On Respect for Photographic Subjects
This comes from a real question posed by David, related to photos and recordings' relation to laws and ethics. I'm glad to see a real conversation come from my indulgence of the urge to get in the mud. The original comment:
Hi...
Question: In which of these cases is it ok to record another's voice, without them knowing?
-in a conversation with them?
-when they're conversing with someone else?
-when they're giving a lecture in a school?
-when they're giving a public performance?
I ask because I think this has some relevance to this debate on street photography/personal rights.
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Again, keeping it real...
It depends on the content and the purpose for recording it. As with anything, there are no absolutes. Even in the law, such things are often tricky, and the judgements and rationales difficult to navigate. That's why the law requires people to interpret it according to circumstances.
But for the creator of such content, the guidelines of content and purpose, whether it be photography or my podcasting.
So, if an undergraduate recorded their biochemistry lecture, who cares? It's not sensitive material. If they recorded it on a site that resold the content and charged for access, then suddenly, it becomes sensitive, because the professor's purpose for giving the lecture was not to have it sold, without their permission, for commercial purposes.
Same with photography – you can't take a picture of someone eating ice cream and sell it to Baskin-Robbins; if the people in the picture sue, unless they have signed contracts and model releases, BR's goose is cooked.
Taking a recording without someone's permission is technically illegal (I believe), but who cares if I record the people at the next table's conversation and keep it in my personal archives? If I use it on a radio show and somehow the people in the recording find out, I can get in real trouble.
That's why Linda Tripp's recordings were so morally screwed up and legally problematic – it's sensitive material (i.e. "I blew the President") and how the material was gathered (being recorded without permission) is at issue.
If you are a photojournalist (or anyone else, but most everyday people don't walk around taking pictures of sensitive things), if you take pictures, you have to know that you might be subpoenaed for the materials, even if you don't want to hand them over. Or if you're working in a poor country run by a repressive regime, it doesn't matter what your intent is if you can't secure your own person; that's something to think about.
And people complain about street photography here (apparently), but I think the issues aren't much different from audio (or video) recordings: it's about the content and the intended use. And I think that my podcast #16 ("December in Myeongdong") is actually quite similar to my street photography in that it's random snippets of real Seoul (one in pictures, one in snippets of conversation and sound as I walk down the street), with no coherent theme or story.
And I think the liklihood of someone getting hurt from the pictures about the same as the audio – sure, I might be recording the passersby saying ("...and yeah, when Mary Ann Kim slept with John Doe Lee after the Samsung office party in Dogok-dong..."), but it's probably not going to happen.
Same with the pictures – yes, a person might be momemtarily surprised to find that – out of 10 million people living in Seoul, their picture of them carrying flowers was in a photo book or some photographer's site, but in the end, it's not content that's going to affect them materially in any way.
I think a lot of this paranoia comes from an overreaction to the early days of the Korean internet, mostly. Yeah, we needed a few horrible examples from which to learn, but in the age of "UCC" and people literally taking off their clothes and dancing in pink pajamas for a shot at the big time, while the nation "ho-hums" and moves on to the next distraction of the week, there's not going to be much that will gather the interest of the nation. Even the couple near-naked dancing on the car in the 2006 World Cup (a Korean girl with a white guy – oh, the horror!) was kind of like, "Well, umm...they're kinda lame. She's stupid, but oh, well...") She wasn't leaving school and changing her home address because of it.
Anyway, it's about the content and the purpose of it being recorded. I've gotten email asking "What if I recorded you in a compromising position and put it on the Internet?! Huh, huh?!" Well, you'd be a) recording me in a compromising position on PURPOSE, so the content itself is questionable, and b) you'd be doing it to hurt me. Pretty much the opposite of what I do.
If I were to publish a picture of say, a drunk salaryman vomiting, my goal wouldn't be to destroy his life to prove a point, nor does his individual identity matter to me. In fact, I'd probably choose a shot in which he was blurry, to protect his anonymity, but the fact that it was a salaryman in a suit vomiting would be clear.
A good and similar example is above, where I chose one of the artistically worst out of several shots, since the faces were clearly visible in others, but I chose to publish the one in which the least faces were shown (a friend is shown there, but it's small, blurry, and you're likely not going to lose your job or wife over having been there to help an unidentified drunk friend), especially the one of the person in question. And I lucked out because you got some depth to the picture with the alley, which also helped contextualize it. But there were other shots that showed more – I still erred on the side of politeness and caution, since I think about the possible harm that might come to subjects, although I think that highly unlikely.
So I conveyed the point – such scenes are as much a part of night life in Korea as any kids playing in the park wearing hanboks on Chusok, stuff that I am completely unconcerned with – without compromising a subject. And frankly, such scenes are so common, and/or something that is such a part of anyone's individual experience, that having been drunk like this is still not going to get anyone fired. Frankly, such an eventuality ("public drunkenness", which is an actual crime in the US, but not in Korea) would likely be much more problematic in America than in Korea.
And what anyone thinks about what this says about "Korea" – I don't work for the Korean National Tourism Organization, nor some imagined Society to Give Korea a Bad Name in the International Community (SGKBNIC); I'm just a street photographer and I shoot what I see, the rhythms of everyday life. And if you actually walk around any Korean city on any given night of the week, you will see drunk men in suits staggering about, women consoling their suddenly sad (and very drunk) friend, and vomit on the sidewalk in the morning anywhere in Chongno is probably about as common as doggy doo on the sidewalk back in the US.
Is it "good?" Is it "bad?" Well, if you're the kind of person who thinks that shooting a man carrying flowers is "anti-Korean" – well, you're already pretty paranoid, and a lost cause for me, anyway.
