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Family Court Philosopher:

Issue #15, 9/7/2006

Amateur Photographer: Artist or Lech?

By Glenn Campbell
Family Court Philosopher

Here is an ethical problem for my reader. I am still grappling for the answer myself.

I am a rather obsessive amateur photographer, especially since I got a new camera four months ago. It turns out that among my favorite subjects are people I don't know being themselves in public places. For example (from the science museum)...

I usually use a telephoto lens, so people rarely notice me. I don't ask people their permission before or after taking their photo. With all the 100s of photos I take (most of which I never use), this would be impossible. I just go snap, snap, snap, and then figure out only later what the photos contain. (The image above was one small part of a much bigger scene.)

I have no worries about the legality of this. Celebrity law has established that if you choose to appear in a public place, you can be photographed without your permission, and you have no grounds for royalties or saying how that photo is used. Tom Cruise may get millions per movie, but when he goes grocery shopping, the paparazzi can shoot him all they want without paying him a cent. (This is also the legal cornerstone of the "Girls Gone Wild" series: If you drop your top in a public place, even if you're not a celebrity, then it's free for worldwide distribution.)

If someone saw one of my photos of them online and asked me to remove it, I would probably comply. The ethical question is, when should I not put a photo on the web, even when I have the legal right to do so and no one asks me not to?

This has always been an issue in photography, but it has been limited in the past by practical resources. The cost of film and developing meant that photographers couldn't take many photos. Now, with a digital camera, I can shoot 400 frames at no cost. I can also publish my photos instantly on the web at no cost. This means, in effect, that photographers can be much more intrusive—and potentially destructive—than they ever could be in the past.

Here is the photo that got me thinking (from my beach series)....

Is this photo too intimate? I can tell that she is just at the age when she is the most self-conscious about her body, but I think her vulnerability contributes to the appeal of the photo. She would probably object to my publishing this photo (as would most of my subjects), but she will probably never see it, since there is no obvious way to associate it with her on the web. Due to the wonder of telephoto, I was far away at the time, and she was probably not even conscious of me taking the picture (or only fleetingly).

Yes or no: Should I publish it? I may not be violating the law, but am I violating some unwritten rule of privacy?

Although I try to ovoid overtly sexualized images, subdued sexuality is an important part of many photos. For example...

I know he's a dish, and that's how I selected and cropped it.

When my ex-wife saw my carwash series, she insinuated that it was child pornography. Are others going to make the same connection? It probably isn't a good idea for the Family Court Guy to be seen as a pedophile, but I feel a compulsion to record what I see. Sexuality was definitely a presence at the carwash, and it is what made me stop and shoot.

Here is photo from the carwash that doesn't bother me at all:

The fact that they are laughing and pointing at me implies their permission for me to shoot.

This shot is less clear....

Does this photo make me seem like a lech? (Well, maybe I am, but the important thing is do I seem to be?)

There were a lot of highly sexual photos from the carwash that I didn't use: Purty young thangs leaning over a car and soaping it up. That, to me, would have been too exploitative and voyeuristic. On the other hand, a bit of voyeurism is an essential part of the photographer's art.

For the record, I am equally attentive to the boys...

Would you want a photographer like me showing up at your event and having his way with your guests? (Come to think of it, WOULD YOU? I am available for hire.)

Here is a photo from the beach that I have no problem with....

It is just another perfect bod at the beach.

This one makes me more uneasy....

It's another perfect bod, but younger.

Have I crossed the line with the second picture. If so, where is that line?

A different but similar dilemma is this one...

It may be fine to photograph the beautiful people on the beach, but what about the dumpy and unbeautiful? Are they entitled to their privacy?

Here is a photo at the science museum that I am comfortable with...

The image is so stylized that it almost seems like a painting. I don't think anyone would object to it, but here is another photo of the same subject...

It is very intimate—probably more so than the close-up. Should I publish this photo without permission (which would probably be impossible to get, even if knew her parent)?

