I have written about the issue of street photography and privacy rights two weeks ago and the e-mail I get on that piece (“The Postmodern Panhandler”) keeps coming. There also has been quite a bit of discussion about the New York film permit requirement; many blogs that I read and like a lot have asked people to sign a petition against it in the last few days (e.g. Magnum Photos, Alec Soth, Amy Stein, Conscientious, just to name a few; Magnum only wants you to sign the petition if you actually agree with it…). Others have questioned Zoe Strauss’ “moral” right to take photographs of strangers in the streets (there is an interesting exchange following her entry “Exploitative-Egocentric”). As I said last week: I believe an informed discussion about these issues requires at least some knowledge of the law. As a former lawyer I won’t bother you with legal details here, but let me just outline the backdrop of what I think is at stake.
Photographing strangers in the streets and then displaying these images publicly (on the web, in an art gallery, etc.) can create a conflict between the freedom of expression of the photographer and the privacy and publicity rights (“the right to be left alone”) of the person in the photograph. I’ll give examples in a second, but let me first mention a few basic aspects: Legally, it is largely immaterial what the photographer “felt” or “thought” while taking the picture, or how viewers “read it”, or what they “read into” the images. When rights of individuals (like the rights of the individual being photographed, of the photographer/artist, of the gallery owner, of the buyer of a print) collide, it is the law that is supposed to govern how the conflict is solved. And since the law is always a little late (because people are ingenious, because moral values shift, because technology changes, because awareness of a new problem grows slowly, because drafting a law takes time, etc.), not everything that is legal is also ethical. So let me very briefly look at those two areas:
(1) Legally this is a somewhat complex field. Just crying “first amendment” or calling the major of New York City names will not add much substance to the debate – *any* right, including freedom of expression, is limited by the rights of others. That, again, is the gist of the whole problem. On top of that, privacy and publicity rights and rights of artists vary from country to country, and sometimes (as in the United States) even from state to state. But there is a very consistent policy that commercially used images with discernible people in them *have to be model released in writing* (by a sober and informed person, one should add), and potentially compensation has to be paid before these images can be used. Now how about this: For the sake of argument, suppose a street photographer takes portraits of people living in the streets in a crime ridden area of Chicago’s South Side. Suppose there is no written release, and no compensation was payed. Suppose further that the individual in the photo gives up drugs, gets back on her feet, moves to New York City, finds a job on Wall Street, and happens to walk into a gallery in Chelsea where her image is on display two years after it was taken. She sees her portrait and sues the photographer for a million dollars. (Of course she’d also sue the gallery because (a) they ‘published’ the image and, well, (b) because, as her lawyer would likely assume, that’s where the money is.)
Had the portrait been used in an advertising campaign (without a signed release and without compensation), this case would be easy. The photographer and/or the advertising agency and/or the client would have to pay. How much is an open question (these cases usually are settled outside the courtroom), but the amount might very well be substantial. Well, what is different when the image is not used for advertising but displayed in a gallery and/or sold to an art collector? The main difference is that the lawyer of the photographer could argue that the image has artistic merit. But would that really make such a difference to the commercial side of the deal? I hate to say it, but in such a case I’d rather be the lawyer of the person in the photo than of the photographer.
(2) Ethically, one helpful cue can be taken from existing law: Western legal systems (I simply don’t know how these things are seen outside the western hemisphere) consider informed consent a relevant factor when a private person is photographed and the photo is used in a commercial environment. Furthermore, the law considers it a rather general norm that human beings are never to be degraded to mere objects. A photo of a human being in a desperate situation, in a very bad neighborhood, drugged, beaten, uninformed about her rights, unaware of what happens with the photo that is taken of her, of who is going to see it, of how much money it may make for the photographer in the elusive gallery world (which, given these circumstances, could just as well be on another planet), hardly suggests informed consent, even if the individual did not reject her picture being taken. Of course the same is true if the person in the photo did not even realize that his or her photo was taken; given today’s cameras and camera phones, this may rather be the rule than the exception.
If there were no legal guidelines whatsoever (but, as I tried to show, there are), the simple question that I personally would ask if I were to think about taking such photos is this one: Does the individual being photographed benefit in any way from the photo? Let’s say another photographer found out that the healthcare system in a certain neighborhood in Chicago leaves the poor totally on their own, and that conditions in a particular hospital located in this neighborhood are horrible. Now, if that photographer did a project in the emergency room over a couple of weeks (I wouldn’t expect her to get a permit, but let’s just assume she would) and used those photos to raise money and start a program that specifically gives those that cannot afford to get treatment a chance to do so, that I think would seem like an ethically worthwhile project to all of us. The benefit for the individual in the photo would still be questionable though. And, keep in mind, even the use of an image by a no-profit organization requires a model release – it’s just that the above situation makes the use of such images look “less bad”, or maybe even “good”.
In any case it seems quite apparent that this is a substantially different scenario compared to the kind of street photography that is created by an artist on the hunt, resulting in an image that is displayed in front of a generic web and/or art gallery audience: There is no indication whatsoever that the people in such photos benefit from that. The artist benefits from it, the gallery does. The idealist may argue that in some way “society” does. But the person in the photo does not.
As I said earlier – even if such photos are very good from a purely artistic viewpoint (and, in some cases, they most certainly are), I don’t see this kind of photography going on for much longer without legal repercussions – ethical considerations notwithstanding. The current debate about film permit requirements for the streets of New York City is just one example that such repercussions can come in awkward shapes and sizes.
