Where Has the Basic Sense of Right and Wrong Gone?
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Some things just leave me totally dumbfounded....

Carolyn Wright has an interesting article on her Photo Attorney blog: Update on the Lawsuit against Benjamin Ham for Photographing Private Property. It's about the legal wranglings surrounding a photographer who took a pretty photo of some trees while trespassing on private property. The owners of the property sued him to stop selling copies of that pretty photo, and much legal paperwork ensued.

There was, apparently, no dispute over whether the photographer, Benjamin Ham, trespassed on private property (“passing through locked gates and ignoring 'no trespassing' signs”) in order to make his photograph, but he apparently contended that the fruits of his trespass – the pretty photo – is an unrelated matter, and thus the photo is his to do with what he wants. The bulk of the discussion on Carolyn's post is about the legal stretching that the property owners tried to employ – invoking copyright and “conversion” arguments – to sue the photographer into submission.

In the end, after much legalese, the court threw out those claims by the property owner (they were apparently too much of a legal stretch), and so without anything to stand on other than a claim of trespass, the property owners resolved the case in mediation. In the end, Ham is still allowed to sell the photo, but it seems he's out a bundle of cash in legal fees.

So, that's the story and if you're interested in the legal aspects of it, the details are perhaps interesting, but here's where I'm totally at a loss to understand. Carolyn ends her post with...

Ham has done much for photographers. If you'd like to support his efforts, purchase one of his wonderful prints from his website

WTF?

I realize that Carolyn is a lawyer – one who might stand to profit from an increase in this kind of illegal behavior – but wow, how was she raised? Didn't her parents teach her anything about right and wrong?

“Criminal” is perhaps too strong a word for the photographer, but if Carolyn's representation of the situation is accurate, Ham is a freakin' jerk for such explicit trespassing, and an even bigger one for not apologizing profusely when caught.

Regardless of what loopholes may or may not be in current law, the law should be such that one is sufficiently deterred from this kind of action, and if you trespass (or steal or intimidate or destroy or whatever), at a minimum you shouldn't be allowed to retain gains that are directly related to your illegal activities. I think this idea is already present in laws that prohibit serial murderers from selling movie rights to their story, for example.

The deterrent should be more than simply “give up your gains” because that's not much of a deterrent (that would simply mean “try not to get caught next time”). The law should be such that the moment Ham made his decision to trespass, not only was he choosing to risk having to give up any photos he ended up with, he was also risking jail time or a hefty financial penalty.

In the end, he got the penalty (one paid to lawyers instead of the government's general fund), and, for what it's worth, my personal contempt. Ham has “done much for photographers” all right, much damage. The world is already full of people who think everyone with a camera is a terrorist, a paparazzi, or a child molester, and now we have people like Ham and Wright only making it worse.

Sigh.

Carolyn's blog is interesting and I read everything she posts, but one does have to read with a grain of salt. She's made lawyer-like technical mistakes before, and she sometimes tends to come across as if it's okay to do anything you want so long as you have a camera.... but her post today just left my chin on the ground.


All 22 comments so far, oldest first...

Nice post. I couldn’t agree more.

It’s bad enough reading about photographers escalating incidents (despite not breaking any laws) because they would rather force the issue than move along quietly to shoot another day. To see someone praised and held as an example of all that’s right, despite having broken laws, purely because he is a photographer and supposedly helping all other photographers by doing so is absolutely ridiculous.

— comment by Steve Crane on January 29th, 2009 at 7:29pm JST (8 years, 11 months ago) comment permalink

Not knowing the particulars of the case, and not that I agree with the outcome, but my understanding is that willful trespass in a civil case does not carry s much weight as one might believe. There are the horror stories of home owners being held liable for personal injury/negligence when a person(s) willfully trespassed to use a pool.
Second venue. Some venues (courts) are more sympathetic to/lean towards a certain legal point of view than others. This is why litigants venue shop. The most glaring case that readily come to mind is the Federal 9th District Court, based in san Francisco, which leans heavily towards litigants. It also has the dubious distinction of being the most overruled Federal court.

Last, and I am stretching here, the court may have determined that trespass was inconsequential, i.e., he could have gotten just a good a photo(s) from outside the property line.

Your last point is important because it highlights that we don’t know everything and that there could well be mitigating circumstances. (That’s why I qualified my opinion with “if Carolyn’s representation of the situation is accurate”.) As for the horror-story situations you mention, those fall into the “sue because the coffee was hot” category that make me feel dirty just hearing about. It’s sad, but some people will abuse any avenue they can to make a quick buck… —Jeffrey

— comment by Bob on January 29th, 2009 at 9:32pm JST (8 years, 11 months ago) comment permalink

I agree with you. I too like Carolyn and follow her blog, but at the risk of stereotyping, she is, after all, a lawyer. And the legal system is set up to generate fees while allowing lawyers to insulate their personal values and morals from the defendants and issues they represent.

