Musings on Photography

Trespassing 101

Posted in ethics, landscape by Paul Butzi on January 25, 2007

I thought I’d take a moment to point out a factual error in the comments on the The Photos Not to Take post.

Is it possible that the fence is intended to keep something in and that the land owner has no problem with you on his property taking pictures? In the absence of a “no trespassing” sign, I am more inclined to think the owner would not mind.

This will vary by jurisdiction, but in most places in the rural US, walking into a field that is clearly under cultivation is trespassing by definition,  regardless of whether it’s posted or not, regardless of whether it’s fenced or not.

By the same token, land that’s fenced is presumed to be under cultivation.  Jumping the fence, regardless of whether the property is posted with signs, is again by definition trespassing.

In some jurisdictions, the burden of buying signs that meet the legal posting requirements is eased by specifying a mark which has the same legal meaning as a “No Trespassing” sign.  In most (but not all) cases, the specified mark is a paint blaze around eye height on a tree trunk, but requirements governing the color, size, and positioning of the marks vary wildly from one place to another, as do the spacing requirements for signs/marks.

In rural areas, property boundaries are often long (e.g. miles).  No farmer is going to post signs every fifty feet along his fence line if the law says it doesn’t mean anything more than the fence already does, just because someone who is ignorant of the law might feel the absence of a sign is an implicit granting of permission.  By the same token, no forest owner is going to erect a fence (and interfere with movement of wildlife) or nail signs to trees (and risk a nail becoming hidden in the wood) when a simple paint blaze conveys the same message, costs less, is easier to maintain, has no impact on wildlife, and doesn’t damage the trees.

I’m opposed to photographers trespassing.  But, you’re going to trespass, I think it only makes sense to invest minimal effort into researching exactly what the law is in the jurisdiction in which you’re photographing, so that you understand what the fence/signs/paint blazes actually mean.

People erect fences for a variety of reasons, but in the most general sense, they put up a fence to keep things on one side of the fence from mingling with things on the other side.   Claiming that you can divine the owner’s intent from subtle features of the barrier is arrogant, especially when you don’t understand the strict meaning of the clues you’re interpreting.

6 Responses

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  1. Doug said, on January 25, 2007 at 2:47 pm

    Section 602 of the California Penal Code covers most of this territory. My (lay) understanding:

    In California, a fence is sufficient.

    Signs posted 3 per mile and at every road and trail entrance are also sufficient, even without a fence.

    Even without a fence and without signs, cultivated land is automatically protected.

    Counties can also choose to protect vacant or unimproved land bordering residential property, even without fence and without signs.

    Technically, crossing the fence without permission isn’t “trespassing”. It’s “unlawful entry” or some such. Trespassing is the refusal to leave when asked.

    There are other rules associated with entry into buildings and such. Not relevant to this discussion.

    The penalty for unlawful entry (or whatever the correct legal term is) is a $75 ticket on the first offense, $250 on the second. After that it’s a misdemeanor crime, as is trespassing.

  2. Tommy Williams said, on January 25, 2007 at 2:51 pm

    Your series of posts about trespassing has been enlightening. I tend to shoot what is around me in my life — scenics, I guess you could call it, or slice-of-life, or something like that. I don’t go out looking for pictures but try to find them in my daily life. So I have never thought about fences and signs before as part of photography.

    Before reading what you have written on the subject, my gut reaction (had you asked me) would have been very much in favor of the photographer getting the shot. From new security concerns to concepts like a “visual copyright” on buildings, it seems there’s a new area placed off limits for photographers every day. It feels downright oppressive when I think about it.

    But you’ve helped me put myself in the shoes of a property owner (and since I own a house, I am a property owner too) and see that fences aren’t just arbitrary: they are about far more than just keeping cattle from getting out of the pasture — and you’ve reminded me that property owners are people, not concepts.

    And, in so doing, by pointing out the validity of one set of limits, the sense of oppression has actually lifted for me. Rather than shrinking my sense of photographic possibilities, by thinking about these limits I’ve seen a whole new set of ideas.

  3. Eva said, on January 25, 2007 at 3:56 pm

    This is a very civilized approach, which actually works and has for hundreds of years. Rights and responsibilites are well established and problems rarely occur.

    From the website of the Swedish EPA

    Welcome to the countryside!

    In Sweden, everyone has the right to be out in the countryside– visitors from abroad as well as Swedish citizens. We call this “the right of public access”. It is a benefit not found in a great many other countries. One may also look upon the right of public access as a great freedom. But our freedom in the countryside must not infringe upon the freedom of others.

    The right of public access requires consideration, responsibility and good judgement. We must not damage the landscape or animal life, and we must show consideration for both landowners and for others who are out in the countryside.

    The essence of the right of public access is concisely expressed by the phrase, “Do not disturb, do not destroy”.

    On this web site, we have summarized the most important things to know about the right of public access. We suggest that you begin with the section, What is the right of public access?, which will make it easier to understand what that right means in different contexts.

  4. Ed Richards said, on January 25, 2007 at 9:31 pm

    I think the Brits also have the concept. We do not in the US, beyond some easment provisions specific on some land with traditional walkways.

    > “visual copyright” on buildings

    Fortunately, Congress has not bought this concept yet. If you can take a picture of a building without violating some other law, like trespass, you can use.

    I would like to see someone (not me) challange some of the stupid homeland security rules on photography. I still cannot get over being told that I cannot photograph the cruise ship I am getting on from dock, when 5 minutes later I am on the deck and free to photograph the dock and everything else.

  5. Lynn said, on January 26, 2007 at 8:15 am

    What we are really talking about here is character. Its a personal thing that everyone has to determine for themselves. Those of us who would walk over a posted sign and essintallly break the law would no more walk up and shoot someone. But making a personal choice of which laws to obey and which ones to set aside to fit your needs at the moment is back to that character thing.
    J C Watt, the ex-congressman form Oklahama said it best for me. Essintially, Character is what you do when no one is looking.

    We must remember we are taking picturs, or we are making photographs, or we are making art or however you want describe or justify your passion. But we are not curing cancer, it’s so down on the list of important things in the world.

    Lynn

  6. Sean said, on June 5, 2007 at 3:29 pm

    I’m ashamed to admit that I’ve trespassed for a handful of images…

    http://www.digiteyesed.com/portfolio/images/2005/09/00725.php
    (Waited until the crops were off the field before walking out to get the image. Since contact the owner and got his okay.)

    http://www.digiteyesed.com/portfolio/images/2005/12/00920.php
    (Saw the storm clouds framing the barn and just couldn’t let it go. I’d love to find the owner if only to give him a print.)

    One trick that worked for me was that I sent in a letter to the local paper telling people with old pioneer homesteads on their property that I would exchange shooting rights for free family portraits. I had about 40 people take me up on the offer, and I even found some awesome locations that aren’t visible from any road.


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