Jens, This is an excellent post and brings up issues that I think about all the time. When making a portrait, I always believe that I have the informed consent of the person who is in the portrait, unless I’m making a photo where a person might be walking through a landscape image and is not the focus of the photo. But… it’s just a moment and the person whose portrait I’m making can’t change their mind following the making of the image, unless they see their image and contact me to stop showing it.
The shift in exhibition issues is most interesting for me. I make all my photos with the intent of hoping I can show them as part of the I-95 project and tell the people who I’m photographing about that project… but since I’ve begun I-95 I’ve been offered many more opportunities to show my photos in different settings. And, although I will always sell 5 dollar photocopies my prints can now sell for over 2000 dollars. What does it mean when the original intent for exhibition of the photograph has shifted since the photo was made and now includes different presentations of the image and different price points? I don’t know, I’m trying to navigate it all the time.
Thank you Zoe, and thank you very much for the kind comment. In theory, I think that the agreement at the time of the shooting of the photo ‘counts’, and that the intended use that the photographer communicated to the person in the photo is what this person agreed to. It is sure difficult to draw the lines here. But if one wanted to learn from commercial model releases, I guess the lesson would be that one should not create just one very specific expectation regarding the intended use in the person in the photo, but keep things as open as possible instead.
One aspect that I was thinking about while writing today’s post and including your name was this: Unlike people who just walk down the streets and randomly stick their camera in other people’s faces (as if the world was just a big zoo set up for anybody owning a camera), your street photography probably draws a lot of its uniqueness from you connecting with the people in your photographs, even if you may just have met them for the very first time (in that sense I think you go way beyond the traditional paradigm of the “invisible photographer” and the whole “decisive moment” thing). And you know the neighborhoods. For those two reasons, I guess you often have a chance to go back home, look at the photos, think about them, and then (if you like the pictures) go back to the person you photographed and talk about what you may want to do with the images. In that sense, I think you create opportunities for yourself that others may miss.
I sure have many more questions than answers about all this myself. But I guess that if one feels strongly about a photograph with a discernible person in it and thinks it may go far, it wouldn’t necessarily be out of place to think about actually having a model release signed. I know that this might not be how one sees one’s artistic work, and that this kind of quasi-legal interaction might be very off-putting in the context of the kind of connection one might want to have with the people one photographs. But times change, and maybe both photographers and the people ending up in the photos will get accustomed to new ways of dealing with these things much more easily than it may seem possible today.
I hope all this does not just come across as a classical “better safe than sorry” attitude of what is left of the lawyer in me (I am painfully aware that this kind of suggestion will sound very narrow-minded to some). I truly believe “freedom of expression” is not all that is needed to create art. On the contrary, I think that the many boundaries (legal, technical, practical) that all responsible photographers face, and have to deal with, actually can add depth to their work.
[Edit, JH: I have removed names and links in the first part of the following comment. Apart from that I left the first part untouched, although it is not really about street photography and privacy/publicity rights. The second part of the comment remains unchanged.]
I’m defending myself in Federal Court right now for using a photo without consent (the next hearing is Aug. […]).
I was sued for defamation (the other party used one of my [commercial] images without permission, I wrote about it online, and he sued me for defamation). When I wrote about his lawsuit and included a photo of the guy (taken without his knowledge or consent) he brought a claim against me for appropriation of his likeness (my webpage with the details is […]).
I do not believe a photo taken in a public place would be illegal to hang in a gallery, as it’s not an intrusion into anyone’s private affairs, but I’ve given this matter countless hours of reflection and my point of view continues to evolve.
If it’s that hard for me to know what photos I should publish, how could anyone else POSSIBLY know what’s right for me? They should only get to decide what’s right for THEM to publish, and let me decide for myself (within the bounds of the law, and there are few privacy laws on the books). Any discussion of the issue ought to respect the fact that it is, by and large, each individual’s decision.
I could argue that “Migrant Mother” by Dorothea Lang should not have been published, because it was exploitive and intrusive, or I could argue it should have been published, because it helped bring aid to migrants. I suspect the truth is “Who really knows?”, what matters is that the publisher had a RIGHT to publish it and they did. I respect other’s right to decide what to publish, and I want the same in return (I’m not getting it right now, in that I’m being sued for publishing the truth).
Chris, here is my take: There is a widespread misconception that just happening to be in a public place makes a private person public. This is not the case. “Public figures” such as actors or politicians indeed have limited privacy and publicity rights: It makes a difference whether for example Bill Clinton walks through Central Park, or you or me. Clinton knows what the deal is – it’s part of his life to be photographed endlessly, and there is a *public interest* in political leaders or celebrities being documented. That, as always, will not affect the rights of a public figure without limits.
There also is a public interest in the documentation of human catastrophes such as the Great Depression or hurricane Katrina. This inevitably has an influence on the privacy and publicity rights of those unfortunate enough to be in such a situation. There are great stories around the world on how individual people in a disaster area lost everything and then got back their lives by photos about their misery being published and money being raised for them. Still, I believe there is a difference between a news photo of historical interest, and/or a photo being displayed in a gallery.
My point in all this is: We are all hopelessly biased when it comes to our own interests. People do absurd things and think they are “right”. That is the beauty of the law: It forces you to take a step back, it forces you to look at an issue from different angles. But even if one doesn’t care for the law or does not know it, it still rules. It is not up to individual photographers, nor anybody else for that matter, to make up personal theories what anybody’s privacy or publicity rights are.