St. Louis Photographer Sues Authorities over Her Right to Shoot Public Park Portraits

Feb 25, 2015

Liron Samuels

Liron Samuels is a wildlife and commercial photographer based in Israel. When he isn’t waking up at 4am to take photos of nature, he stays awake until 4am taking photos of the night skies or time lapses. You can see more of his work on his website or follow him on Facebook.

St. Louis Photographer Sues Authorities over Her Right to Shoot Public Park Portraits

Feb 25, 2015

Liron Samuels

Liron Samuels is a wildlife and commercial photographer based in Israel. When he isn’t waking up at 4am to take photos of nature, he stays awake until 4am taking photos of the night skies or time lapses. You can see more of his work on his website or follow him on Facebook.

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Is a ban on professional photography in a public park in violation of the First Amendment?

According to Photographer Josephine Havlak and two of her clients, the small village of Twin Oaks should not be allowed to ban professional photography in the village’s only public park.

The ban was implemented after a county executive’s failed attempt to impose a $2,000 yearly permit fee, says Havlak.

The village clerk, however, blames photographers for this situation, in a case that could have a deep impact on the entire industry.

The current village ordinances prohibit commercial activity in the park, and while photographers are not the only ones affected by this rule, they do get a special mention in the park’s signs. “No commercial activity including commercial photographers” state the signs, leaving little room for doubt as for who is the main target of this ban.

Joining Havlak in the lawsuit are her friends and clients, William and Mary Hill, who want to have their portraits taken at the park.

Claiming it is unfair to put a stop to professional photography while amateurs and “mom-tographers” are free to do as they desire, the plaintiffs wish to be able to photograph, and be photographed, in the park without being prosecuted for doing so.

It is important to clarify that when Havlak refers to “mom-tographers” she doesn’t mean soccer moms taking snaps of their kids:

“they do exactly what I do and are my direct competitors but charge a whole lot less. I don’t know how they do it, but they do. I hear that you can hire someone for $200/hour who will meet you at a park and take pictures of your family for an hour. They give their clients a full set of high resolution files. Many of them are good at what they do and feel just as passionately about their business as I do.they do exactly what I do and are my direct competitors but charge a whole lot less. I don’t know how they do it, but they do. I hear that you can hire someone for $200/hour who will meet you at a park and take pictures of your family for an hour. They give their clients a full set of high resolution files. Many of them are good at what they do and feel just as passionately about their business as I do.”… they do exactly what I do and are my direct competitors but charge a whole lot less. I don’t know how they do it, but they do. I hear that you can hire someone for $200/hour who will meet you at a park and take pictures of your family for an hour. They give their clients a full set of high resolution files. Many of them are good at what they do and feel just as passionately about their business as I do”.

Havlak also explains why the portraits should be allowed:

Parks are public spaces and by definition are open to the public. I am NOT a commercial photographer whose photographs are used for commercial purposes such as advertising. I am hired by families, and my photographs are for private use only. My photographs are for the private enjoyment of my clients who hire me to do a better job of preserving the memories of their families”.

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Josephine Havlak

Havlak emphasizes that banning professional photography in the park will not only be unfair to photographers, but also to the clients who are basically “the public”.

“Those parks are public places, and if you want to have a memory of your family created in those places, why shouldn’t you?”

Regarding the impact on photographers specifically she adds:

“This kind of assault on photographers is going on around the country.

I can see Twin Oaks not wanting busloads of people coming in there, but for portraits? By and large, we’re artists. It’s not something that hurts these parks in any way.

Up until the last five years or so, portrait photographers were never asked to pay fees to parks for this reason. Two years ago Charley Dooley [previous County Executive of St. Louis County, Missouri] proposed charging portrait and wedding photographers $2,000 per year as a permitting fee to take photographs in ANY and ALL of the St. Louis County Parks. In addition, they would also pay a per time charge for each client they photographed in any of the County parks. There was an outcry, and this idea was dropped.

This is a classic example of government regulations making it harder and harder for small business to operate. I hate to file a lawsuit, but I feel that it is necessary in order to preserve the ability of all portrait and wedding photographers to make a living for themselves while at the same time preserving the memories of their grateful clients”.

As for the violation of the First Amendments rights Havlak said, “Public parks are the quintessential venue for free speech and expression. Parks are places where free speech is almost never limited which is why parks are used for protests, rallies, etc”.

