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Author Topic: I have no idea what to think!  (Read 2143 times)

Otto Phocus

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Re: I have no idea what to think!
« Reply #20 on: March 10, 2017, 10:27:12 AM »

Can someone please explain why it's okay to show, but not to have what you show recorded?

I can certainly share my thoughts on it that I posted on a similar thread

To me the difference is that if someone sees me in public, there is a non-permanent image "taken" with the eyes/brain.  All that remains is the person's memory.  Later, all a person can do is describe what they saw to someone else.   "Hey, today, I saw this old, bald, fat guy walking down the street.  Crikey he could stand to lose a few tons!"  After a while, unless the person possesses a fantastic memory, the memory of an individual seen in public fades and is eventually forgotten.  My privacy, when seen in public is maintained partly by the passage of time and fading memory. 

Contrast this with taking a photograph where a more permanent image is taken.  That image, unlike a description, can be given or shared with a practically unlimited number of people.  With the advent of digital images, these images can be quickly spread far outside the control of the original photographer.  Even if the photographer has no ill intent, the photographer has no control over the image after it goes out of his or her... uh.. well... control.   :D  With photography, there is no temporal aspect of privacy, until all copies of the photograph are destroyed. This is what makes photography valuable and at the same time more intrusive than memory.

Also the level of privacy (or more precisely, privacy invasion) between seeing someone and taking a photograph of that person is different. Unless you are staring at someone for a long time, just seeing someone in public will give you a general impression of the person.  You will notice and remember the major aspects of the person.  With a photograph, it records a whole lot more detail which means you have collected more information about the person than you would just by seeing them.  In this instance, looking at a person and photographing them are not the same in the context of the extent of privacy affected.  Privacy should not be considered only a dichotomous state, but more a spectrum.

I would like to bring up the matter of assumptions.  When discussing issues, I feel it is important to identify and evaluate the assumptions involved in the issue.

Many photographers assume that seeing someone in public and photographing people are the same thing.  If one is permitted than the other is permitted.  That assumption may be right or it may be wrong, but it is an assumption and should not be treated as an already established fact.

The problem with assumptions is that they can be easily misunderstood as facts, especially if the assumptions are shared with a large population and repeated a lot.  But regardless of how many people agree with an assumption, it is an assumption and not necessarily a fact until it is demonstrated and evaluated as a fact.

The key difference is that if someone disagrees with a fact, they are wrong, but if they disagree with an assumption, they just have a different assumption that may or may not be valid. 

Privacy, especially considering it as a spectrum, is a very complicated matter and even the courts are struggling to define and establish legal limits.  Ethical and moral definitions and limits are another matter entirely.

So while a logical case can be made that if I go out in public where there are other people, I must accept their ability to look at me and remember what they saw, that does not necessarily mean that I automatically must accept their ability to take a more permanent record containing more information than can be remembered. That may be true or that may be false.

One assumption is that they are different, another assumption is that they are the same.  But both are assumptions.

Maybe from a legal and a moral standpoint they are the same, maybe they are not.  But I don't think it is logical to just automatically assume that anything that can be allowed to be seen by the eye can/should be allowed to be photographed. 

On this and pretty much any other photography forum, this assumption seems to be common and accepted, but has not been demonstrated to be true.

Naturally, as photographers, we would like seeing/photographing to be the same.. after all, this is our hobby/profession/interest.  ;D  But that also makes us at risk of being biased.

People who are not photographers, may have a different opinion.
I shoot with a Camera Obscura with an optical device attached that refracts and transmits light.


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Re: I have no idea what to think!
« Reply #21 on: March 10, 2017, 12:07:56 PM »

In response to the Otto Phocus, I remember reading a few years a book writing by a lawyer who represents photographers and it explained the law pertaining to image making. 

In fact only two things are illegal in the USA to take a picture of, child pornography and nuclear facilities.  The former is obvious, the latter is actually a charge of treason but it also needs to be proved the photographs would be used against the country in some manner, so this charge is rare.  Not to mention few people are allowed in nuclear facilities with cameras, and the one photographer I spoke who did photograph one was escorted by two marines with the sole purpose of shooting him dead if he did anything egregious.  He was actually flat out told this by one of the marines, "I'm not here to protect you, I'm here to shoot you if ..." 

So really it's usually the usage that is illegal. 

The real question is how can you use the images and does the act of using an image violate a right of privacy or a right to publicity. 

