Luminous Landscape Forum
The Art of Photography => The Coffee Corner => Topic started by: Otto Phocus on October 14, 2016, 07:57:10 am
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This thread is a continuation of a discussion that started in the "under a mother's watchful eye" thread. I did not want to hijack that thread so I started this one
The topic that came up was: From a privacy standpoint, is being able to see, with your eyes, a person in public the same as being able to photograph a person in public.
I made the comment
"Perhaps some people feel there is a difference between being able to see something with the human eye and making a permanent record with it using a camera?
Photographers seem to presume that if someone is OK with being seen, they are automatically OK with being photographed. I don't think they should be considered the same."
Interesting point.
My view is that they should be considered the same. If you are in public, you are a fair game (in most cases at least).
But I see your point and would like that you or someone else who shares your view elaborate it a bit further. Why? What's the difference? Genuine questions, not trolling.
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.
My point was actually about 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.
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... Maybe from a legal and a moral standpoint they are the same...
They are, at least in the States. Now, I underlined "legal" because you combined "legal and moral" as if they are one and the same. Your very question points out the difference: it is legal (again, in the States), but you are asking if it is moral at the same time.
Let me see if I get your argument right: in the example that started this discussion (a naked toddler, running on a beach), people are saying it is ok (being naked), as it is appropriate for the situation and the environment. Now, if I expand that argument further, and suggest a different scenario, say a naked toddler running around in a downtown (or suburban) supermarket, a lot of people would argue that would be highly inappropriate. So, your argument goes, it is similar with photography: a picture taken on a beach has the inherent ability to transcend the situation and environment in which it was taken, as it can be used anytime, anywhere, and for whatever purpose.
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This thread is a continuation of a discussion that started in the "under a mother's watchful eye" thread. I did not want to hijack that thread so I started this one
The topic that came up was: From a privacy standpoint, is being able to see, with your eyes, a person in public the same as being able to photograph a person in public.
Depending on the local jurisdiction, and use of the photo, No it's not the same.
As a part of the Dutch Copyright law, a person has a so-called Portrait Law protection (a somewhat crippled translation from the very clear Dutch version into English can be found here (https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_t&hl=en&ie=UTF-8&u=http%3A%2F%2Fwww.auteursrecht.nl%2Fauteursrecht%2FPortretrecht&edit-text=&act=url)). Besides establishing what a portrait is, distinctions are made between Portraits made as an assignment and those that are not made as an assignment.
For those not made as an assignment, a person has the right to object to the use (i.e. publication) of their portrait, e.g. if it violates their privacy and/or could hurt their reputation, although public figures have less of a ground for an objection. The actual law is more specific than my quick summary of it, see the link above.
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.
Yes, privacy is a difficult thing to fathom, because it means different things to different individuals. Hence the general advice to not test your luck.
People who are not photographers, may have a different opinion.
But ultimately a Judge will decide, if it comes to that.
Cheers,
Bart
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They are, at least in the States. Now, I underlined "legal" because you combined "legal and moral" as if they are one and the same. Your very question points out the difference: it is legal (again, in the States), but you are asking if it is moral at the same time.
Is it legal in the states? All the states? That's not a simple question to answer.
The answer, unfortunately, is that any action by a photographer may be legal in some states.
Here is an interesting read
http://www.firstamendmentcenter.org/photography-the-first-amendment
It is a well cited article that makes several interesting claims
1. No Supreme Court decisions directly address a photographer’s First Amendment rights.
2. ...lower courts have found that non-communicative recreational photography is not protected by the First Amendment. In this context "communicative" has a specific legal definition.
3. The Supreme Court has said “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” [Ward v. Rock Against Racism (1989)]
What Ward v. Rock against Racism (1989) established is that First Amendment cases need to be evaluated on a case by case basis and there is no over arching case decision that establishes precedence.
Porat v Lincoln Towers (2005) Source: https://scholar.google.com/scholar_case?case=15793672746972608587&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Is a case that photographers need to be familiar with. Especially because Porat (the photographer) prejudiced his case by making, what appeared to be, a simple statement.