So tell me what to do, dear critic. Where do I draw the line?


Reader Responses

Reader "Phreedom" writes:
    If a woman with a beautiful body chooses to wear a super revealing outfit on the beach, she does so because she *wants* people to notice her. If a obese person like the one pictured above does not attempt to hid his/her obesity then they obviously don't care what other people think. In either case, I would say there are no ethical questions.

    Children are a different story. Even if your intentions are legitimate (I'm certain yours are), to simply start photographing children (at a playground, etc) is only inviting trouble. Legally you have nothing to worry about. Morally, you need to think about the fact observant parents such as myself would likely object.

    Perverts have made us parents paranoid. If some stranger is sitting around on a park bench photographing children as they play (with no obvious connection to any of the children playing), you can bet I'll ask that person to cease.

This is happened to me only once: When I was photographing teenagers on climbing a rock wall. A mother asked me who I was and I gave her my card. The shoot was already over, however, and there was no way I could separate her kids from anyone else's. I told her that she could look at the website, and if there were any photos she objected to, I would remove them.

Other times, when I am not just a passer-by or shooting from afar, I tend to get involved with my subjects and develop some rapport with them.

I understand it can be creepy to have a guy on a park bench photographing your children. As a parent, I would be just as concerned. I am aware of this potential, so I work to make the shoot more "organic" and natural, as though I belong there. For what it is worth, I rarely make parents or my subject uneasy, at least at the time of the shoot.

A deeper question is: What if there are no parents around to object and no one is creeped out at the time? Should I never photograph children under 18 or put those photos on the web?

Here's my general philosophy right now:

  • In public places, I may photograph anything I want. I am looking for "potential," and I take photos rapidly. At the same time, I avoid making people uneasy and disrupting the comfort of the scene. I am aware of the parents around me and try to avoid creeping them out.

  • At the time of selection and cropping, I avoid all scenes that are obviously demeaning or overtly sexual. I am not going to humiliate my subjects or devalue you them as people.

  • Beyond this, my editing is determined by the content of the scene. If there is some sexuality there, I will crop the scene to emphasize it. I may also emphasize human vulnerability, but not in any demeaning way.

  • If a parent or subject contacts me and asks me to remove their photo I will.

To a certain extent, I am hiding behind anonymity and the fact that my subjects will probably never see these pictures or be aware of them. Once they do discover their picture or the picture becomes linked to them on the internet, then the equation changes. Once they subject becomes a specific person rather than a generic one, then I have to consider what the personal impact is going to be on them.

It is useful to note that the carwash page are the most popular one on the website. It is linked from the football team's site and there have been 100s of hits. However, no one has asked me to change the site or remove any photo. Perhaps this is testimony to my being able to "walk a fine line" and not stray over it.

Reader Comments

“actually it is illegal to photograph people without their permission, it doesnt matter if you get it before or after the photo, but it IS illegal if you never get it, old or young people are always entiled to their human rights, one of which is privacy.” —a photography student 5/8/07 ... Response from Webmaster: It is silly to say something is "illegal" without citing the statute that makes it illegal. Where is this law? Is it state law? Federal law? What court are you going to be hauled into if you break this law? There is no such provision in Nevada statute. Of course, someone could always try to sue you, but then your are talking about tort law, not something "illegal" per se, and you have to have some case law to base your suit on. Is there any prior case law in the U.S. where someone has successfully sued someone else for taking their picture in a public place? On the contrary, there is substantial case law saying that celebrities who appear in public have no right to collect royalties on photos taken of them there. (This is the basis of our papparazzi industry.) Privacy case law generally revolves around the concept of whether you have a "reasonable expectation of privacy" in the activity you are engaged in. Do you have reasonable expectation of privacy inside your own home? Yes. Do you have it when you put on a bathing suit and go to the beach with 1000 other bathers? I doubt it.

Ratings so far: 3 (Average=3)

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