So I guess if I have something on my property that I don’t want photographed (perhaps because I photograph it myself and sell the photos), than I can only do so by hiring guards to explicitly prevent trespassing? It does not seem right. I wonder if the judges might have found a different way to interpret the law had a sign been up explicitly prohibiting photography. I assume the fine/punishment for the trespass could have been made large enough to negate any profit the photographer might make and ‘encourage’ him to give up his copyright.

— comment by Howard Messing on January 29th, 2009 at 10:13pm JST (8 years, 11 months ago) comment permalink

Interesting idea, that climbing a fence, walking in a field, taking nothing, destroying nothing is wrong because someone passed a law making it illegal, but if the law wasn’t there then it would be right.

The two are separate something may be legal but wrong or illegal but right, (along with the various other permutations). I won’t rant but I but the government isn’t the decider or right and wrong, only legal and illegal.

Interesting idea, that picking the lock on your front door, walking into your daughter’s bedroom and standing over her while she sleeps, taking nothing, destroying nothing is wrong because someone passed a law making it illegal, but if the law wasn’t there then it would be right. —Jeffrey

— comment by Alan Schrank on January 29th, 2009 at 10:27pm JST (8 years, 11 months ago) comment permalink

“Interesting idea, that picking the lock on your front door, walking into your daughter’s bedroom and standing over her while she sleeps, taking nothing, destroying nothing is wrong because someone passed a law making it illegal, but if the law wasn’t there then it would be right. —Jeffrey”

I said nothing like that. Don’t misinterpret what I said.

Uh, yes, you said something exactly like that. Where do you see a conceptual difference?

Where the Selma Alabama 5 wrong for what the did because it was illegal?
Where the gas chamber guards in the Nazi death camp right because what the where doing was legal. What if I’m walking by you house and I see a fire in your daughters bedroom am I wrong to break in to try to save her?

The only thing I said was right and wrong can be different that legal and illegal.

I agree with that view completely, and had that been the only thing you said, I would have applauded the thought as “should be obvious, but to many it isn’t, and you expressed it in a wonderfully clear way”, but you didn’t lead with that, and what you did lead with overshadowed everything else. —Jeffrey

— comment by Alan Schrank on January 30th, 2009 at 12:58am JST (8 years, 11 months ago) comment permalink

@Alan: “Property rights” are a matter of right and wrong, not just legal and illegal.

— comment by Steve Friedl on January 30th, 2009 at 1:29am JST (8 years, 11 months ago) comment permalink

Jeff,

I see no way to edit comments. I guess I should wait until my publisher has reviewed? 🙂

— comment by Alan Schrank on January 30th, 2009 at 1:29am JST (8 years, 11 months ago) comment permalink

I think people should chill out in general. Because the law gives you a right to sue someone for “trespassing” doesn’t mean you have to use it disproportionately and go to the courts and waste time and money, this is too precious. What became of good manners? It looks as if everybody sues everybody over anything these days in America, and the only reason is $$$, inflated ego and low class (“everybody” being an exaggeration as part of an expression, don’t be offended and don’t sue me!).

Obviously my point is only valid for mild cases of trespassing where common sense should prevail, such as a fisherman walking up a stream in a remote unfenced area and this area happens to be private property. Is this wrong? If the fisherman doesn’t know about it, there isn’t much he could have done anyway. If he knows about it, then he’s not showing good manners and if the owner is bothered by his presence, a good talk should suffice. But hitting the courts over this? “I want a share of your catch because it was caught on my property”. And in some extreme cases, being shot over this? WTF??? I mean, what kind of mentality is this? That’s just soooo low class.

Now I’m not talking about the more serious cases mentioned above about picking a lock and all, this may be conceptually the same, but the severity is very different and they don’t warrant the same response.

— comment by Wako Niko on January 30th, 2009 at 2:24am JST (8 years, 11 months ago) comment permalink

The Foundation that received the land did so under conditions that had restrictions on commercial use; it’s not quite the same as some guy traipsing over my back 40.

— comment by Steve Friedl on January 30th, 2009 at 2:38am JST (8 years, 11 months ago) comment permalink

I know, I was just ranting about this topic in the general sense. My opinion is also that the foundation is justified because of this restriction on commercial use in their charter. As you said quite not the same as my examples but these were unrelated.

— comment by Wako Niko on January 30th, 2009 at 2:43am JST (8 years, 11 months ago) comment permalink

Indeed, “not raised properly” seems to be the only possible explanation to describe certain behaviors. As a philosophy, “anything you do is acceptable as long as you have a camera in your hand” would probably qualify.

