[UPDATE January 31, 2016]: The photography blog PetaPixel published this article and it garnered a large reaction there and elsewhere on the web. There were many comments and criticisms of my post, and I’ve created a new post to respond. You can read that here: These Photos Got Me Kicked Off A Beach: UPDATE.
Flashback to last summer — July 2, 2015. The day after Canada Day. The day I got kicked off a beach in Toronto for taking pictures.
Ashley and I hit the beach at the Scarborough Bluffs at 5:30am, just as the sun was rising over Lake Ontario. It’s really quite a beautiful sight and the beach is a great place to watch it happen.
We snapped some casual pictures until 6am, when we were approached by a City of Toronto worker riding in a little plough/tractor thing. He had been scooping up debris left on the beach from the night before (mostly fireworks from Canada Day) and made a beeline for us when he saw us. He shut off his machine, hopped out, approached me, and demanded, “Where is your permit?”
“Permit?” I asked.
“Yeah, do you have a permit?” he asked back.
“I’m not sure what you’re talking about,” I responded.
Him: “You need a permit.”
Me: “Uhhh… Why?”
He shook his head in disbelief, visibly angry. “To take pictures!”
Me: “I don’t understand. I’m in a public place, on a public beach. Photography is not restricted here.”
Him: “You need a permit for photography here.”
Me: “Umm… so if I come to the beach with my kids for a fun day and snap pictures of them with my phone, I need a permit?” [I don’t have kids, I was just trying to prove a point.]
Me: “Okay, so I don’t understand the difference between that and what I’m doing here.”
Him: “You need a permit because of the type of photography you’re doing.”
Me: “Sorry, I still don’t understand. If a family comes here to have a picnic and they start taking photos with a camera like this [I hold up my DSLR], a permit would be required?”
Me: “That’s ridiculous.”
Let me interrupt here just to hammer home precisely how ridiculous this was. Thus far in the conversation, his insistence on a permit is based on nothing more than the type of camera I held in my hand, which is a downright stupid way of judging anything. The particular tool that someone is using for a task, whether it be a camera, a hairbrush, a car, or a pair of hedge clippers, should have no impact on whether or not that person is accused of running afoul of the rules. Amateurs and hobbyists often use professional tools, and professionals often use amateur tools. In most cases, nothing about the tools used tells anyone anything about the intended purpose of those tools. You can drive slow and safely in an outrageously expensive sports car, you can take amazing pictures with terrible cameras, and you be an awful hairstylist with professional tools and training.
Imagine someone goes to Home Depot to buy a hammer, and then, based on no other information of any kind, is accused of performing home renovations without securing a permit. Ridiculous, right?
It’s also worth noting at this point that this guy was not a bylaw enforcement officer. He’s just a maintenance worker who has no authority in these matters.
Suddenly, Mr. Maintenance has had enough of me and issues a threat.
Him: “Look, if you’re going to give me trouble, I’ll just call a bylaw enforcement officer and have him write you a $350 ticket.”
Me: “Whoa, that’s not necessary. I’m just trying to understand why you think I need a permit because my friend and I happened to come to the beach to snap some photos?”
Him: “Because you’re doing commercial photography!”
Me: “No, I’m not.”
Him: “Yes, you are! Look at all your equipment. This is a commercial photography shoot.” [My equipment, for the record, was the camera and lens in my hand, a backpack, a bag of clothes, and a light stand and a light. The light wasn’t even in use because I had forgotten the remotes to trigger it.]
Me: “No, it’s not. I’m not working for a magazine, an advertising agency, nothing of the sort. No money is changing hands. These photos are not being used for any commercial purpose, period. How can I prove to you that this is not a commercial photo shoot?”
Him: “It’s not right!”
Him: “It’s not right that you’re here this early!”
Me: “Excuse me?!” [I was genuinely flabbergasted at this point.]
Him: “No one would come to the beach this early unless they were doing a commercial photo shoot.”
Me: “Um, there are half a dozen other people on this beach right now, enjoying the sunrise, going for walks, and taking their dogs out.”
