know who my family is?”
He did not have an answer for that, so decided instead to move on to a new line of reasoning. He said that “if it’s for commercial use” I would need to sign. Then - quite relieved - I said, “oh cool, then, because this isn’t for commercial use. So, can I go take some shots?” But still he said no, that I would need to sign the waiver if I wanted to take pictures of “park property.” I was confused, and told him so: You just said that the waiver was required if the images were for “commercial use”. They are most definitely not for commercial use. So why do I need to show ID and sign a document?
The apparent policy shifting yet again, he said that even though I wasn't shooting commercially, I needed to comply if I wanted to photograph “park property.” Photographing their property was now the issue at hand.
I said, I’ve photographed “park property” (such as the ferris wheel) at least 100 times, sometimes from ON the pier, but most of the time from the beach or elsewhere along the coast. I don’t understand why you'd have a policy about photographing “park property” when most of those shots are taken from outside the park - I mean, it’s not enforceable enough to be a useful policy. He said, “well, once you step out of Pacific Park we can’t do anything about it.” I said, yes, that's my point - how is that a useful policy, since easily 99% of the acts that the policy seeks to prevent are unpreventable. (Google Earth, anyone?) To his credit, he seemed a lot less confused than I was.
He reiterated that I would need to sign a waiver to keep taking pictures and I would also need to present identification. I asked him about all these other people - taking pictures and enjoying their weekend outing at the Park; quite literally as we were speaking, flashes were popping around us. Finally, calm but clearly at the end of his rope with me, he offered to get someone else to talk with me about it.
On his radio he seemed to request a Santa Monica Community Service Officer, and that seemed a little odd since I was supposedly on “private property” (and at the time I believed that.) Thus, I doubted Santa Monica police officials would be able to help us understand Pacific Park’s “private” policy.
But I never saw that officer. Instead, a few minutes later, a third person showed up. He - Gerald - asked how he could help me, and I told him I was just hoping to get clarity on the photography policy because these two guys are telling me different stuff, but in a nutshell they are telling me I can't take pictures. In an exaggerated physical move, he looked me up and down and I did the same back at him, unsure what it was about. He explained that he was just checking out what kind of camera I had. For the record - as if it should matter - I had my Nikon D700 with a Nikkor 50mm lens on it. (The 50 was making its maiden voyage on the D700, in fact - and that combo is small and subtle compared to what I’m usually carrying around.)
Gerald then asked what the pictures were for and I said they were for me. He gave that a half-head-shake, seeming to think that was weird. I said there are others taking pictures around us as we speak. He gestured around the park and said, “everyone you see here is subject to the exact same rules”. I said if that were true you would be speaking to all of these other people as well, but you’re not. Or perhaps you would post a sign, but I did not see one at the entrance (I checked).
I told Gerald about the “family” rule I was given initially and he acted like that was the first he'd heard of it, too. Gerald said that all they were asking me to do is sign a waiver “to protect you” from “us suing you.” I told Gerald it does not protect me at all to enter into any kind of contract with Pacific Park. You can sue me if you wish; I can sue you if I wish. But I don’t wish to sue you, Gerald, I just want to take some pictures, and I’m desperately seeking clarity here, because I continue to see others taking pictures as we speak and as far as I can tell, I’m the only one being hassled about it.
He then offered to bring me to his office out back somewhere so I can see the waiver and the vaporous photography policy he said he had back there, in writing. I declined his invitation because I didn't want to sign the waiver, and judging from these conversations, I didn’t believe I'd see a written policy either.
Then the reasoning shifted yet again. Gerald said I needed to sign a waiver “if it’s professional”. [So, for those keeping track, the policy has now evolved from the “family/no-family rule” to the “people/things rule” to the “commercial/non-commercial rule” to the "not our property" rule and now we have arrived at distinction number five, the “professional/amateur” rule.]
I asked Gerald how a professional is defined. Skill level? Equipment? He said it was defined “by equipment”. I asked what kind of equipment is allowed and what isn’t - e.g. I assume, then, that a professional photographer is allowed to take pictures with an old point-and-shoot, but an amateur isn’t allowed to take pictures with a nice camera? He replied, “look, with a camera like that, I can see why these guys approached you.”
So, tiring of the mental ride I was on, I attempted to bring it to conclusion by asking Gerald directly if I would be ejected from the park if I continued to take photographs. He did not give me a direct answer to that, but replied, “if you want to continue to take pictures you will need to come with me and sign” the document and provide identification. I did not wish to do so, so I declined and told him I would comply by not taking any more photographs and would instead leave Pacific Park. We bid each other good evening and that was it.
It’s important to point out that all three of these guys were courteous. They all seemed quite exasperated with me, but each handled me in a friendly, respectful way. Admittedly Gerald was courteous and friendly in that hurried, talking-through-his-teeth, slightly agitated kind of way, but he was at all points a professional.
And to their enormous credit, they never once threw out any bullshit pretense about “security”. Frankly it was great to have a run-in like this, that - while it might have felt a little Alice-in-Wonderlandish - never took on the absurdity of the “security” arguments I’ve had in the past.
Other than the total lack of policy clarity, what's become interesting to me about this is their assertion that Pacific Park is “private property.” I believed it at the time, and have immense respect for private property rights. Basically I feel that a property owner ought to be able to put in place just about any policy they want, no matter how stupid the rest of us might think it is.
But upon further reflection, I don’t understand how Pacific Park can fit the legal definition of private property. Perhaps it can, but the entire pier is owned by the City of Santa Monica (thus the name “Santa Monica Municipal Pier”), and Pacific Park appears to lease the space from the City (as Santa Monica Amusements LLC.) The Park is entirely surrounded by - and from a purely physical point of view literally sits atop - public property.
Thus, Pacific Park appears to be a private service operating on public property. I might be wrong here, and I’ll let the lawyers out there more clearly define this for us.
So, given all this - that Pacific Park is open to the public and operated on a municipal pier - I am having a very hard time understanding how any of the policies advanced to me on Friday night could be legal. They may very well be - and it may very well (somehow) be private property - but at this point neither the property status nor the photography policy are at all clear to me.
So, the outstanding questions as I see them are:
- Is Pacific Park “private property”, as the staff alleged to me?
- What is Pacific Park’s photography policy?
- If Gerald was correct, and the policy is based on the equipment being used, is there a public list available of permitted and disallowed equipment?
I will be inquiring of the Pier staff this week for clarity on all of this. That information - I hope - will greatly help the photographers who find themselves on and around the Santa Monica Municipal Pier each day.
[UPDATE 1: First Amendment attorney Bert Krages (author of The Photographer's Right and Legal Handbook for Photographers) has some analysis on photography in "public forums" - even those privately owned - here. Thanks, Bert!]