In case you missed it, I posted a little blog here called These Photos Got Me Kicked Off A Beach In Toronto. It blew up on the first day that I posted it, garnering a ton of attention on my social media accounts. On day two, it blew up further when PetaPixel picked it up and then it spread like wildfire to other news aggregators, Reddit, Twitter, and other places. PetaPixel’s article has nearly 400 comments as of this writing, and over 200 more on their Facebook.
The commentary on the posts varied from supportive to combative and contained everything from “this should never happen” to “the photographer is an entitled jerk”. While I replied to a few comments here on the blog and on my Facebook and Twitter, I didn’t comment on PetaPixel and other external sites to avoid fanning the flames. What was clear, though, was that some parts of my posts were a bit confusing, and there was also a lack of understanding by the commenting populace about the laws of Toronto and the terms and definitions contained therein. I’m going to address those comments here on the blog to keep everything in one place and go over some additional details about the incident as well.
The first thing to note is that PetaPixel altered the article slightly from its original form. My emphasis on certain words, presented here on my blog in italic text, were rendered as plain text on PetaPixel’s site. While this is not huge in and of itself, I used that styling to convey the tone of the incident accurately. Additionally, there were other little changes PetaPixel made such as changing the phrase, “Ashley and I hit the beach” to, “My model Ashley and I hit the beach”. This made it sound like Ashley is a professional model, or that I hired her, or that some credence was given to the notion that this may have been a commercial shoot. To clarify, Ashley is a good friend of mine and not a professional model. I found her some years ago on Instagram (she’s not an “Instagram model” either, guys) where I saw her selfies and asked if she’d like to get together and make some photos for fun. We’ve produced photos together a number of times, none of which were for any commercial purpose, and none of which had any money change hands or see either of us benefit monetarily in any way. There was no makeup artist, no stylist, no photo assistant. Believe it or not, some people just make photos for fun! It’s true. Most of the people I photograph are not “models” — they’re just my friends. And yes, I’m fortunate to know a lot of good looking people who love being photographed.
“Printouts Will Save You”
A large number of commenters naively suggested that I print out a copy of the applicable laws and present them to the appropriate authorities if I’m ever questioned. The notion that everything will be fixed by handing a copy of the laws to a person who should already know them is laughable. It reminds me of a line from comedian Donald Glover (you might also know him as rapper Childish Gambino), where he talks about the nature of communication between a man and a woman in a relationship:
“When a sentence begins with ‘What did you mean by that?’ It’s not going to end with the person going ‘Oh now I know what you mean by that.’”
Likewise, when an interaction begins with, “You’re breaking the law!” it’s not going to end with, “Oh, I see now that I was wrong to accuse you of breaking the law. Thank you so much for showing me how to do my job.” It’s just not. No matter how many gracious, kind, respectful enforcement officers there are in the world, that’s just not a thing that happens.
“How Much Would A Permit Have Cost?”
A few people inquired what a permit would have cost. If I was shooting “commercial” photography, which I wasn’t, the fee charged by the City Of Toronto can be found on their website:
“Commercial Still Photography in a park fee: $316.78 per 2 hour session, plus HST”
That’s $357.96 with taxes included, which is actually less than the $350 fine (if accurate) that I was threatened with. Surely this would make some commercial photographers wonder if it’s worth it to pay the permit fee, since even if they get caught without a permit, the fine would still be less.
Some people relayed experiences from their own cities, where permit fees tended to generally be lower (Toronto was amongst the highest of the examples cited), or where different tiers of permits were available depending on a number of factors. Art student permits, for instance, were cited as one instance where lower permit fees applied in some places. I heard from one person whose city recently implemented a yearly permit for a specific park, similar to an annual hunting or fishing licence. Not a bad idea. I’d strongly urge Toronto to look at reworking the entire permit system, rather than the one-size-fits-all system currently in place.