It's like my favorite prostitution picture, in which it having been shot on 1600-speed, extremely grainy color film prevents any real detail from being shown, combined with the fact that the subject's face is too small to make out any distinct features, what with the obvious wig/hair salon special she's wearing, or the standard outfitting of false eyelashes and a pancake of makeup. I dare even her best friend to try and recognize her in person, let alone through the wide-angle lens of a photographer driving his car with one hand, nervously pointing his camera through a tinted-glass window.
You can make out enough detail to see her expression, but not actively identify her; she could be anyone. Even if the woman in question recognized herself, she'd have a tough time even proving it was here, beyond a shadow of a doubt, in a court of law to even sue me in the first place. That's why this is the perfect picture.
For all those who disagree, and think my intentions somehow evil, let me just say that if I could show you the one picture I can never show in my defense, this particular argument would be over. Done. It's a high-resolution digital shot of a woman in a similar position, but it's razor-clear, and chock full of detail and character.
Personally, I think mine to be technically much better and more honest than the one below that was published in the SF Chronicle (with no concern being given to Korean law, in terms of the subject, whose face is clearly shown – the only reason I republish it here is because it's been linked to and passed around the 'net to no end, with even progressive American NGO's linking to it, who never don't consider this a problem because hey, it's not my society, right? – at least I can make a good point with it, since the cat's out of the bag); you'll never know, because you'll never see that picture. I'll never publish it.
Just for the record, my picture shows what is more typical in these areas after anti-prostitution law – girls sitting around between customers, typically knitting (a fad these days), chatting, or taking a smoke; my shot was of a woman singing along to a pop tune on the radio, and was full of rich details, such as a "protect youth from violence" poster from a government campaign, beauty supplies, clothes in the back, stuffed animals, etc. And that was gained by getting my ass out of the car, walking by and breathing the same air as my subjects, risking getting caught by the thugs in the area, and not pulling the sneaky move of shooting out of a car window, catching them as they noticed the camera and then driving away.
What I don't like about the picture is that the apparent look of disdain and sneer on the face of the women in the picture comes from realizing that they're being photographed more than from the apparent plight in which the Chronicle obviously has a vested interest in proving these women are in.
And before you good feminists get all up in arms because you think I am saying that these women aren't in some plight, I'll just say that no matter what I think about the institution, when I'm photographing, I take the mission of capturing what I find dead serious. When I was nervously walking through Yongsan when I got the pictures I was describing earlier, I wasn't looking for a particular booth, or a kind of girl, or look; I was just walking, snapping, walking, snapping, with my remote plunger in my pocket going off at every stall (if I actually had the camera to my eye, or even my hand on the shutter, I would have been surely stopped by the watchers in the area, who are there to protect the girls, their business, and their interests – and that doesn't include media people taking pictures); when I came back to my monitor at home is when I found gold.
And there's gold there, in the sense of a couple pictures that shed much more life, even in single shots, and give the women in the windows much more complexity than the pictures that appeared in the Chronicle. And I wonder why, if the Chronicle respected their subject enough to blur the picture and omit the face of one of their main informants, they were OK with plastering the faces of these Korean prostitutes in Korea all over the Internet?
In American terms anyway, what they did was legal. The girls were in a public place. And realistically, they're not going to be sued internationally according to Korean laws for shooting a hooker. Photographically, though, I thought the Chronicle's moves pretty disrespectful of the subjects in Korea, highlighted by how extra-sensitive they were being to the main subjects – who also had vested interests in proving they were being trafficked and getting on the fast track to a green card.
Say what you want about me poking the sacred cow of the trafficking issue in the ass, but that's something that bothered me about the whole "exposé for the sake of these poor women" that was worked by the Chronicle. Why is it that they seem to show more care to the women in the US than to the women they came to photograph in Korea? Aren't the future prospect of the passionately-described "Youmi" of the feature as important as the unnamed Korean hookers whose faces are shown without a moment's hesitation across the Internet?
That's why I get so steamed about people calling me or my photography or this site "anti-Korean" or that I disrespect my subjects; if you knew the pictures I have held back on (and continue to), even when foreign photographers are showing up to cover and shoot topical issues about which I've got better material and access on hand down – and could simply push the "publish" button on my blog to easily prove it...I don't.
And that's out of respect for my subjects, respect for Korean law, and for wanting to continue to function here as a photographer in Korea. As a no-name photographer, it was tempting to pull out all my best stuff and jump on the bandwagon – how easy would that have been? To make a mega-post about prostitution and populate it with those money pictures I'd never shown before? Let me tell you – fucking easy.
I'm not trying to make myself out to be some saint – I'm just trying to tell the haters: if only you knew the choices I make when editing, you'd know that if this photographer/blogger/podcaster actually "hated" Korea – wow.
But I make virtual promises with my subjects to basically not fuck them, nor step over ethical lines. Hence, no matter how much I rant and rage about the education system here, I keep my camera off when it comes to the kids I teach. Even when I come to hate certain of the institutions who quite literally fucked me. Because one thing (my having been screwed) has nothing to do with the other (my kids and the implied assumption that, as a teacher, my kids' privacy comes first, my being a photographer is secondary).
Anyway – what I have described above is just one example of how content and intent, as well as affective commitment to the place you're at, where you call home right now, affects the artistic and ethical choices you make.
And for those who think this results in being "anti-Korean" or "unethical" or whatnot – I just have to say that you are definitely either overly paranoid and nationalist, or you have no direct experience with having produced and published anything yourself. And if you combine the two, without asking the intelligent kind of questions that David did, which allowed me to formulate a clear answer – that you have to think about content and intent, along with a respect for the subjects while balancing the desire to express something in general, and that there are no black-and-white – then it's difficult to say anything particularly useful.
While I enjoy your photos, I think you would do better to admit your practice is unethical. Don't you think keeping potentially harmful photos in your possession that could compromise the safety or reputation of others unethical? Even if you don't publically display them, your camera or files could get stolen, leaving your subjects extremely vulnerable. France passed its laws for a reason. I take photos discreetly, but I do so wrapped in an air of crime, because I know that what I'm doing is vaguely unethical and potentially harmful to others.