The legal issue of what a photographer can and can't do is far from being set. There is still disagreements at the various court levels and between states. I doubt that the SCotUS will overturn their decision on Ward v. Rock Against Racism (1989).
But, time will tell. This is an important issue and there will be more challenges as the number of photographers increases and the US attitude toward security also increases. There will be conflicts and some interesting court decisions being tested.
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The question itself is flawed. There's virtually no difference between seeing someone in public and photographing that person in public. If you do that you can look at your picture and see that person in public over and over again. Is repetition the problem? Of course not. Publication is the problem, and that's what needs to be addressed.
Bart Wolf explains the situation in Netherlands, and from what he says it's clear there's no restriction on photographing someone in public, but there's a restriction on publishing that picture. In the US things are a bit different, but not all that much. If you're in a public place you have no expectation of privacy. Therefore, I can photograph you and publish your photograph. But there are many exceptions to my right to publish. I can't publish your photograph as part of an advertisement. I can't publish your photograph if it tends to give an incorrect, degrading impression. There are many more restrictions. But as long as I steer around the restrictions I can print your picture on the web, in a newspaper, in a magazine, etc. I can make a print and hang it in a museum.
Bottom line: if you're going to do street photography you'd better bone up on the law. Things are becoming more and more absurdly restrictive. If you tried to do Cartier-Bresson's kind of work in France nowadays you'd be slapped into the hoosegow in a heartbeat.
It would be interesting to know whether or not the same restrictions apply to painters. From what I've read, Degas's "La Absinthe" reproduces the faces of his models very accurately. The thing is a painterly version of street photography. Would Degas be arrested today? The whole situation is absurd.
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Is it legal in the states? All the states? That's not a simple question to answer...
That is why I said, in the previous thread, "in most cases."
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In Europe there is a legal distinction... I know (at an amateur level) the French law, but I think it is similar throughout Europe:
-Anyone involved in a public performance is fair game
-Public figures (politicians) are fair game
-Members of the public may be photographed unless doing something embarrassing. This is under the "right of artistic expression". Profiting from the photos in some way requires permission: "right of use of image". The two principles are in opposition and the grey area between has been fought back and forth in different courts.
The interesting aspect is the "unless doing something embarrassing." That makes sense to me: I might do something in a public space after looking around to see if anyone is looking, or that I hope no one would notice. So if someone catches me on camera with my finger up my nose, scratching my balls or taking a leak behind a tree, they are situations I wasn't really offering up to the public space, even if I happened to be doing them there. There are also gradations of "public": in the centre of Place de la Bastille is not the same as hunched against a wall down a side-street, or behind a tree, even if there is no legal distinction.
The "embarrassment" criterion also applies to public figures, but is interpreted differently: if a politician is photographed spitting on someone, that would be (hopefully) considered legitimate reportage in the public interest. If it's M. NoOneSpecial, it would not.
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The problem with that is that you shoot some guy doing a dance on a crowded street. You publish it. Later on the guy looks at his picture and is embarrassed. Now you've got a lawsuit on your hands and you have to prove the guy shouldn't have been embarrassed. I like "no expectation of privacy" better. Generally speaking, under that criterion the picture can be embarrassing, but it can't be unfairly degrading, giving a false impression.
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Yes, but the law wasn't formulated to help photographers...
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Right. It was formulated to help common sense prevail, the lack of which is growing by leaps and bounds.
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Right. It was formulated to help common sense prevail, the lack of which is growing by leaps and bounds.
That's not the law, that's Creative Lawyers 4 U as seen on tv.
Rob
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Simply put, anyone seen in public can be legally photographed without restriction.
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For photographers in the United States, Bert Krages is a big help. Go to http://www.krages.com/phoright.htm
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seen in public
where the "public" starts ?
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...lower courts have found that non-communicative recreational photography is not protected by the First Amendment...
It may not be protected by the First Amendment, but it doesn't mean it is not protected by other aspects of the law, or, even simpler, by absence of any law prohibiting it (I am not a lawyer, though). The opposite interpretation would be devastating for photography.