Him: “Look, if you don’t believe me, call 311! They’ll tell you that you can’t be here. Otherwise I’ll call the bylaw officer right now and you’ll get a $350 fine.”
Me: “I’m so confused. How can I prove to you that I am most definitely not doing commercial photography?”
Him: “Call 311. You can get a permit from them.”
So to sum up thus far, Mr. Maintenance, whose job is most certainly not enforcing bylaws, was convinced that “equipment” = commercial usage of photos. Even if the photos were for a commercial purpose, which they weren’t, Mr. Maintenance would have had no way of divining what the purpose of the images was. And how would he? Unless he had, in advance of the day and with extensive effort, somehow conducted an elaborate investigation and was able to procure some sort of documentation or contract between myself and another business that spelled out commercial usage of images I was about to take. But that clearly was not the case here, because not only would the aforementioned fantasy situation be impossible to actually pull off, but more importantly is the fact that this was not a commercial photo shoot.
Am I a professional photographer? Yes. Do I sometimes participate in commercial photography? Sure. Every time I shoot a wedding or a model hires me to produce images for her portfolio, then yes, that is a commercial exchange. Money changes hands. Contracts are signed. Even if the images are never publicly seen or published anywhere, a working professional using city property for his or her business must obtain the proper permission and permits (see here also). This is a situation I understand intently, and one that I respect and obey by securing the proper permits before proceeding. But this — this photo shoot on the beach at sunrise — this was not that.
You see, a photographer needs to keep his or her skills sharp. That means, among other things, constantly upgrading and testing equipment, trying out different techniques, styles, and lighting, and immense amounts of practice. I’m fortunate to know many models and we often collaborate for nothing more than fun and keeping our skills sharp. Some people go to the park and throw a Frisbee around for fun. Other people garden or crochet or drink alcohol or go lawn bowling or watch Netflix for fun. I take pictures for fun. It’s my profession and my hobby. And this hobby, with no commercial purpose, most definitely does not require a permit.
For reference, Toronto Municipal Code 608-47 states: “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.” No remuneration took place here, thus this part of the code is not applicable.
I picked up the phone to call 311 (essentially the City of Toronto’s customer service line) and Mr. Maintenance drove away. Luckily, at 6am, there was no queue to get through to 311 so I was able to speak right away to a rather nice gentleman. I explained to him what had just happened, and he asked me a couple questions.
311: “So, you’re not shooting a wedding or anything, right? Nothing formal like a graduation ceremony?”
Me: “Um, it’s 6am, so… no.”
311: “Okay, because if you were shooting something like that, you’d be dressed in something formal, right? What are you wearing?”
Me: [Absolutely perplexed at what my wardrobe has to do with anything.] “Um, I’m in shorts and a t-shirt. And my friend is wearing pants and a bikini top.”
311: “Haha, okay, so yeah, you’re fine. You’re not dressed formally.” [Again perplexed that wardrobe is somehow a valid criteria for determining commercial/permit applicability.]
Me: “Cool. And I’m not doing a commercial shoot.”
311: “Right. So if you’re not doing a commercial shoot like a wedding, you don’t need a permit.”
Me: “So how do I prove that I’m not doing that?”
311: “Well like I said, based on what you’re shooting and, you know, if you were shooting something formal, you’d be wearing something formal… wait, what park did you say you were at again?”
Again with the wardrobe. Why is what I’m wearing such a big deal in this situation?
Me: “Bluffers Park Beach.”
311: “Oh, okay, well I’m seeing here you don’t even need a permit for wedding or formal photos there anyway. That’s one of the parks that it’s not even required at.”
Me: “Oh, great! I guess that solves that then. So why did the other guy threaten me with a fine?”
311: “No idea. Oh wait, I noticed something else here… it says if you’re photographing an individual or a group for a commercial purpose, then you need a permit, even at the park you’re at. That’s city-wide.”
Me: “Right. But I’m not shooting commercial photos.”
311: “Right, so you’re fine then.”
Me: “Okay, but again, how do I prove it? How do I prove it to Mr. Maintenance or the bylaw officer?”