To further highlight the ridiculousness of Toronto’s permit fees, contrast it with the fees Toronto requests for a picnic. You can have up to 200 people at your picnic for a fee of $83 (all day, from 10am to 8:30pm). Two. Hundred People. Do you know how much space 200 people use, never mind the damage they could potentially cause? A single landscape photographer shooting commercially with a tripod, let’s say, uses only a very small footprint of space and is unlikely to cause very much if any damage at all. Yet not only is the $316.78 fee required for photography (for only two hours, not all day like picnic partiers), but the city also requires that the photographer provide proof of a private insurance policy in the amount of $2 million. Contrast that with the insurance requirements for a fire pit or outdoor oven at your picnic: no private insurance required, and you can buy insurance from the city for $27 for your event. No such graciousness is offered to photographers. It doesn’t need to be pointed out how much more damage and loss of life an out-of-control fire could cause versus a photographer.
This was my favourite accusation — commenters suggesting that I didn’t handle myself well or that I was otherwise stupid for not knowing the law. On the contrary, I’m well versed in many legal areas that relate to photography (copyright, contract law, usage rights, likeness rights, etc.) which very much includes the Toronto bylaws. I’m no lawyer and I don’t claim to know everything, but I know plenty. I think this accusation came about because of the tone I used during my conversations. For instance, in the conversation with Mr. Maintenance, I began by using the phrase, “I don’t understand” numerous times. It wasn’t that I didn’t actually understand what he was saying. But I wanted to make sure he understood what he was saying by having him spell out in detail what he was accusing me of. There’s a well-known YouTube video called Don’t Talk To Police. The major takeaway from it is that even if you’ve done nothing wrong, as soon as you offer up any unsolicited information about yourself or your activities, that information can be used against you. Though the video specifically refers to conversations with the police, the advice is useful when talking to many different kinds of people, including Mr. Maintenance. His first words to me were, “Where is your permit?”. But what if he wasn’t talking about photography and was talking about some other type of permit instead? If I immediately answered, “I don’t require a photography permit because this isn’t a commercial shoot”, all of a sudden I’ve just put a new idea into his head and given him ammunition to use against me. Hence I wanted to see exactly what I was being accused of before responding to the accusations. Logic! That’s also why I asked him questions about taking family pictures, and the difference between a phone camera and a DSLR — I already knew the answers and wanted to see if he did too. It quickly became apparent he had no idea what he was talking about.
“You Were Performing Commercial Photography”
The most forceful accusations from commenters came from those who insisted that I was, in fact, performing commercial photography, full stop. Their reasoning was varied, but mostly consisted of two arguments:
- It was commercial photography because I put the photos on my website.
- It was commercial photography because I had a light stand with me.
First, and most importantly, before I even address each point individually, is that the Toronto Municipal Code does not specify a prohibition on, or a permit requirement for, anything called “commercial photography”. Those words simply do not appear in Code 608-47: “While in a park, no person shall take or permit to be taken for remuneration any film, photograph, videotape or television broadcast unless permitted under the City’s film by-law and authorized by permit from the Toronto Film and Television Office”. In my research, I’ve been unable to find any reference to the term “commercial photography”, nor any legal definition of such that would apply in Toronto. (Except this page, which uses the word “commercial” as its title, provides no definition, and is governed under Code 608-47. It appears the term is being used colloquially.) If such a thing exists, please let me know and I’ll be happy to admit I’m wrong. Keep in mind, too, that those words first came out of the mouth of Mr. Maintenance, which is further proof that he didn’t know what he was talking about. He accused me of breaking a rule that doesn’t exist. Further, the word “remuneration”, which is used in the Code, is not defined by the city. The Code contains a large glossary of terms, clearly defined, so that there’s no ambiguity about the intention of the lawmakers. However, remuneration is not defined. It would likely take a legal challenge in court to get any clarity surrounding this.