— comment by Zak on January 30th, 2009 at 9:55am JST (8 years, 11 months ago) comment permalink

I agree with Waki Niko here.
I understand if you don’t want someone to come over your lawn or immediate surroundings of you house. But if you have no fences and you have a lot of land around your house then I wouldn’t mind if someone took some pictures there and behaving accordingly (not leaving any marks that there has been someone). We have this kind of law actually in Finland. It’s called “Every mans right” (well direct translation) that says everyone has right to “use” the land if it’s not someones courtyard. But there are some limitations that you can do and what you cant do without land owners permission but those are (or at least I feel) common sense. Like you cant make fire without permission or cut trees and stuff… And as someone said how could you know if your in someones land when there’s no any markings and you just stroll there and don’t make any permanent marks that you were there.
And hey come’on… Some trees in picture and you sue for that… And if your not even close to the house/courtyard.
I also have to mention that I didn’t read the blog entry from Carolyn…

Waki’s comments are tangential (which is a nice way to say “unrelated”) to my post. I’m not talking about a situation where you innocently wandered two meters across some invisible line and then find yourself subject to swooping legal vultures. People have (or should have) broad rights to do what they want with their land, and that includes (or should include) the right to its exclusive use, if that’s what they want.

Maybe they locked the gate and put up signs because they want to walk around naked without others seeing? Maybe they don’t want you to walk through their marijuana garden. Maybe they have pets or other animals that could cause harm to random people showing up unannounced, or would be spooked by them. Maybe they have gold nuggets or diamond deposits and want to keep them for themselves. Maybe they suspect that there are old wells or mine shafts that pose a serious danger and haven’t yet had a chance to fully ensure safety. Maybe they just want their privacy. It doesn’t matter why… what matters is that they locked the door and someone picked the lock, and so I think that someone should bear a heavy weight of punishment.

By the way, it’s an entirely different subject as to whether specific properties should be privately owned (e.g. some people feel that certain properties are the heritage of all, such as beaches). I mention this unrelated subject merely to ward off the discussion heading in that direction. —Jeffrey

— comment by Teemu on January 30th, 2009 at 3:13pm JST (8 years, 11 months ago) comment permalink

“I think people should chill out in general. Because the law gives you a right to sue someone for “trespassing” doesn’t mean you have to use it disproportionately and go to the courts and waste time and money, this is too precious. What became of good manners?”

Good heaves, so trespassing IS good manners?! As I read it, at least one of the points that Jeffrey tries to make above is that this isn’t a matter just of law but of manners and upbringing, of innately understanding what is right and what is wrong.

Why didn’t Ben Ham simply ask the owner for permission? And if the owner had said no, what is so hard about accepting that? Ben Ham would not have died. He would not have suffered serious personal injury or loss. This was an open-and-shut case of greed and self-interest on the part of the photographer.

Other photographers may think he’s done something cool or special. I have no doubt that if you asked a hundred people on the street their opinion (“would you be OK with somebody entering your private property and taking pictures?”) you would get an overwhelmingly negative response.

— comment by Dan on January 30th, 2009 at 6:40pm JST (8 years, 11 months ago) comment permalink

Dan, I didn’t say trespassing was good manners, I said it was NOT. As is good manners to show some restraint in dealing which such acts, in a common sense fashion. We’re all breaking laws here and there, don’t tell me you didn’t drive faster than the limit. When the setting is right the cop doesn’t pull you over for it because everybody drive the same speed and there’s no risk. Since I see Jeffrey is in Japan, over there they have very little crime because everybody exerts some restraint both in committing offenses and also dealing with it.

To go back to the photog’s case, sorry for digressing, yes he is wrong, yes he jumped over a fence or even worse picked the lock. Yes going to the court is justified, IF there was an attempt at resolving out of court before, and IF the foundation is not trying to make money out of it. It looks like it’s the case so it’s all good and I side with the foundation. Now what if he took that shot from outside the property? That’s a whole different case in my opinion.

In the photog’s case, HOWEVER, he actively sought trespassing and this is not acceptable and the foundation in right in wanting to stop him from publishing the pic, and apparently they had to go to the courts because he would not enter a gentleman’s agreement. And kudos for not asking a share of it (apparently), because that would be very hypocritical (“you can’t exploit the pic commercially but give me a share”)

— comment by Wako Niko on January 30th, 2009 at 10:46pm JST (8 years, 11 months ago) comment permalink

If you want to have your blood boil, go to this link from time to time.

http://overlawyered.com/

— comment by Bob on January 30th, 2009 at 10:55pm JST (8 years, 11 months ago) comment permalink

The United States has always been known as a country that is litigation mad.
People sue others for the most inane reasons, and sadly because the way the US legal system is arranged, the more the parties receive, the higher the fee the lawyers receive.

Not fair? Perhaps, however the same brand of stupidity is sadly migrating here to Canada.