The lawsuit was filed against the village of Twin Oaks, the village clerk Kathy Runge and St. Louis County Police Chief Jon Belmar.

The only response I have come across so far was by Runge, who stood beside the current ordinances, stating that numerous residents have complained the park teems at times with portrait photographers and their clients:

“Photographers tend to come into the park and take over. It’s become quite a crisis. We’ve never written a ticket to anybody. We just make them aware of our ordinances and ask them to leave”.

The general penalty for violating the village’s ordinances is a fine of up to $1,000 or up to 90 days in the village or county jail, so it is understandable that Havlak and the Hill’s don’t want to risk being the first to be cited.

Havlak, however, disagreed with the clerk’s statement:

In my experience professional photographers are MUCH more careful to use locations carefully and follow the rules – after all, we want to be welcome each time we come back with our cameras. I would never ask a stranger to move so that I could use a location for a portrait. How rude!! It is usually Uncle George who stomps on the flowers in his zeal to capture that moment at the wedding, not us pros.In my experience professional photographers are MUCH more careful to use locations carefully and follow the rules – after all, we want to be welcome each time we come back with our cameras. I would never ask a stranger to move so that I could use a location for a portrait. How rude!! It is usually Uncle George who stomps on the flowers in his zeal to capture that moment at the wedding, not us pros”.

The Courthouse News Service has summed up the plaintiffs’ motion after reviewing the suit:

“The plaintiffs seek declaratory judgment that the ordinances are unconstitutional, and want the defendants enjoined from enforcing them.

They say the city law that bans commercial activity is unconstitutional because it is not content-neutral, not necessary and not narrowly drawn.

Nor, the plaintiffs say, does the village have a compelling interest in banning People from hiring commercial photographers in the park”.

In an email to me Halvak said that all photographers need to take a stand, and that she filed the lawsuit for the greater good, as well as herself:

“I am filing this lawsuit on behalf of all portrait and wedding photographers in the United States.  Two years ago our county executive, Charley Dooley, tried to shut us all down by imposing a $2,000 per year permitting fee plus a per time usage fee of several hundred dollars.  Fortunately that idea was shut down.  Since then I have read many blog posts about this happening around the country, and when I saw this sign, I decided to take a stand”.

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Twin Oaks

 

Honestly, I’m having a hard time completely agreeing with either side.

I’m a firm believer that people should generally be allowed to do whatever they want as long as it does not negatively affect other people. I feel the same about photographers in public spaces.

That being said, I can understand how a photo shoot, let alone a few, can quickly become an unpleasant experience for the other visitors of the village’s small (and only) park.

I guess what tips the scales as far as I’m concerned is that no attempt was made to stop amateur portrait sessions and that the county wished to make money off the professional photographers.

I have no knowledge regarding other photographers in the area, but Havlak states that she works with natural light when possible. I think this makes it safe to assume that she does not carry a lot more gear to a portrait shoot than an advanced amateur would, so it’s not as if she’s clogging up the park with a million light stands, flashes, cables etc. I also agree with her assessment that a pro will usually be more careful and aware of his surroundings than an excited amateur.

As for the attempt to monetize off of the professional photographers working in the park, I find this to be the most annoying. Either photographers prevent visitors from enjoying the park or they don’t. Photographers paying the county thousands of Dollars a year will not make visitors’ time at the park any more pleasant. You’ll notice that photographers weren’t blamed for causing actual damages to the park, so it’s not as if the money was required for additional upkeep and maintenance.

If photo shoots have become an ongoing problem in the park, I completely agree that a solution should be found. That being said, I don’t believe there should be any differentiation between professionals and amateurs and the solution should address the problem directly.

A possible fix could be to allow photo shoots only during weekdays, or maybe limit the amount of simultaneous photo shoots.

Plain and simple, money should not be part of the decision to allow or ban non-commercial photography in a public space such as a village park. Perhaps nominal fees to cover secretarial costs or what have you, but definitely nothing near the amounts that have been mentioned.

Now, although I’m confident that a fair solution can be found to the overcrowding problem of the small park of Twin Oaks, we must remember that this lawsuit is about a lot more than a park in a village with a population of 394.

It won’t be immediate but the consequences of the court’s ruling, either good or bad, could possibly affect legislation in your area down the line.

