With the recent series of stories in the media about the legality of photographing police officers, certain locations and celebrities, the average person can be forgiven for being fairly confused about whether they are allowed to use their mobile phone’s camera at an accident scene.
The good news is the ubiquitous nature of the modern mobile phone camera advances all but the most obviously amateur photographer to the unofficial status of journalist, which triggers broad and nearly invincible First Amendment protection to just about anything you can see through your screen in a public place.
The short answer to the question “should I take pictures of an accident scene?” is an emphatic yes.
Legal Considerations
For all intents and purposes, anything can be photographed without restriction or fear of legal repercussions provided the photographer is in a public place and is photographing something that is also in a public place. Leaving aside the “freedom of the press” issues, challenging someone’s freedom to take pictures requires some kind of legal exception like expectation of privacy. Simply put, there is no such thing as an expectation of privacy in a public place. This, among other things, is the main reason surveillance cameras are legal in many places of business.
Not only are your photographs legally protected by your freedom to act in a public place, they are also your intellectual property the moment they are taken. While copyright laws are rarely invoked at the scene of a car accident, Title 17 of the United States Code does give you some fairly powerful legal tools in the event your pictures are misappropriated. Further, under the 1976 Copyright Act, your right attach the moment the photo is taken.
The First Amendment to the United States Constitution also gives you wide latitude to document a public event like a car accident. Even if you are involved, you enjoy the same rights as any news reporter to gather information about what happened, who was involved and why.
What You Should Photograph
Because you are equipped with a camera that has virtually unlimited film, there are few things at an accident scene you shouldn’t photograph. However, one thing you will want to be concerned with is whether your pictures will be useful in helping defend you against inaccurate testimony and the placing of unfair blame on you or your passengers.
First and foremost, you should photograph the IDs of everyone at the scene, including emergency personnel, tow truck drivers, witnesses, other drivers and passengers and of course, everyone who was involved in the accident. For involved drivers, you should also get pictures of their insurance cards, license plates and VIN numbers if possible.
Photograph all the damage from every possible angle. Get pictures of the interiors of both other drivers’ cars and your own. Turn on all your lights at the scene and photograph them so you can prove they are in working order. Take a few pictures of your engine and tires as well.
Then make sure you document the scene. Road conditions, skid marks, debris, fluid leaks from vehicles, weather, obstacles, hazards, damage to the road itself, nearby structures and any nearby surveillance cameras should be at the top of your list. If you photograph buildings, make sure you get their address numbers in the shot. Also be sure to take pictures of every street sign, light, bus stop, intersection and signal within 100 yards of the accident scene. If you get your pictures at night, come back the next day and take a daylight set as well.
This may seem like overdoing it, and in any other circumstances it probably would be. But the ability to literally present a complete picture of exactly what happened four months after the accident will put you in a position to defeat any attempt to “spin” the event for someone else’s benefit. If you really want to have a total liability shield, install an always-on dash cam to go with your picture set.
Pictures as Evidence
The purpose, naturally, of obtaining photographic evidence at the scene is so you can use it to defend yourself in the event of litigation or a dispute with yours or another insurance company. For this reason, you will want to preserve and protect your data. Offload your pictures to a local computer and then store a second copy of the data elsewhere. Do not delete the pictures from your phone if you can avoid it.
Be sure to preserve the EXIF data in your pictures. This information will help authenticate the time and date each picture was taken. If you think of it, activating the GPS subsystem in your camera before you take the pictures is a good idea as that will add a location to your EXIF data on some models.
You may also want to consider printing your pictures so you can hand a physical copy of them to counsel or the court clerk. As any lawyer will tell you, having a stack of paper to wave in the air at trial almost always works in your favor.
The world is still trying to catch up with the idea of everyone carrying a television station and photography studio around in their pocket. For people who need to defend themselves in the event of a car accident, however, few technologies could be of greater benefit.