In the Porat case (a guy walking on a public street and photographing a building he found aesthetically interesting, for his own pleasure), he lost the case not because he didn't have the right to take pictures of the building, but because he claimed that such a right stems from the First Amendment.
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where the "public" starts ?
Where private property ends.
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Where private property ends.
so if you are attending a municipal loo for a certain business you are not on a private property with all the consequences ? or when I am standing openly on my property a step away /forget about easements, etc for now/ from the municipal road I am not supposed to be photographed by GoogleMobile ?
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Hi Scyth. Do you have a name?
Shooting a picture of somebody in the loo will cause you big problems. But that's another story.
The general rule in the USA is that if you're on private property the owner of the property has the right to prohibit you from taking pictures. But if you're on public property you can shoot pictures of private property. There are caveats that apply to this. For instance, if you're shooting someone through a window from the sidewalk that's a no no -- or at least it can be if the person objects. There are a few other limitations -- military installations for instance. But generally, if you're standing in a public place you can shoot anything you can see.
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Well, never would I have thought such an innocent image of a mother and child would have brought so much diversifying discourse. I've done quite a bit of study on American laws concerning public and private photography. Any person on public property, regardless of their intent or perceived rights to privacy are fair game. If this particular part of legal interpretation were exclude, street photography would become a thing of the past. As far as that goes, vacation photography would get shot full of holes.
There are "laws" so to speak regarding common decency even on public lands, but they also get stretched pretty liberally by the press. The fireman carrying the baby out of the Oklahoma building which had just been blown up became a Pulitzer prize winner but was it fair to the mother or family of that baby to see it plastered on the front page of every newspaper? I've seen the press shoot bleacher shots that for me go way outside "decency" but because they are the press, they get away with it.
Common sense, not shooting if someone requests to not be shot, avoiding shooting into private residences, should be the prevailing guidelines for any photographer.
When I made the shot, I waited for the best opportunity with I would not show a clear ID of the mother (though the tattoo was a giveaway for any friends viewing), and to ensure neither the baby's sex or face could be identified. This mother/son duo was on the beach or in the water au natural for the better part of 30 minutes. She wasn't trying to hide his naked body, she was allowing him the freedom of movement and exploration, though to her credit, she was never more than 6 or eight feet from him the whole time and always holding him when he was in the water. It was, for me a beautiful capture of a mother's love.
The Young Love, Sweet Love shot is perhaps more toward the voyeuristic side, but as with the baby and mother, they lay out in the open on a public beach for all to see. I am quite sure they became lost in their own gazes as we all do, but while they may have been offended by my taking the shot, they had no right to that perceived right to privacy. While not purely street, it is a nice documentary shot.
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I felt I was on safe grounds with this shot:
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I've seen the press shoot bleacher shots that for me go way outside "decency" but because they are the press, they get away with it.
Very different in France. Any crowd shot in a newspaper here will have all the faces blurred. In Spain, there is a distinction between being a member of a crowd or being picked out as an individual, with the threshold occurring at a specific number of individuals (might be 6).
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Actually, as you're seeing at the moment during an election season, the press can get away with all sorts of stuff us normal photogs can't. They're bound by the same laws we are as far as things like model releases for stuff they're going to use in advertising. They also have to avoid libel, just as we have to. But when it comes to editorial matter they can pretty much get away with murder, and often do. They can write what amounts to an ad, run pictures of people with it, and claim it's editorial material. Usually the ad is a slanted article in favor of or against one politician or another, but the item, with pictures, is called an editorial or a news story. Check your history books and you'll find that this has been going on since before the U.S. became a nation. Mostly it's freedom of the press at work, and mostly I'm in favor of it. But sometimes it goes over the edge. You just have to be critical.
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I felt I was on safe grounds with this shot:
Electric! You've got a good eye, Graham. Worse, you've got interesting people!