[via St. Louis Post-Dispatch | Images: Sam Howzit and stevehager]

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Liron Samuels

Liron Samuels

Liron Samuels is a wildlife and commercial photographer based in Israel. When he isn’t waking up at 4am to take photos of nature, he stays awake until 4am taking photos of the night skies or time lapses. You can see more of his work on his website or follow him on Facebook.

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28 responses to “St. Louis Photographer Sues Authorities over Her Right to Shoot Public Park Portraits”

  1. Michael Turcotte Avatar
    Michael Turcotte

    Well if she sees these mon-togs in the park , call the police and have them fined. That will put an end to her “competition”. If they really, really wanted a park picture, just have the family pay to rent the park.

    She is just like all the whinny “It is my RIGHT that you pay for MY studio space. I don’t care is MY BUSINESS is interfering with your enjoyment of MY FREE STUDIO.” photographers. How would she feel if I ran a food truck in her driveway?

    1. Uncle Herbie Avatar
      Uncle Herbie

      Damn that’s one stupid response.

      She already pays for the park with taxes as well as the taxes from family who desires their portraits taken in the park. It’s a PUBLIC place paid for by the PUBLIC and like it or not professionals are part of the PUBLIC and their clients are part of the PUBLIC. Furthermore, the photographer likely pays more taxes than the mom-tographers because she has to file and pay state sales tax along with different taxes and fees for being a business owner. The mom-tographers are breaking the lay because they are charging for services and not declaring the income therefore not contributing the the upkeep of the park because they aren’t bringing business revenue to the city/

      And your analogy with the food truck? Asinine. Her drive way is her personal property, on which SHE pays taxes or rent, not YOU. You have no right to sell anything from her PRIVATE property. Hell you have no right to even step on her driveway without consent.

      Do you understand the difference between public property and private property?

      Don’t you people think before you type?

      1. Michael Turcotte Avatar
        Michael Turcotte

        PUBLIC PARK – PRIVATE BUSINESS. She is paying taxes for personal use not business use. Do you understand the difference? Why should I subsidize her business expenses?

        Apparently you have never been in a PUBLIC park with 8 wedding parties, half a dozen senior shoots, and a never ending stream of family mini-portraits. Even the people renting the shelters for family reunions get over run. It is one thing to have a family reunion taking pictures on a bridge and another to be told “it is my turn to shoot on the bridge, I have clients waiting. Get off”. June through August the park is unusable Thursday to Sunday.

      2. Joe S Avatar
        Joe S

        Read before you type. He said parking his food truck in front of her house on a PUBLIC street. He said nothing about private property.

  2. Travis Gauthier Avatar
    Travis Gauthier

    90 days in jail for taking photographs on public property. That’s where we are these days. WTF>

  3. Chad Keith Avatar
    Chad Keith

    We need to buy a huge lot of land and make a photography park! lol

    1. Jayson Carey Avatar
      Jayson Carey

      and then never go there…

  4. Mark Bienvenu Avatar
    Mark Bienvenu

    Seems like failure to secure a permit would be a civil or administrative violation, not a criminal one. Fine, yes. Jail, no.

  5. Travis Gauthier Avatar
    Travis Gauthier

    Or how about we respect the right to create on public property as established by the constitution. Starting to think we need to bring back that Ansel Adams law that was thrown around.

  6. Bernie Welch III Avatar
    Bernie Welch III

    Nice shot of columbus.

  7. Chuckie Delano Avatar
    Chuckie Delano

    I agree that everyone should have access to public parks but when you are using the park for commercial purposes for a period of time and no one can access the area around your photo shoot, you should have to pay a fee for restricting the access to other patrons. I know the fountain at Forsyth Park in Savannah gets inundated with pro photographers during wedding season. The photographers pay a fee but citizens are not allowed near the fountains during the shoot. Some weekends there are wedding shoots back to back and no one gets to enjoy the fountain area or get their own personal pics. It is a shame for any visitors to Savannah that arrive at the park during those times because they will not be able to get their pictures taken near the fountain.

  8. blanddragon Avatar
    blanddragon

    I too, like the author, have mixed feelings on this. A business using a public space for profit is an abuse of the public space. Taxes are paid by the citizens for these parks, so perhaps it should be up to the citizens and not some official with budget issues. Permiting and scheduling is probably the solution. The food truck comment here brings up an issue that in my city is handeled by permits and regulations regarding times of operation and designated locations for them to operated. I like Chad’s photog parks idea. I mean we have dog parks, right?