Posted by: Beechtree | April 30, 2007 at 10:26 AM
Why would I admit something I don't think to be true? I think the content of my photos, combined with the unliklihood that they will be stolen and passed around the Internet (someone could have broken into the house and darkroom of any newspaper reporter, photographer, etc. at any time – therefore what they are doing is unethical?) is enough, in the real world, to do my work.
My activity is no more "wrapped in an air of crime" than any newspaper reporter who actually tends to cover sensitive stories, or events of any real importance. On the contrary, I have a few potentially sensitive images (out of literally tens of thousands) that don't involve the faces of protestors, politicial dissidents, or whistleblowers; I'm not a PI with pictures of couples in compromising positions and places, surveillance photos, or people committing actual crimes.
Go talk to those people. My pictures are defined by them taking place in the mundanity of everyday life.
Those laws in France were "made for a reason." Nice, non-specific argument that actually adds nothing factual to the argument. What was the reason? To protect the sanctity of photographic subjects from the eventuality of a laptop getting stolen (all my digital files and negatives are in my home, by the way – I don't keep anything damning or embarrassing on my laptop). And if this were the States, I'd be working on the assumption (however unlikely, but it's best to be prepared) that I might lose my laptop against my will (getting mugged), something unlikely to happen in Korea).
Anyway, someone breaking into my house, cracking my computer's code (Mac OS X) and then opening my files and publishing them online – hmm...sounds like not at all a reason to stop taking pictures.
Seriously, BT, do you live in the real world according to all these unlikely "what if?" scenarios? It's far more likely, of all the things that will happen to me in Korea, for me to die in a horrible car accident than some phantom robber come in my house, take my computer, hack it, then upload the files (which then leaves digital clues as to who took it and where they are) to the 'Net.
Come on. That's a reach – at best.
Posted by: The Metropolitician | April 30, 2007 at 11:02 AM
Michael, what is Korean law's justification for freedom to take photography in public places? I know in the U.S., it's generally considered that the benefits in social documentary and commentary that fall under "free expression" are ultimately more important to society than any potential harm that could come to an individual whose photo is taken. And in general, I'd say the average American subconsciously agrees with this assessment. I'd be curious to know why not in Korea, what the legal reasons for the law is meant to be, etc.
Personally, I think the French Civil Code is ridiculous on this subject, but French society is one in which people are keenly sensitive to embarrassment and ridicule. It makes sense culturally that they would have such a law, even though it works against the interests of their society. There is a Quebecois photographer named Gilbert Duclos (Quebec defers to French Civil Code on this matter) who has put together a documentary on the subject (he lost a famous court case brought against him by a subject who claims she was teased after a photo he took of her sitting in front of a bank appeared on the cover of a literary journal). I haven't been able to see it and can't seem to find it anywhere, but maybe you'll have more luck, if you're so inclined. It's called La rue Zone interdite and was made in 2005.
I think just as there is a danger when the government and business interests intrude on our private spaces, there is also a huge danger to society when public spaces cease to be transparent and documentable. Another troubling facet of the "right to one's image" is the commodification of the human image--that the only value it has is as something to be owned, bought, and sold.
Posted by: pm | April 30, 2007 at 12:59 PM
Now, I'm no expert when it comes to photography but when I look at Mr. Hurt's "photo essays" I can't help but feel a glaring contradiction. Mr. Hurt pontificates on the "construction of the feminine" in Korean society and proclaims that his photography attempts to deconstruct and breakdown such concepts. However, when I look at his photos I don't get that feeling at all. Rather, when I simply look at the photo itself-sans Mr. Hurt's pedantic expositions-I get the distinct feeling that Korean concepts of femininity are actually being bolstered rather than critically analyzed or for that matter undercut.
The way Mr. Hurt composes his shots in the end seems to admire-if somewhat grudingly-how femininity is expressed in Korea. When I look at Mr. Hurt's photos Korea comes across more as some sort of urban exotica than an actual place where human beings breath, sleep, eat, cry, laugh, die and live. In some ways Mr. Hurt's photos remind me of Edward Curtis' photos of American Indians. While Curtis ostensibly claimed to have photographed Native Americans for posterity's sake, in more ways than not he simply stylized and made sexy the idea of Native Americans. And that's the real rub with Mr. Hurt's photos as well: rarely does the photography deepen and widen ones understanding of the subject and themes at hand. Instead, Mr. Hurt's photos inculcate attitudes and affectations, and not necessarily the ones he claims to aiming for.
Anyways, those are my personal, subjective impressions of Mr. Hurts photography. I didn't write all this to denigrate or criticize your work but merely to express my own views on what Mr. Hurt's photography has meant to me.
Thank you for your time.
Posted by: Oh You Know Who It Is | April 30, 2007 at 01:07 PM
Michael, I think that it is wrong that you are republishing the shot of the prostitutes you (justly) criticise... Perhaps some blurring of the faces and a commentary saying that you did the blurring and why would be more appropriate? (I don't say unethical, I am no judge, no moral authority.) But I agree with you.
By the way, by publishing this picture on your site, you are probably violating the owner's copyright. If you are so sensitive to Korean laws and laws in general, it is contradiction, isn't it? The argument "Others did it first." is a bit childish, don't you think?
Anyway, I don't think you are a monster, so don't take my critics badly.