Now then, that aside, let’s presume for a moment that, in fact, “commercial photography” was actually a part of the Code. Under this scenario, I’m faced with accusations that because the photos are on my website, that makes it a commercial purpose. I again did some research on this but I was unable to find answers that apply to the Canadian legal system. Two sources I came across both pertained to American law, but may have applicability here as well. One was from photographer Dan Heller. He notes that commercial use is generally considered supporting or advocating a particular idea, product, or service. The proof of advocacy is not confirmed just because photos are on display somewhere. I can sell these photos in a gallery or publish them in an art book and even that would not be commercial usage. Many thousands of photographers before me have done this and are secure with their actions under the law. I don’t even need to remit a portion of the money to the subject in those instances. The photos posted here would be interpreted by most people as examples of my work and not advocating hiring me as a photographer. For the latter to be true, a testimonial from Ashley (the subject) would have to be included along the lines of, “Ryan is a great photographer and I would strongly recommend hiring him for portraits.” In fact, nowhere on this site do I state that I’m available for hire (except as an aside in the original blog post). There are no lists of fees or rates, no availability schedule, nothing.
Second source. Consider this quote from Carolyn E. Wright of Photo Attorney fame: “If someone looking at a photograph would think that the person in it is promoting or endorsing a product affiliated with the photograph, then the use is commercial.” Look at these photos. What about them says, “I, the girl in the picture, endorse Ryan as a photographer you should hire”?
Lastly, to address the second point about having a light stand. Just to provide some clarity, the light stand was not in use, it was not standing upright, it was collapsed, and it was lying down flat on the ground (so it was unlikely Mr. Maintenance approached me because of that). That being said, even if it was upright, with a light attached, and was in use, that too would not have meant it was commercial photography, nor a photo shoot being done for remuneration. For one, there is no mention of light stands, tripods, or other equipment in Code 608-47. Many commenters jumped in to say that their own jurisdictions specifically branded equipment like this as being commercial and thus various laws and permits then applied. To the best of my knowledge, that’s not the case here. Perhaps Toronto is the rare exception to this, or perhaps I just haven’t found the applicable legal text (please point it out if you know it). Additionally though, it is entirely possible and reasonable for amateurs and hobbyists to own and use elaborate, expensive equipment like this. Even professionals can use equipment like this for a non-commercial purpose, or use “amateur” equipment for commercial purposes. (Look no further than these professional iPhone photo shoots.) Long before I had any income from being a photographer, I was just a hobbyist, or an advanced amateur, or an enthusiast — however you want to describe it. I owned multiple camera bodies, tripods, many lenses, lighting equipment, and all sorts of other gadgets. I probably carried more equipment with me to take vacation snaps and backyard flower photos than most photographers would for a wedding. I had accounts on all the popular photo sites back in the day — Photo.net, Flickr, etc. I had my own domain and website, for nothing else other than showing off my pictures to the world because I was proud of them (even though I was pretty lousy). To sum up, even though some jurisdictions may define the use of particular equipment as commercial photography, it’s a stupid way to determine that.
“Look At It From Their Side”
A number of commenters implored me to look at things from the government side of things, and empathize with the limited means they have to enforce the laws. Which is to say that it’s difficult for them to determine who is breaking the law, therefore harassing everyone is easiest for them.
But here’s the thing — their side is the one that bears the burden of proof. Proving a shoot is commercial is exactly what they would need to do for a fine to stick in court. The onus is not on the accused to provide an affirmative defence. Is the burden of proof difficult for them to achieve in this circumstance? It sure is, but that’s not my problem. The way the law is written here, “remuneration” is the key bit of proof required. Authority figures can’t just make up criteria on the spot like type of equipment or type of clothing to prove remuneration. I encourage our elected officials to draft better legislation, with more specifics, and clearer definitions so these issues don’t pop up again.
Additionally, some commenters suggested that I cut the authorities some slack on their lack of knowledge of various issues. For instance, a handful of people defended the worker at the permit office who didn’t know what a DSLR was, arguing that the general public doesn’t necessarily know these terms. And while that’s true of the general public, I’d argue that a person in charge of issuing permits for photography should know some things about photography. (You’ll recall I was taken aback by the worker’s lack of knowledge.) Having a basic working knowledge of your job isn’t an outrageous thing to ask. The permit office issues permits for all kinds of things, including picnics, dog walking, boot camps, and others. I’d expect them to have a basic working knowledge of the terms that go hand-in-hand with all these industries, otherwise I question the qualifications for the job they’re doing.
“You’re Entitled, You’re A Jerk, You’re A Noob”
Just a few of the names I was called. I guess I’ve finally made it!