Bottom line, so what if the person trespassed? Tell him to keep his mouth shut and market the image.
Unless physically caught in the act and there is hard physical evidence the people
going after the photographer are money-mad and just plain dumb, IMO!

Mind when all is said and done , all the argument is really about money, isn’t it?

Tell that to the people who were sued, and been sued and are now buried six feet under
due to related problems.

Does it really matter?

— comment by Bryce Lee on January 31st, 2009 at 12:03am JST (8 years, 11 months ago) comment permalink

Re: Bryce Lee’s comment.
“Bottom line, so what if the person trespassed? “

Bottom line – the man blatantly ignored signs, fences and a locked gate saying – don’t do this! That is not a “so what”, that is violation of privacy and property rights. And he shouldn’t be rewarded for it. I would be VERY upset if some guy jumped the fence into my back yard to take a photo of my roses! I don’t care how pretty his shot was.

“Unless physically caught in the act and there is hard physical evidence the people
going after the photographer are money-mad and just plain dumb, IMO!”

Umm, I consider a photograph pretty good hard physical evidence. And in this case, they were NOT after money. They did not sue for money. They sued to keep the trespasser from profiting from his trespass.

I agree with you that people in the U.S. especially are sue-happy to a ridiculous degree. But I don’t think this case can fall into the idiot lawsuit category that has poisoned our legal system and made people who are involved in a small no injury car accident feel like they won the lottery. This is a case of a photographer deciding that “no trespassing” didn’t apply to him, and he was rewarded for it. THAT’S the problem.

— comment by Marcina on January 31st, 2009 at 12:46am JST (8 years, 11 months ago) comment permalink

Greetings to Kyoto, Japan from Oslo, Norway!

All your remarks are spot-on, Jeffrey, both legally and — far more importantly — morally. That photographers now are unjustly hounded in ridiculous ways in some jurisdictions– e.g., shooting kids in a park in the UK, which I now believe is “very problematic” — is no reason to knee-jerk react against perfectly valid restrictions, like trespassing on private property. The sanctity of individual rights logically precedes photographer’s more narrow rights to snap away in any given location.

That aside, let me issue you with a general “Thank You!” note for your fine blog! I’ve learned good things and discovered good stuff through your blog, which I now visit several times a week. So keep up your shooting, coding and writing!

— comment by Klaus Nordby on January 31st, 2009 at 2:12am JST (8 years, 11 months ago) comment permalink

You know, if you really thought what Mr. Ham did was wrong you could always send him an email by using his Contact link on his home page. I’m not going to post the link here, it’s in the original photo attorney entry.

What makes you think he’d care to hear my opinion? —Jeffrey

— comment by Martin Dawe on February 3rd, 2009 at 6:58am JST (8 years, 10 months ago) comment permalink

I have to say, I personally agree with you completely. I think the guy shouldn’t in any way be able to profit from his crime. The lawyer doesn’t allow posts to express anything. His website does–at least it pretends to: I’ve tried from 2 separate computers to send him an email and his website is broken. So, I guess that’s his way of telling people that he doesn’t care what they think.

— comment by Martin Dawe on February 3rd, 2009 at 12:09pm JST (8 years, 10 months ago) comment permalink

I don’t know enough about this case to have a useful opinion about it, but I do know that some of the best photography that I’ve seen has involved some illegal trespassing.

Of course, and I’ve stepped onto someone else’s property for a shot myself. The point is partially that I don’t think I’d climb a locked gate, but even more so, it’s that I’d have the maturity to apologize when I was called on it. This guy not only showed no class and no respect, he actively flipped them a virtual finger… “screw you… what are you going to do, sue me? Bwahahahahaha….. “. —Jeffrey

— comment by Andrew S on February 6th, 2009 at 6:45pm JST (8 years, 10 months ago) comment permalink

[ I have verified that this comment really did come from Benjamin Ham —Jeffrey ]

I just came across this blog and thought I would add my side of this story. Some of the background concerning trespass on the property. This property was not marked no trespassing. I did not climb over a fence nor gate to enter it. The row of trees are on the road and appear to be the forgotten entrance to a once grand estate. When the issue arose, I offered to donate a good portion of the proceeds to the foundation. This offer was met with a resounding no and a demand for my negative. I donate a tremendous amount of work to different charities, over $30k last year alone. This back and forth continued for almost a year with no results. As for the trespass claim the foundation claimed they were bound by the property grant prohibiting any photography on the property. In discovery this turned out not to be the case as they rented the property for the filming of the movie The Patriot. Other events occurred there and they advertised the property on their website for movie scouting. In the end, I did donate a goodly sum of money to the foundation. Thank you for the opportunity to add my side. Benjamin Ham

— comment by Benjamin Ham on June 20th, 2009 at 8:41pm JST (8 years, 6 months ago) comment permalink
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