According to the courts, there are two types of usage, newsworthy (to be used in a story or recording of events, even for private use only) and advertising (to be used to sell a product, so really any marketing).  Also, only people have rights to privacy and publicity; property does not.  Although someone can bring suit against you for anything, by law buildings, pets, cars, etc., do not have these rights.  Also, most three dimensional objects and anything which is utilitarian in nature (such as clothes, fonts, furniture, buildings, lighting, etc.) can not be copyrighted by the USA copyright code.  (I know this because I tried to copyright a font I created and was denied.)  Trademarks are another story, but trademarks are symbols, not objects.  For instance you can trademark a group of letters in an arrangement and have protection for that, but you can't trademark the font used to create that arrangement.  So in essence, we are worrying about people only in most uses, and trademarks when used in advertising. 

For using images in advertising purposes, it is pretty clear, you can't use the image of anyone in any advertising without written consent.  You also cant use a trademark in an image where it appears the owners of the trademark are endorsing the product being shown without consent. 

Newsworthy gets more grey. 

Most images that are captured in public or private, so long as they do not violate a right to privacy or publicity, can be used in most newsworthy instances.  Voyeurism is a clear violation of privacy, so in the case of a voyeuristic image being captured on a private property and then used, that would be violating a person's privacy.  On public grounds, if the person is full naked or exposed where there is no significant effort needed photograph the genitals, that image would not be a violation of privacy and can be used in a newsworthy instance. 

There is a naked bike ride every year in Philly, and hundreds of those images end up on blogs the day after with no recourse. 

(For those interested, the right to publicity is your right to not be falsely represented.  If your image is used within an article on drug dealers, assuming you are not a drug dealer, that would be a violation to your right of publicity.)

In the case listed by the OP, I see two problems.  First, photographing the younger individual in that manner can be argued to be child pornography and would obviously be illegal regardless of use.  Now, it also could be shown that he went out of his way to photograph the impression of the genitals of all the ladies, and that those views would not normally be seen, such as "up skirting."  Unfortunately in the USA, whether or not this would be illegal is a state issue.  Also, it is not necessarily illegal to actually photograph this; it's really the usage that comes into question.   

Prior to five years ago, this would not be illegal, although immoral, anywhere in the USA, just like revenge porn.  But now state congresses are catching up and making such offenses illegal.  The Marines United Facebook group is bring this to national attention again. 

I support this, just so long as it does not go too far.  We need more lose laws covering newsworthy usage otherwise people could get away with a lot more.  Think of all the private companies polluting the environment on private lands; journalists need to the right to use images of this in the news without recourse. 

An example of going to far ... I thought the original merits of Orphaned Works was well intended, namely allowing museums to show work they have in storage, but without records as to who created, without monetary recourse from those who created it.  AKA, a museum can show a piece where they legitimately don't know who created it and not fear being sued.  Unfortunately, the congress tried to take it further allowing any company to use any orphaned piece of art for any purpose so long as they made an attempt to figure out who created it, which they did not have to document. 
« Last Edit: March 10, 2017, 07:59:03 PM by JoeKitchen »
Joe Kitchen

"Photography is one percent inspiration and ninety-nine percent moving furniture."  Arnold Newman
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Otto Phocus

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Re: I have no idea what to think!
« Reply #22 on: March 13, 2017, 09:18:44 AM »

In fact only two things are illegal in the USA to take a picture of, child pornography and nuclear facilities.  The former is obvious, the latter is actually a charge of treason but it also needs to be proved the photographs would be used against the country in some manner, so this charge is rare. 

Not quite correct. Much more than just nuclear facilities

18 USC section 795
Whenever, in the interests of national defense, the President defines certain vital military and naval installations or equipment as requiring protection against the general dissemination of information relative thereto, it shall be unlawful to make any photograph, sketch, picture, drawing, map, or graphical representation of such vital military and naval installations or equipment without first obtaining permission of the commanding officer of the military or naval post, camp, or station, or naval vessels, military and naval aircraft, and any separate military or naval command concerned, or higher authority, and promptly submitting the product obtained to such commanding officer or higher authority for censorship or such other action as he may deem necessary.

There is no provision for determining why or how the photographs would be used.  Just taking the photograph (or engaging in related activities) is a violation of this law.
I shoot with a Camera Obscura with an optical device attached that refracts and transmits light.
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