  9. drhaasmn Avatar
    drhaasmn

    I can see both sides of the issue. The $2,000 fee seems a bit on the high side, around me, the fee averages about $200 per year – some are more – some are less – some offer same day $25.00 permits – some don’t.
    What has ruined this for everyone is the photographer who comes into the park, tells patrons to get out of “their” spot / shot, takes 30 minutes to set up a single shot, has 3 light stands and a reflector (maybe carried by an assistant) and then hogs the prime spot for 2-3 hours.
    Last year one of the local boards voted to implement a fee for usage – the debate centered on the fact that a business – therefore commercial usage – was making money off of a “public” park and not paying for it. Translation – we want a piece of the action. The debate started with companies using park land for free who offered similar services to the park – ie yoga classes, summer programs, etc… but legal told them if they limited it to that they could be sued for not making it a blanket rule, which they did.

  10. Bob Simmons Avatar
    Bob Simmons

    Know your rights – aclu.org/kyr-photo

  11. Jon Peckham Avatar
    Jon Peckham

    Al of these local governments are trying to make money off of photohraphers by charging fees and demanding permits. This is corruption and greed. Stand up photographers. Don’t pay their fees.

    1. Katrina Suzanne Eowyn Hanneman Avatar
      Katrina Suzanne Eowyn Hanneman

      the local governments pay a ton of money in park upkeep. Taxes don’t cover the full costs. It has nothing to do with corruption and if a photographer wants a pretty place to shoot and make money off of, they should put in money to build their own park.

      1. Jon Peckham Avatar
        Jon Peckham

        Ridiculous! You are so wrong.

      2. Jolynn Keutzer Bales Avatar
        Jolynn Keutzer Bales

        So, if the photographers stay away, they will no longer have to spend money on upkeep?
        Of course they will.
        Photographers do no more “damage” than a flock of running kids, or people with their dogs, or picnickers leaving trash behind.

        And “put in money to build our own park”? Yeah. We did that already. It’s called “taxes”….the same taxes which pay for that upkeep of which you spoke.

  12. Jeffrey B George Avatar
    Jeffrey B George

    I think one of our photographer organizations should step in and finance this case.

  13. Katrina Suzanne Eowyn Hanneman Avatar
    Katrina Suzanne Eowyn Hanneman

    WHAT A MORON. public parks are paid for by the public, and aren’t there for photographers to use as backdrops so they can make money. Get a commercial license and do it the right way.

    1. Jon Peckham Avatar
      Jon Peckham

      What a stupid thing to say.

  14. Rick Avatar
    Rick

    “$1,000 or up to 90 days” will easily be struck down as not commensurate with the level of the crime.

  15. Doug Gross Avatar
    Doug Gross

    I had a really stupid one in downtown Charlotte, NC. I was shooting a model and I was told I wasn’t allowed to do that. However, a family 20 feet away was shooting picture after picture. So I asked the security guard what the difference was, and he told me it was because I had a “professional” camera. Really???

    It’s hard to fight stupid.

  16. Doug Gross Avatar
    Doug Gross

    I had not heard of the Ansel Adams Act, however below is a link. Last activity on the bill was 1/2/2015, so maybe if you all drop a note to your congress -person they might move it along.

    https://www.congress.gov/bill/113th-congress/house-bill/5893/text

  17. JOhn C Avatar
    JOhn C

    As a technical issue it looks like you pasted your first quote several times (or the person was rambling). You may want to look at that

  18. JOhn C Avatar
    JOhn C

    MY biggest issue with this is the mom-tographers. If they are making money that to me makes them commercial enough to have to pay the fee. Everything else aside, the government is giving them an even bigger competative advantage as they don’t have to pay the fees. Whether or not they are “professionals” they are profiting just as much (maybe more since they may not be paying taxes on that income) as the pros.

  19. Sheltonus Avatar
    Sheltonus

    The subject is good but the writing atrocious. Duplicate sentences abound. Couldn’t force myself to finish. Torturous.

  20. KC Avatar
    KC

    I think the key phrase here is “hired”. It’s not the camera type or whether the images are for private use. Public spaces may be public but using them as a “free outdoor studio” crosses a bit of a boundary. It’s a bit like needing a press pass for an outdoor event, even if you’re not with the press. (I’ve run into that.)