I was recently asked to discuss my thoughts on the ethics of street photography and if I thought there was any ethical difference between shooting adults and children. It’s an important topic so I thought I’d take the opportunity to address it in this format. Of course, it is important to note that I am a photographer and I lecture about issues that artists face to my students however I am neither an attorney nor am I an ethicist. I do however have an interest in the subject and follow cases that I believe are relevant to my work and to my students so I believe I come to the topic with an informed opinion. It is also important to note that I’m writing today mostly about what I’d consider to be personal and fine art work. Certainly these topics are important to photojournalists, editorial, and commercial photographers too but those professions have additional considerations that further complicate the discussion and are best left for another time.
So then, in its most common form, the question I hear most often is this: Is it okay to photograph people without their knowledge and/or consent?
It may surprise you that our Founding Fathers set the stage for the answer especially considering that the first photograph wasn’t created until 1839 – nearly half a century after James Madison introduced the Bill of Rights to the House of Representatives. Oh, and while we are on the topic of the Founding Fathers – they set the stage for copyright too which is an essential right allowing photographers to actually earn money from the sale of their work. Anyway, back to the Bill of Rights – the First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
-http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html, accessed 8/14/14
That’s it. That one sentence sets the stage for so many things. The relevant part for today’s discussion is that we have a VERY STRONG freedom of speech in the United States and that freedom extends beyond written or verbal speech to pretty much any form of expression, including – you guessed it – artistic expression.
So then why are photographers increasingly coming under suspicion?
I think the answer to that question comes down to a few things.
First, at some point, political correctness became a factor. It seems to me that I became aware of people trying to be politically correct sometime in the late 1980s, which, given that I was a teenager then, probably means it was around long before then and I only just noticed. In any case, I believe that we (as a society) started to worry a bit too much about saying wrong things so that we would not to offend anyone. Given our track record on civil rights, that’s not generally a bad thing and frankly, some of us still have a way to go before we get it right. But the downside is that we (again, as a society) seem to have lost the willingness to call a spade a spade for fear of offending someone. That fear makes us more hesitant in our day to day lives so we think twice about making photographs that we think someone might take offense to even if we have no intention of doing anything that would be offensive with the image.
Second, and this is a big one, on September 11, 2001, a group of terrorists changed our culture in a profound and lasting way. I remember hearing speeches after the attack that we need to go on with our lives as they were otherwise the terrorists will have won. Well, if that’s the definition of a win for the terrorists, then 13 years later I think we can say for certain that they did win. Our lives changed. We became a little more afraid and suspicious. Before 9/11, if a photographer set up a tripod and started taking photographs of a skyscraper, a bridge, a power plant, etc., and if questioned about it, the photographer responded that they were working on a project, then that would be that. Today that person is often viewed as a potential terrorist scouting their next potential target. And if that person happens not to be Caucasian, well then – time to call the police.
To recap then:
- The Founding Fathers set the stage for vast personal freedoms
- Times changed and we are living in a time of general unease
- The relevant laws about photography have not changed
I’ll provide some examples that I think are interesting (though I’m admittedly an academic sort of photo geek) and relevant below but I want to clarify what we are legally allowed to photograph. This is a good rule of thumb – if you have permission to legally STAND somewhere, then you have permission to take photographs. This includes all public property, so photographing people at parks for example, is definitely permitted. You also have the right to make photographs on private property assuming that the property owner gives you permission. Practically speaking, that means you can probably take pictures in privately owned places so long as you are welcome there however those owners have the right to say no (think about every time you’ve been told that you can’t take a photo at a concert for example). The lines blur a bit here and there but by and large, if you keep these in mind, then it is probably fine to use your camera (or video recording device).
Now counter that with a person’s right to privacy. Sometimes this is obvious (you don’t photograph people in changing rooms for example) but other times it seems utterly confusing. For example, is it okay to photograph someone in their home through their windows? Surely that seems like a definite NO. Certainly I wouldn’t want anyone photographing me without my knowledge while I’m in my home. But now think about things you’ve seen on TV or in the movies (because obviously they ALWAYS show only the realistic) – have you ever seen a show where a private detective takes photos to prove infidelity on behalf of his or her client? How did that seem you you? A bit invasive, definitely. Illegal? Probably not otherwise those photos could never be used as part of legal (divorce) proceedings. So then, if that’s okay, what about taking photos of people in their homes as part of a fine art project?
Along those lines, I’ll share with you the work of Arne Svenson. He is a New York based fine art photographer and he created a series entitled The Neighbors where he photographed, you guessed it, his neighbors through their windows. Because he lives in Manhattan and his neighbors live in highrise buildings, the expectation is that they wouldn’t necessarily know each other. He certainly didn’t ask them if it would be okay for him to photograph them as they went about their lives using a telephoto lens from his own apartment. Once he decided his body of work was sufficient, he reached out to a local gallery, made the proper arrangements, and held an exhibition of his work. Being that it was a local gallery, his neighbors learned about the project and were upset. What do you think? Look at the photos on his website (there isn’t anything NSFW in The Neighbors gallery). It turns out that the neighbors were upset enough to pursue legal options. How do you think that turned out? Well, according to judge Eileen A Rakower, Svenson’s neighbors’ suit had no merit because the body of work was protected by Svenson’s First Amendment right to free speech. In her decision, Judge Rakower wrote:
An artist may create and sell a work of art that resembles an individual without his or her written consent.
I bet you didn’t see that one coming.
And it’s not just Americans that enjoy this artistic freedom. He’s an example from France dating back to 1981. Sophie Calle is what I would call a conceptual artist (she’s also an art professor) – that is, in her art, the IDEA is at least as important as the final art work. That might not be strong enough – for conceptual artists, the idea itself oftentimes IS the art. Anyhoo, in this particular series, she obtained a job at a hotel as a maid so that she could photograph and catalog the visitors’ belongings as they left it before she did her cleaning. Check out an example of her work here: Room 47. I’ll bet that her former employer NOW has a clause in their hiring contract forbidding employees to photograph their guests’ belongings but it probably never occurred to them that it was necessary before they hired Calle. So the project was probably legal. Sophie Calle actually created a number of projects that you might find interesting along these lines and I encourage you to read more about her work. You might especially want to check out this article which describes how she followed, photographed, and made notes about strangers as they went about their daily lives.
So hopefully you’ll agree that if these two invasive artists’ projects are legal, that pretty much all street photography is probably legal too. I’ll leave it here for the week to give you time to ponder these examples. Next week I’ll provide another few examples and discuss some of the ethical considerations.