About the French law, as a Frenchman I suddenly feel the burden to represent my country (no, I don't like that because I am just a random Frenchman) and dig up some informations. The best summary I found can be found by typing "loi photographie". The first hit by Google leads to a the CRDP, a French national database of documents at the disposal of teachers. So it is a trustable source but not authoritative (only a lawyer would be, in this case). The most interesting excerpt is (remember this is not the text of the law but a summary of it and its recent applications):
Which I dare to translate into
So, Michael, I disagree with you when you say that street photography has been killed by this kind of (strictly enforced) law. I still believe that you are mistaken about the nature of "street photography" because great photographers of the past never made public that they used to pay models for what it should be more proper to call "portraits in the streets." In short: if the person is the subject of the photograph (read: it is a portrait), then this person in France owns absolute right to her/his image as far as communication and publication are concerned. Indeed, you can keep this photograph for yourself, of course. On laptop if you like:-) Publication supposes the intention to make public. But you cannot give the shot to a friend, even privately, without the subject's consent. It reminds me the right you have in France to make a private copy of a music CD, but not to pass it to someone else.
I hope this clarifies a bit the debate about France "strange laws" (read: non-american like, i.e., oppressive, since too many Americans tend (not you, Michael) to ignore other kinds of democracies and believe that the USA is a model for the world to follow gladly --- the same self-righteousness that is called "arrogance" when the French make use of it.)
Posted by: Christian | April 30, 2007 at 02:35 PM
Thanks for the comments -
Well, you're right, it's a contradiction (as I acknowdged in the post), but it's already a part of the public domain, and the story was widely reported in the Korean news, so if any harm came/comes from the picture, the damage is done. And as I said, at least some good can come from it if it's re-presented here.
And as for "copyright," I wasn't talking about copyright at all, actually. As is the case for most blogs, people reuse content all the time, and the law is being rewritten, selectively ignored on this one. My guideline is to always credit other people's work, and to provide a link where possible. And nowadays, smart photographers and newspapers are embedding their names in the photo itself, knowing that it is likely to get reproduced somewhere else. This is the developing idea behind the "Creative Commons" version of the copyright, and I think it's ethical and fair. People getting credit for their work, and in the process getting more people linked back to it; I reproduced a single picture from a complete essay – so it's far more likely that people interested in it will click back and look at the others, or Google the photographer's name; so I – and many other bloggers like me and others who interpret the intent (and even the letter) of copyright law differently, don't think there's any problem with taking excerpts of other peoples' work, commenting on them, and linking back to it.
If someone did the same for me (as they often have), I'm flattered and grateful. And I never "deep link" into others' sites, either – I always take the graphic and serve it off my own server, off my own dime, because I DO think that deep linking and serving it up on your own page is pretty shady. And I don't wholly reproduce works here, but always use excerpts and link back. So that should cover my views on that.
I want to look more into the French situation, but I'll superficially remark now that it resembles the Korean one a great deal; and from what I've heard, it indeed has killed street photo as published in France, even if some people practice it in the nooks and crannies. Paris used to be one of the world's centers for street, all faking and paid actors included. Now, it's just not, from what I've read.
Let me get some more info about that, titles, and ideas – when I get home and in front of some of my books.
Posted by: The Metropolitician | April 30, 2007 at 05:22 PM
As for the breaking down of images of Korean femininity, the text does most of that, as an analysis of the pictures. And if you had actually read the text, you'd know that I talked about the inherent contradiction of utilizing a fetishizing male gaze to try and tease out something interesting from the way women fetishize themselves as objects of beauty and sexual desire.
So my base assumption is that there is a tension between the gazer and the gaze, and that the nature of my personality, heterosexual desire, and my being an outsider is what colors the work; it doesn't invalidate it, but in fact arms and informs it.
So you put it perfectly – I "grudgingly admire" – and desire and fetishize and resist and criticize these constructions. To "deconstruct" doesn't mean to "negate" or oppose. It means just that – breaking down into more digestable, understandable, or anazylable elements.
And I'm sorry for the "pedantic text" that you admit you looked at the pictures without, but the whole point is that it was part of a BOOK talking about the subject, so the text, umm, kind of...matters. Duh.
So I actually agree with you. It's a fractured, complex, and at times contradictary view, and the camera INEVITABLY objectifies and fetishizes the subject, a process that I fully acknowledged from JUMP and actually explore throughout the book.
"Oh You Know Who It Is" basically repeated what I said in just about every post I did on "fetishized femininity."
RTFM, dude. (Replace the "M" with "manuscript" in this case, though.)
Posted by: The Metropolitician | April 30, 2007 at 05:31 PM
"Si le sujet de la photographie est une personne, celle-ci, fût-elle inconnue, possède un droit absolu de s'opposer à l'utilisation de son image. Ce droit est assimilé à la notion de vie privée. Avant de pouvoir utiliser la photographie concernée, il faut s'assurer que la personne photographiée ne se trouve pas atteinte dans le respect de sa vie privée et de son image et qu'elle ne s'oppose pas à la communication de cette image. Ce droit à l'image déborde le seul cadre de la sphère privée. Des personnes se sont opposées à la publication d'une photographie les représentant dans un lieu public, dès lors qu'elles apparaissent comme étant le sujet de l'œuvre, en raison d'un cadrage ou d'un recadrage. D'autres, dans une photographie de groupe, lors d'une manifestation de rue, ont exigé que leurs traits soient rendus non identifiables."
Hello Christian,
remember me from the (presently inaccessible) Asia Pages ?
Yes, I know the passage you are quoting here very well, as this represents the law all over Europe due to a judgment of the "Cour Européen du Droit Humain", which is based in Strasbourg (France), but is the competent court regarding human rights issues for all signatory states. You know that, although I am a German citizen, I've got a British law degree and took a seminar class about the topic in the course of my studies.
I fully agree with you that the law, as it is set out above, suitably reflects the social mores of the people in the various European countries. In my view this is one of the essentials of the European identity.
If my own picture were taken without my permission ANYWHERE IN EUROPE I would definitely be willing to put up a fight.