311: “Well… I don’t know. I’ll give you the number for the permit office and you can ask them. They’ll know.”
I called the permit office… which didn’t open until 8:30am.
So at this point I was a bit stuck. I could stay and keep shooting and risk an unwarranted fine, or I could cut my shoot short, call the permit office later, and try this again another day after it was all sorted out — a huge pain in the ass.
We cut the shoot short and left. Better safe than sorry.
I was too enraged with the situation to call the permit office right away. I waited a few days to collect my thoughts and to make sure I was going at it with a level head.
When I called the office, I gave them a brief synopsis of what happened (rather than the full transcript above, which would have taken way too long) and the first question from the permit rep was, “Well what kind of camera were you using?”
Not this shit again. How can the type of camera one uses possibly determine the legal usage of the photos? It doesn’t, but this bizarre criteria seems to be hard-coded into how the Toronto permit office (and everyone below them in the chain of employment) makes its decisions.
“Is it a phone or like… a professional camera?” she continued.
“It’s a DSLR,” I replied.
Permit rep (PR): “And what is that?”
Me: “Seriously? It’s a camera.”
PR: “So not a phone? Like is it a big one?”
Me: “No, not a phone. It’s a DSLR. You can buy them literally everywhere — Walmart, Amazon, etc.”
PR: “Okay, let me Google it… D-S-L-R? Is that right? Oh yes, I see it here. Yes, that type of camera is fine. You shouldn’t have been hassled unless you had like a stand or something?”
Wait, what? “A stand?” She meant a tripod. So the mere use of a tripod, a standard photographic tool (and one that spawned the selfie stick) determines whether or not I’m shooting commercial images?
Me: “I didn’t have a tripod.”
PR: “Okay, and you said you were there with a friend? You weren’t dressed formally or anything, right?”
Oh. My God. Not this shit again!
Me: “I was wearing shorts and a t-shirt. My friend was wearing pants and a bikini top.”
PR: “Oh, okay, well I don’t know why that guy was harassing you. He shouldn’t have been, and it’s not his place to do so.” [Mild vindication!]
Me: “Okay, so in the future, what can I say or do to prove to someone that I am not shooting commercial images?”
PR: “Well just get the name of who is harassing you and then call us.”
Me: “Right, but what do I say to them to prove my case? To avoid a fine?”
PR: “Just get their name and give us a call and we’ll straighten it out.”
Me: “But… but… sigh. Fine.”
And that’s where I’m at right now. I ended up going out with Ashley to a different beach a week later and we shot successfully at sunrise without trouble (in full view of a different guy doing beach maintenance). I’ll post those photos on the blog soon. But I still don’t know what to do if this incident happens again. If it’s 6am, I can’t just grab someone’s name and call an office that doesn’t open til 8:30am. I’ll likely get a fine and then either have to fight it or just pay it if there’s no appeal process.
What annoys me the most about this situation is that for some reason, the onus is on the photographer to prove that they’re not doing something they’re accused of, rather than the other way around. Why is that? If you’re caught for speeding in your car, there is likely definitive proof on a radar gun that you’ve committed that infraction. Law enforcement is able to prove you broke the law. They can’t just pull you over for no reason and say, “well it looks like you were speeding because you have a fancy car, so unless you can prove you weren’t, here’s a ticket.” That would be ridiculous.
And yet, in this strange world of permits and photography, there’s a presumption of guilt if I use a certain type of camera, bring a certain type of equipment, take pictures at a certain time of day, or wear a certain type of clothes. Apparently I can get a ticket at merely the whim of a bylaw enforcement officer, even though he or she would have no proof that my images would be used for commercial purposes. Unless a bylaw enforcement officer were somehow able to obtain an employment contract or contract for services between the photographer and a client, which clearly shows money changing hands and/or a licence for commercial use of the images, I’m not sure how a ticket can be legally written.
What would you have done? Have you ever been in a similar situation? Are there similar restrictions in your jurisdiction? Join the discussion in the comments below.
[The conversations above reflect the conversations as I remember them, as close to word-for-word as possible. I jotted down everything immediately after it happened.]