;-)
Rob
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Easy mark*... the local gay etc community was having a protest ahead of tomorrow's Catholic ultra-right anti-abortion, anti-everything march. Your humble photographer was himself wearing a cardboard unicorn horn on his head to fit in :)
(*) Just realised this is an Australian football expression... the scars of one's childhood...
PS photo credit to my sometimes model, Marie
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A photographer might understand the law in a particular country but the public probably won't. If one of the public complains to the police about a photographer shooting in public then the police probably won't understand either and decide to side with the complainer. Other members of the public might assume the photographer was in the wrong and then....?
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But if the photographer's wearing a unicorn horn, he should be OK, right? ???
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A photographer might understand the law in a particular country but the public probably won't. If one of the public complains to the police about a photographer shooting in public then the police probably won't understand either and decide to side with the complainer. Other members of the public might assume the photographer was in the wrong and then....?
Especially if it is the police complaining. During the recent protests in Paris, photographers were carrying print-outs of a reminder from the Minister of the Interior that it is perfectly legal to photograph the police... but at least one ended up with an extended hospital stay.
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When in Rome.....
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When in Rome.....
Reminds me of Patrick Lichfield who was apparently told to fold his camp for trying to shoot something on a Roman street without a proper licence so to do. Maybe the fuzz was confused, or just anti-royal. Whichever way, they certainly produced an amusing anecdote for other pros of more humble origins. Best look like a tourist! Or a paparazzo, in which case you'd get a movie contract. No, wait: isn't Fellini up in Cinecittà heaven now?
Rob
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so if you are attending a municipal loo for a certain business you are not on a private property with all the consequences ? or when I am standing openly on my property a step away /forget about easements, etc for now/ from the municipal road I am not supposed to be photographed by GoogleMobile ?
I have no idea what a 'municipal loo' is but if it takes place in public then in the US photography is allowed. If you are in public view on or off private property you maybe photographed, But that doesn't mean someone can photograph through windows etc.
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I have no idea what a 'municipal loo' is
Public toilet, provided by the city.
This actually confuses the notion of public space with public ownership. A public space is one anyone has the right to enter: it's uncontrolled. A public toilet is not public space: it usually has a door, which may on occasion be locked. You are implicitly invited to use it. The fact that it is owned by some sort of public body is irrelevant: otherwise you would be at liberty to do in concert halls and museums whatever you are free to do on the street. You are not.
There are also privately owned public spaces. the two concepts don't actually overlap much.
https://en.wikipedia.org/wiki/Public_space
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How does this fit with security cameras, both inside business premises and cameras pointing outside to the public? I'm not referring to government related cameras, I'm referring to privately owned and operated security cameras.
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... inside business premises and cameras pointing outside to the public?...
Inside > you are on private property, thus fair game
Outside > you are in public, thus fair game
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How does this fit with security cameras, both inside business premises and cameras pointing outside to the public? I'm not referring to government related cameras, I'm referring to privately owned and operated security cameras.
As I said earlier, if you're on private property the owner has the right to prohibit you from shooting pictures. Therefore, if you're the owner you have the right to prohibit yourself from shooting pictures.
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As I said earlier, if you're on private property the owner has the right to prohibit you from shooting pictures. Therefore, if you're the owner you have the right to prohibit yourself from shooting pictures.
Understood, but the person with the right to prohibit does not even know the picture is taken, until it is discovered, on say social media.
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... the person with the right to prohibit does not even know...
...that he doesn't have the right to prohibit anything (in the States). As I said, inside or outside, that person is a fair game.
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Right. Let's run through it again. If you're on private property the owner of the property has the right to prohibit you from taking pictures of his property. He doesn't have the right to prohibit you from taking pictures of stuff outside his property in public places. If you're in a public place -- a sidewalk, etc., -- you have the right to take pictures of public property and you also have the right to take pictures of private property -- as long as you can shoot it from where you are, a public place. But there are always limitations to that right. Copyrighted symbols on a sign, etc; You can shoot it but you can't show it. And pictures of people that are unfairly degrading. Generally speaking, if you're in a public place and you shoot pictures of people on private property, best to check with your attorney before you decide to publish the result.