On the other hand, I am, on the basis of my legal education, also full well aware that there is a huge diversity as to the appropriate views on the subject. And, without any detailed knowledge about the American or the Korean position ( customary or legal) I am unable to state an opinion about whether Michael's practice is unethical or not. Customs, and even the law, differ widely from place to place. Behaviour which is perfectly okay in one place may be regarded as offensive in another...
All I can say with confidence is that Michael should never let himself be caught acting as he does ON EUROPEAN SOIL, as people over here see his practice as a serious intrusion into their rights to their own image, and they are supported in their view by the law.
Posted by: Fantasy | April 30, 2007 at 06:44 PM
The gaze of the street photographer is by nature that of an outsider, even when s/he in an "insider" in the context s/he is documenting. The act of gazing through a lens puts the photographer at a critical distance from his or her surroundings. And it immediately imbues the resulting image with the subjectivity of the photographer. It's one of the beauties of photography--simultaneously one of its limitations as well, but photography wouldn't be the only art of which the limitations also define its character and give it its particular character and, often, poignancy.
As for French law, I don't feel it's ridiculous because I'm an arrogant American who thinks everything should be the way it is in America. I feel it's ridiculous because I take the side of French photographers and citizen journalists who are having a hell of a time with the droit à l'image issue. It's a real problem for freedom of expression in France.
http://www.macworld.com/news/2007/03/06/franceban/index.php
http://www.rsf.org/article.php3?id_article=21903 (Français)
http://www.rsf.org/article.php3?id_article=21731 (English)
http://www.leblogmedias.com/archive/2007/01/17/quand-l%E2%80%99image-se-retourne-contre-le-photographe-1-2.html (Part 1 of 2, French only)
http://www.leblogmedias.com/archive/2007/02/09/quand-l%E2%80%99image-se-retourne-contre-le-photographe-2-2.html#more (Part 2 of 2, French only)
Posted by: pm | April 30, 2007 at 07:19 PM
That should have been "Cour Européenne du Droit Humain". Sorry for the spelling mistake.
Posted by: Fantasy | April 30, 2007 at 07:32 PM
"Personally, I think the French Civil Code is ridiculous on this subject, but French society is one in which people are keenly sensitive to embarrassment and ridicule."
PM:
It is not just the French Civil Code - it is the unanimous opinion of the judges of the above-mentioned Strasbourg-based court.
Now, then again both the US and the ROK are outside the jurisdiction of this court...
I remember that, a couple of years ago, in Heidelberg, Germany a friend of mine caught an American tourist taking his picture without his consent. As this was still in the age of chemical film he demanded that the film should be be handed over to him. The stranger refused to comply. My friend, being a much taller and stronger man than myself, grabbed the camera and threw it into the river.
Do I condone his actions ? - No, not really.
Can I understand his actions ? - Definitely yes.
It is simply a matter of respect.
But, okay then, social mores elsewhere in the world may well be different...
Posted by: Fantasy | April 30, 2007 at 07:52 PM
"Anyway, someone breaking into my house, cracking my computer's code (Mac OS X) and then opening my files and publishing them online – hmm...sounds like not at all a reason to stop taking pictures.
Seriously, BT, do you live in the real world according to all these unlikely "what if?" scenarios?"
The basic fact remains that, even after you are caught in the act of photographing someone without permission, you maintain your right to possess that image even when asked to erase it. Against your subject's will, you possess that image, and you demand that they trust you - a total stranger - not to put that image to potentially harmful use. This I find unethical, as it leaves the subject helpless. It is unethical that you demand trust of people who don't know you.
Posted by: Beechtree | April 30, 2007 at 08:51 PM
I agree with Beechtree. On the other hand I like Michael's pictures. A conundrum which is well-nigh impossible to solve...
Posted by: Fantasy | April 30, 2007 at 08:54 PM
I bascially think you are all fanning yourselves up into a fury over theoretical situations and gradnstanding more than anything else.
First, 99% of the people whom I snap never even notice, and are doing nothing more interesting than just breathing or eating an ice cream cone, so the idea I am snatching someone's image "against their will" and somehow by an apparent "refusal" to hand over the goods, I am violating their rights. And what if someone breaks into my house and starts spreading pictures of them doing absolutely nothing?! And by extension, your arguments would call basically all photography done outside a studio illegal. [Eye roll.]
And to Fantasy – so, your argument includes a reference, in order to tell me how unethical *I* am for being careful to be discreet, not disturb my subjects, and be vigilant about insuring that no conceivable social harm come from the images I publish, if I am caught, somehow it is "understandable" if I am met with forcible theft and physical threat to my safety (surely the only reason a fight didn't ensue with the tourist you describe was because he was either scared because he was outnumbered, or considerably more civilized than you two) if I snap someone's picture.
You didn't request the film – which you had no legal right to demand be given to you right there – you ordered under threat of force and carried it out; and on someone you yourselves identified as a mere "tourist." Uh huh. And you "understand" that, huh? A tourist, of all people, who, even if you were kind of irritated at being photographed, was probably just taking a picture of something that looked somehow interesting to him on the personal level, not as something that would go in National Geographic.
If this is the logic of the people in Europe, no wonder many photographers call laws and attitudes such as this "crazy."
Your friend should have been convicted of theft and assault, and Fantasy as an accomplice, which you were, since you were with the party in question and part of the threat that allowed you to take the camera and prevented a fight from ensuing.
Had it been me surrounded by thugs like you – which is what people are who take tourists cameras from them by force and throw them in rivers – I would have lost it and at least taken one of you with me; and I don't know how German law treats assault, but in the States, the act of touching my person and taking my property by force constitutes assault, but not battery (from my understanding of the law) and depending on the value of the camera, the act of theft could be a felony. Were it my digital camera in the river and me wrapped around your friend on the ground with passersby holding their hands over their mouths, when the police came to sort it out, I would probably be let off with a misdemeanor since I didn't start the assault but was the victim of essentally a mugging, and your friend would likely be up on felony GRAND theft and assault.
