Basing need for a permit on whether a filmmaker/photographer actually creates an obstruction is vastly preferable to previous criteria and I commend you for moving in that direction. However, I am seriously concerned that some of the new language is unduly complicated and ambiguous, and that this will lead to problems on the street. For that reason, I consider the regulations to be currently unacceptable.

In particular, there need to be clarifications of both ‘obstruction.’ and ‘exerting exclusive control.’ Those in the ‘Q & A’ document you posted on your website are sometimes helpful, but I don’t believe they have legal standing. In any case, while they might be illuminating in a court of law, the point is to avoid unnecessary conflict on the street so photographers and law enforcement (and yourselves) don’t end up in court. Therefore, I ask that you include the clarifications in the regulations themselves.

I’ve taken your own language from the Q & A and made some small modifications to create a definition I’d like to see in the regulations:

‘Obstruction’ means that people are actually prevented from reasonably using the sidewalk – that is, the persons filming are asserting exclusive control over the area around them. The filmmaker/photographer’s presence does not in itself constitute an obstruction, nor does it constitute assertion of exclusive control.

I see the lack of a sentence like the last one to be the single biggest problem with the regulations. Without it, photographers could be seen as inherent obstructions. With the current language, a typical misreading that I can easily envision from a police officer would be: ‘No one can walk through you, so you are therefore an obstruction and need a permit’ or ‘You are exerting exclusive control over the spot where you’re standing with your tripod, so you need a permit.’

Dangerously ambiguous language is repeatedly found in both the regs and the Q & A. For example:

Section 9-01 (b) 3 of the regulations states:

For purposes of this subdivision, “obstruction” shall mean the assertion of exclusive control with respect to the use or occupancy of such space, and “unobstructed sidewalk use” shall mean, with respect to filming or photography occurring on a sidewalk or other public pedestrian passageway, the use of such space that is not an “obstruction.”

The language is too convoluted. It’s especially hard to understand just what the term “such space” refers to. What needs to be clarified is that concern should be with the space around or beyond the people shooting, not with the space they can’t help but occupy.

If people are using what within your guidelines is described as handheld gear, which thankfully includes tripods, and they are not governing pedestrian or other traffic, and pedestrian flow can reasonably continue around them, then they simply should not need permits.

I would like to know today if you agree with that statement.

If I am correct in my interpretations of what you mean in the revised regulations, then I believe that your intentions may be good. I thank you for that, but your intentions don’t mean anything if they aren’t accurately reflected in the rules themselves.

Often the fixes would be quite simple: I don’t have time to read through each instance now, but I am emailing you a list of the language I find most problematic. (As speaking time was extended, I did read the points at the end of my statement. see below).

The objective here is to spell out the ways in which photographers and pedestrians can reasonably share city space, just as we currently share it with baby strollers, people using carts for shopping, leashed pets, fruit and newspaper vendors, etc. etc. It really isn’t so much to ask.

I’m a full-time independent filmmaker specializing in shooting on the street and I’ve been doing it here for 23 years. My work is in the collections of the Museum of Modern Art and the Whitney. My street films have shown on PBS and the Sundance Channel. This work has been supported by a Guggenheim, Media Arts Fellowships, grants from Creative Capital, NYSCA, NYFA, the NEA and others. The point here is that the bulk of the money I received was cycled back into the New York economy. In other words, the work that independents like myself do benefits the city. And if it isn’t financially, then it’s as part of a great art tradition most identified with this city.

I shoot on the street hundreds of times in a given year. It would be utterly antithetical to this work to try and guess when and where and for how long I’ll shoot, and therefore it’s generally impossible for me to apply for permits. That is, and always has been the very nature of street photography.

Being stopped by police officers is a major impediment to my work. Often, when it happens, the reasons seem arbitrary. I understand there are concerns about photographing ‘infrastructure,’ but one of the problems is that much of the city, including many of the most archetypal New York sights, can be seen as ‘infrastructure’; tall buildings, bridges, sewer gratings – in other words, most of the things we think of when we envision the City at all. We’re all concerned about terrorism, but it can’t be used as a pretext for authoritarian control. And especially as every generation of cell phone cameras improves exponentially in resolution. It is simply not practical to stop photography in New York. And of course, it is also unconstitutional.

Just as you celebrate and protect the bigger commercial film shoots, I would like to see the celebration and protection of the work of independents and small operators.

I recognize that substantial progress has been made in that direction. With some small but crucial changes, I think the regulations could actually be helpful to us. But without those changes, I think we’re in for trouble.

Thank you.
Jem Cohen, Public comment read at Hearing.
(Addressed to MOFTB)

Additional problems with the language:

In your Executive summary on the website, in section (1) b,
I believe that the sentence: “This does not mean that filming activities cannot take place on a sidewalk if there is room for pedestrian traffic flow” should include the words ‘without a permit,’ after ‘sidewalk.’

In the Executive summary under ‘Handhelds?’ I believe that the language should be changed:

“a permit will be needed if …
the filming activity results in less than eight feet of unobstructed sidewalk use as a result of the filmmaker’s assertion of exclusive control over the portion of the sidewalk they occupy.”

It should read:
‘permit will be needed if there is assertion of exclusive control beyond the portion of the sidewalk they occupy.’

On page 12, in the statement of Basis and Purpose, paragraph 5, the word “be” is missing from “A permit would not required if someone films…”