Maybe with the threat of force, I'd erase an image if I were surrounded by a group of thugs like you. But I'd go to the mat for an entire roll of film; and since the pro often used to ensure EACH image for several thousand dollars, your might be talking $20,000-30,000 in camera and film damages alone, before even getting to legal fees and other incidentals.
So at least I know the calibre of some of the people I am speaking with. Taking a picture has the same moral weight as assaulting and threatening people you yourself acknowledge was "just a tourist."
I guess we're on completely different planes, of reality, "Fantasy."
Your online moniker makes a lot more sense now.
Posted by: The Metropolitician | April 30, 2007 at 09:42 PM
"Had it been me surrounded by thugs like you"
I object to your calling Fantasy a "thug." That is beyond the call of reasonable and respectable discussion, at least according to what has been impressed upon me recently. Fantasy did not condone the friend's action and said so explicity.
"First, 99% of the people whom I snap never even notice, and are doing nothing more interesting than just breathing or eating an ice cream cone, so the idea I am snatching someone's image "against their will" and somehow by an apparent "refusal" to hand over the goods, I am violating their rights."
First, arguing improbability is not an arguement. Its improbable on any given day that you'll get into a car accident, yet not wearing a seat-belt, or more to the point, allowing your kids in the backseat not to wear seatbelts, is unethical. Now also, should someone become aware that you have just recorded their image, and then asks you to erase it, your refusal to do so is unequivocally unethical. It violates their right to move unharrassed through public spaces and takes away jurisdiction over their own image. Why should they trust you will not put that stolen image to harmful use?
I'm not against taking public photos. As I said before, I do it myself. But I do it in the full knowledge that it is unethical. The law may protect me, but I am acutely aware I have violated the privacy of another, particulary if I'm caught yet refuse to erase what I've recorded.
Posted by: Beechtree | April 30, 2007 at 10:20 PM
"Your friend should have been convicted of theft and assault, and Fantasy as an accomplice, which you were, since you were with the party in question and part of the threat that allowed you to take the camera and prevented a fight from ensuing."
Hey, hey, Michael,
not so fast, you may be a great photographer but you clearly are not very well versed in the law - and, by the way, you seem to become quite aggressive if someone disagrees with you (just as much as this friend of mine becomes quite aggressive when he is faced with something he, rightly or wrongly, believes to be justified in taking offence in).
Let us go into a little bit into detail here:
"Your friend should have been convicted of theft and assault, and Fantasy as an accomplice, which you were, since you were with the party in question and part of the threat that allowed you to take the camera and prevented a fight from ensuing."
independant of the question whether my friend has committed a crime (I'll talk about that later), there is no way I could be regarded as an accomplice because
1) I was not present and the story was merely relayed to me after the fact.
2) Even if I had been present, to be regarded as an accomplice, I would have to be in a position of authority or guardianship to qualify as an accomplice - or alternatively I would have had to instigate aid or abet the crime (if any such has been committed). Merely "allowing" something to happen which you have no duty, nor even possibility to prevent does not qualify anyone for complicity.
Secondly, on the question whether my friend committed a criminal offence, the legal position is the following:
Taking the camera and throwing it into the river could not possibly be regarded as theft in German law, as my friend did not take the camera with the intention of keeping it, which is a necessary requirement for theft. It could however constitute the crime of "Wanto destruction", as, by throwing it into the river, the camera was rendered useless and thus, although it did not physically perish, functionally destroyed.
Here does, however, the question arise whether the destruction of the camera was justified on account of the stranger's refusal to hand over the film. The refusal to hand over the film constituted a "Civil Wrong". Civil wrongs do not constitute crimes punishable with whatever sentence, but they permit those wronged to resort to reasonable self-help in order to rectify the wrong.
My friend's grabbing the camera constituted such "reasonable self-help".
But then he went astray. He should have taken out the film and destroyed - under no circumstances would he have been allowed to keep it, as this would have constituted theft, and moreover a violation of the rights of those other people whose images were caught on this film, lawfully or unlawfully, prior to the incident.
Not merely destroying the film but destroying the entire camera, however, constituted a self-help excess". It was unnecessary in the circumstances, and thus unlawful. This does, however, not justify the wrongful refusal of the stranger to hand over the film or, alternatively, destroy the respective picture in a different way. Therefore, if a policemen had been on the spot, he, in all probability would have told all the parties to cool down - but would in all probability refused to take any action on anybody's behalf...
Posted by: Fantasy | April 30, 2007 at 11:13 PM
OK, so you weren't there, but it sounded like you were in your post. That's all I had to go on: "I remember that, a couple of years ago, in Heidelberg, Germany a friend of mine caught an American tourist taking his picture..."
Usually, "I remember that..." says to me that the person was there. Sorry if I erred.
As I said, if it were AMERICA, my understanding of the law is that you can't touch another person and forcibly deprive them of their property. Unless I am mistaken, you would have been guilty of theft and possible assault, depending on how the camera was wrested away, which surely wasn't without a struggle.
Anyway, if you're talking about "ethics" with that story, you're losing the ability to convince me. Whoever your friend is is a thug. Sorry it that sounds "offensive," but then again, I don't deprive people of their property and destroy it.
Grabbing the camera is not "reasonable."
Posted by: The Metropolitician | April 30, 2007 at 11:54 PM
Michael,
even if I had been present (I wasn't) I would not have been under an obligation to meddle in, not in Germany, not in Britain, certainly not in the US. This obligation arises only from a special and intense relationship to either party, e.g. as a parent, as a teacher, as a superior, or as a tour guide...
Otherwise, bystanders (even if they are casual friends of one of the parties to the quarrel) are merely obliged to abstain from fueling the fight, or from trying to take advantage of the situation in any way.
If the entire thing were to really get out of hand there may possibly arise an obligation for the bystander to intervene. However, the existence of such a duty is a very tenuous concept, and is qualified by a huge number of conditions. Except in an extreme case (danger of death or serious bodily harm to one of the parties involved) you would never be able to get a conviction on that count, not in any legal system known to me, certainly not in any state of the US...
You utterly fail to understand that my friend, although he went over the top with his actions, had a right to exercise legitimate self-help against the "civil wrong" committed against him, namely his picture being kept by the stranger, although he, as soon as he had noticed it being taken, had started protesting vigorously - and the American tourist simply had shrugged his shoulders and moved on.
What would have happened, if a German policeman had been present on the scene ? He would have requested the tourist to delete the picture - but there is the problem with CHEMICAL film that it is impossible to delete simply ONE picture. Thus the policeman would have demanded that the entire film be destroyed.
And what would have happened if the tourist still had not complied ? Well, he would very likely have been arrested for obstruction and remained in custody until he had surrendered the film to the authorities, so that it could be destroyed (not kept !) by the officer in charge.
Michael,
you are blogging so much about cultural differences, and that is why we are reading your blog (well, most of us, anyway, I guess). Yet you simply fail to understand certain very basic differences in cultural concepts, and you simply assume that everything should be everwhere as it is in the US (and occasionally you are misrepresenting US law, as well, see above). In most European countries it is quite simply considered a basic human right not to have your picture taken against your will. Full stop.
Sure, there are exceptions. But these only apply to situations which are of an outstanding interest to the public, thus something entirely out of the ordinary...
If you find that wrong, so be it. But such is the law here, and such is the conviction of the vast majority of the inhabitants of this continent.
I'll give you another example of a cultural difference:
In Saudi-Arabia it is forbidden to chat up women who are walking alone in the street (probably you would find none, anyway). Should you ignore this provision you would get into very serious personal AND legal trouble. You and I may find this stupid - but make no mistake, this provision of Saudi law is in accordance with the social mores of the country and enjoys the support of the vast majority of the population. Thus, going against it would clearly be a quixotic endeavour which serves no useful purpose...
Posted by: Fantasy | May 01, 2007 at 06:02 AM
Just accept the fact that people's rights not to have their picture taken trumps your wish to take pictures of them. And this holds true irrespective of whether you have a commercial or a mere intellectual motive for your wish to take their pictures.
No ifs, no buts, just a plain, simple, crystal-clear rule...
Posted by: Fantasy | May 01, 2007 at 06:51 AM
"Grabbing the camera is not "reasonable.""
This course of action is reasonable unless there is another remedy available.
However, disposing of the camera and thereby rendering it unusable is definitely not reasonable, and thus illicit, just as I've said in my comment above...
Posted by: Fantasy | May 01, 2007 at 08:16 AM
Michael, with respect to your question about audio recordings, the position under Korean law (the Communications Secrets Protection Act) is this: So long as one party to the communication (i.e., you) knows about the fact of recording, it is lawful to record. This is applicable to telephone conversations -- did you know that every cell phone in Korea is able to make a recording of conversations? -- as well as to the placement of hidden microphones in a conference room or other space. The key consideration is whether there is knowledge (and, therefore, implied consent) of at least one participant.
This means that making audio recordings by secret installation of recording equipment, or by wiretap, is unlawful except by law enforcement acting under authority of a court order.
Posted by: Brendon Carr | May 01, 2007 at 09:23 AM
How does one know if his/her photo is being taken in Europe? If I am using my 400mm Sigma lens and I shoot in the general direction of some people do they have the "right" to see what photos I have taken (digital)?????
Posted by: Richard | May 01, 2007 at 08:30 PM
THanks Brandon.
And to Richard, I think the problem here is that people are extending from legal principles and theory all the way down to reality. In the real world, in the everyday, no one notices the vast majority of pictures I take, and I don't use the vast majority of what I shoot. On the rare occasion that someone says something, I generally meet their query as to whether I took their picture with "yes, I took a picture of you" (I don't lie) and ("그냥 사진작가입니다...죄송합니다") and that's fine for most people who even bother to ask, out of the minute percentage that even notice. If they push further, then I give them my name card if I have one, all my contact info, and say that I'm just a street photographer and not some weirdo. And it's only gone that far with like 2 people in my entire time shooting here. And the one time one guy wanted to get physical, he was just looking for an excuse and was nasty from the gitgo. So I was nasty to him.
I am polite and respectful to a fault when I am shooting. One can go on and on about photo theory (and I've been known to), and that has its place, but if you're actually out on the streets interacting with real people, the rules of common sense apply the most.
And it says something that the two times I was actually nearly physcially assaulted was by drunk assholes who thought I had taken their picture and hadn't – in fact, were they sober, they would have known I hadn't. But they were just looking for an excuse.
So, had I been assaulted by them, I would have been a mere victim of this photo paranoia that has people going to the point of getting violent, and I think that being a foreigner had something to do with the hostile encounters I've had, as 2 of the 3 times things got really tense was in cases I never even took a picture of the person in question.
So from my experience, by the time people get riled up enough to demand, under threat of force, that you delete images (not as a request but as a demand), or that they take the camera from your person – it's not even about talking or being reasonable anyway; you might as well put your dukes up and get ready to defend yourself.
That's my read of the situation. When I take picture and a subject notices, I generally give an apologetic smile and give a little "bow of apology" and that's enough. Because it is. In my experience, not based on the grandstanding moralizing of posters who don't even shoot everyday, much less in Korea, taking pictures of people isn't an issue to anyone except the few people who need anger management classes.
People can say I'm an asshole for keeping the sacred images that capture people's souls on film and somehow I am holding an anvil over their head as they wonder for the rest of their lives if I am going to publish that picture of them walking down the street and destroy their careers and families...but that's blustery blog comment moralizing, as opposed to anything real.
Generally, I have nearly no problems taking pictures here; what makes me nervous and pisses me off is that the POLICE and people who should know better don't interpret the law properly or fairly according to the LAW; when you're the police, that's all you should be thinking about because...you're the police. Not the photographer, not the complainant.
What do I do? Realistically? I shoot in Myeongdong a lot. So I introduced myself to the guys in the station there and asked them lots of questions about the law, which they hemmed, hawed, and ummed about, and in the end, just said, "Just be careful and try not to piss anyone off." And they made it clear that the only way I could really get in trouble was if I was accused of sexually harassing someone with the camera, which in Korea generally involves secret cameras, special fiber optic cables under desks and in bathroom stalls, waiting at the base of the stairs with a zoom lens, etc. And standing in the middle a busy intersection with a big black camera in plain view doesn't qualify.
And if somebody insisted on calling the police and trying to argue in that one way that could get me in trouble, it'd be pretty hard to argue, on top of the fact that I'm a legitimate photographer in the eyes of the guys in the station, even if I did piss someone off. And usually, showing that I'm a real photographer and not the runner of the imaginary porno site that puts the heads of ordinary women on top of porno actresses – that's enough. We're not trying to prove whether or not I'm an ASSHOLE (even if all you guys are convinced I am); being an asshole isn't a crime. That's my point.
And for all the grandstanding that certain people are doing here ("I take such pictures, too, but at least I admit it's unethical") – please. At least I have defined why I do what I do and that I do NOT believe it to be either illegal NOR unethical. At least I practice what I preach, even if you disagree with my point of view.
If you believe taking street photos is unethical, then don't do it. I am explaining why I do take photos and do not believe it poses anything other than at MOST theoretical ethical problems, ones that can be avoided by being careful and conscious of one's subjects and their feelings, in the end.
And I'll say this again, if anyone ever indicated that they didn't want their picture used or published, I abide by it. But I don't allow people to touch my camera or force me to erase images. I'll give them my numbers, addresses, name cards, and take theirs – but I draw the line there.
And finally – anyone who takes another person's property by force or threatens them with physical force is a "thug" in my book, especially if one know full well that the person in question meant no harm.
I myself am irritated when I go to Korean events such as movie openings, conferences, or exhibits and the Korean photographer there always want to get the glory shot of "the foreigner" who came, which makes it more international and cool or whatever. I find it very irritating. But I also know that it's a private venue and it's my choice as to whether to go or not. So I generally just shift to a bad angle or actually put my hand in the air, very gently, over the exposed are of my face, making the shot awkward and unusable. Almost all photographers get the point and stop shooting me. I don't have to say a word.
And if they print it on their site, along with all the other things that happened there, even if I don't like the picture, or I look fat, or whatever – as long as they don't use me on promotional materials, which ain't cool legally or ethically, I just grin and bear it.
And if a Japanese tourist saw me sitting at an "American" gas station looking all "American" and s/he stopped to take my picture, which I found irritating, cliched, and perhaps even misrepresentative of what I was doing, I would just chill out and NOT go attack him and throw his camera into the highway.
Because that's unreasonable.
Posted by: The Metropolitician | May 01, 2007 at 09:42 PM
Questions concerning the legality of Mr. Hurt's photography, quite frankly, seem to be beside the point. Whether the arguments of "Beechtree" or "Fantasy" hold any water I can't really say. The fact is, even if what they said was true, I'm sure an individual such as Mr. Hurt would conjure up all sorts of inane and petty rationalization, replete with self-importance, self-righteousness, self-consciousness, as well as a dolup of artistic pretension to justify what he's doing. After all, it's the forte of individuals possessed of such uniquely rapacious egos.
Rather, I think the more wise strategem would be to enlighten Mr. Hurt about the philisophical and moral aspects that photographing entails. Towards this endeavor he should look to Susan Sontag's famous "On Photography" monograph. Sontag asserts for instance that:
"To photograph is to appropriate the thing photographed. It means putting onself into a certain relation to the world that feels like knowledge--and therefore like power. A now notorious fall into alienation, habituating people to abstract the world into printed words, is suppossed to have engendered to surplus of Faustian energy and psychic damage to build modern, inorganic societies. But print seems like a less treacherous form of leaching out to the world..."
"Images which idealize...are no less aggressive than work which makes a virtue of plainness...There is aggression implicit in every use of the camera. This is as evident in the 1840's and 1850's...during which technology made possible an ever increasing spread of that mentality which looks at the world as a set of potential photographs...From its start, photography implied the capture of the largest possible number of subjects. Painting never had so imperial a scope."
I suggest that Mr. Hurt take both his hands out the Cheeto's bag and get his greasy digits around this thought provoking book.
Posted by: Oh You Know Who It Is | May 01, 2007 at 11:08 PM
Roland Barthes final book, Camera Lucida, deals with the issue of the photographer as a bestower of Death. He argues that the photograph ultimately confers Death upon its subject, which is why we have to view the appropriation of someone's image as an ethical issue. A photograph, Barthe argues, is "invisible. It is not it that we see." Rather it offers up the testament that "this has been." The subject immediately exists in the past: "it has been absolutely, irrefutably present, and yet already deferred."
Thus Michael, in assuming his right to appropriate another's image, is engaging in ontological homicide in his impassioned extracting of death from his unsuspecting subjects. It becomes a sublime and silent torture, a sadistic aggrandizing of the world of death. To cloak this sinister practise, he covers the tracks, hides the murder behind a distracting language. As Barthes says, ""Society, it seems, mistrusts pure meaning: It wants meaning, but at the same time it wants this meaning to be surrounded by a noise which will make it less acute."
Posted by: Beechtree | May 02, 2007 at 12:42 AM