Power in Whose Palm? Day 3: Making Ethical Choices

Photo rights Salzburg Global Seminar
Jessica White
What ethical, editorial and intellectual property challenges are arising as a result of new technologies?  How are photo editors, photographers, web platform managers and society as a whole dealing with these complex issues?

Charles Swan, Head of London Media Law firm Swan Turton LLP advises on a wide range of issues including copyright, trademark and privacy issues.  Leading the session, Swan drove Fellows’ attention into the domain of photography and human rights domain with three key points: 
  1. Freedom of expression
  2. Privacy
  3. Property
Within this key debate, there is a balancing act of human rights with copyright/moral rights (right to property).  Photographers have control over the reproduction of their work, but it has only been recently that subjects have had the rights to prevent the publication of private images.  In bringing in privacy laws, the UK has trailed behind the USA and the rest of Europe (even France had such laws before the States.)

The right to own an image is a hot topic in contemporary times, especially given the speed with which images can be spread, often with little care to attribute the original owner, leading to heavy law suits. Many of these lawsuits aren’t about the big media suing individuals for sharing their images, but the reverse, with citizen journalists reclaiming power from the well-established agencies.

In 2010 when the earthquake struck in Haiti, freelance photographer Dan Morel, created a Twitter account to upload his photos of the disaster. He was surprised to see that the following day one of those photos had been used and circulated by European news and photo agency, Agence France-Presse (AFP), without his permission. The law case went on for two years. He argues he had given permission to Twitter, but not to everyone else to download that image and use it without his permission. The final decision was that AFP was liable for copyright infringement. So the photograph is free to circulate within the Twittersphere, but once it goes outside the Twitter pearly gates, dangers ensue. Arguably as a result, there has been a lot more caution towards photographers and citizen journalists operating within social networks. 

When a snapshot of a burning helicopter that crashed in London emerged on Twitter long before any professional journalist got to the scene, the citizen journalist then received a flurry of comments, ranging from representation in the negotiation of that same image with the media, to potential offers, as well as direct messages via Twitter from the journalists themselves that recognized the photo’s news value. 

Despite the number of people encouraging him to make a profit from his photo, the citizen photographer declined – he did not wish to profit from the fatal crash, choosing his ethics over legal action.Even start-ups have started to ride the wave of claiming ownership within the domain of citizen journalism. 

Scoopshot is a desktop and mobile app that is essentially a “photo service that brokers news photography between mobile Scoopshooters around the world and the international media through the Scoopshot Store,” (Scoopshot, 2012), further enabling amateur citizen photographers to publish their photos worldwide whilst earning money and retaining some rights.

Legal action or the threat thereof has for some, celebrities in particular, led to the “Streisand Effect.” 
In requesting photos to be removed, either on grounds of breech of privacy or even for simply being unflattering, as both Barbara Streisand and Beyonc√© respectively found out to their detriment, the images became much more popular than before the action was taken. These examples raised questions about freedom of expression, and how the notion differs in prominence vis-√†-vis privacy law from country to country.  But the global media is acting in a certain way that sometimes has a lot more influence than a single country.If billion-user Facebook decides to act in a certain way, undeniably there are large ramifications across the public sphere.

Sarah Parsons, an associate professor and director of the graduate program in Art History and Visual Culture at York University, brought to light complex issues surrounding photography and privacy in her presentation.

The issue of photography and privacy first arose with the emergence of the hand-held camera in the late 19th century.  Previously a much more laborious process, the hand-held camera took photography out of the studio and out into people’s daily lives.  Working more and more closely with subjects using a hand-held camera became a large part of getting interesting and sometimes, iconic photos, such as Dorothea Lange’s “Migrant Mother” taken in the 1930s American depression for the Farm Security Administration (FSA). 

The image depicts a young mother, Florence Owens Thompson, with a weather-beaten face and worn-out clothes.  Her two children are leaning onto her, their faces turned away from the camera. This image had a huge impact. It circulated on a mass scale and came to arguably represent the face of poverty in America’s Great Depression. Thompson had not benefited financially from this image and all the ownership had remained with the FSA, not with photographer Lange. Lange had assumed that she was co-operative because she would indirectly benefit from this image as well, by raising awareness of her plight. It was later revealed that Lange got some of the details of the story wrong and years after the image was taken, Thompson was not overjoyed to be the face of poverty. 

The meaning and understanding changed depending on the subject position. However, the impact showing workers during the depression was undeniably strong, perhaps because of the intimacy between subject and photographer, despite the problematic elements. 

Similar issues arise in the work of photographer Nan Goldin in the 1980s.  The relationship between the photographer and her subjects was always very intimate.  Golding started by exhibiting her photos in very local and small venues, with many of the subjects present at these viewings.  She later started submitting these photographs as slideshows at film-festivals. Eventually, at its height, her 45 minute slide show was shown at the Whitney Museum in New York. However, as the images moved to different, larger venues, the meanings of the images started to change.  

“My images are an open love letter,” Goldin has said, revealing how intimate her relationship was with her subjects, which she then in turn revealed to the public.
Goldin’s particularly intimate perspective often gave a view into a hidden world, and once in the public eye, the subjects, similar to Thompson, were not always comfortable with the reminder of their past lives.   Some of the subjects had fallen victim to HIV/AIDS, such Cookie Mueller, a personal friend and subject of many of Goldin’s photographs.  Others subjects in Goldin’s photographs which ventured into taboo spaces had often not reconciled with their past, thus when these images are circulated now, the once willing subjects are no longer at ease with them.  But the power of the images comes from Goldin’s relationship with her subjects. Nan Goldin has spoken candidly about her deeply private images: “The public are the only people that understand my work,” she said. 

So the distance between the private and the public collapses, which raises ethical questions for the subjects, the way in which they continue to be interpreted in a contemporary context, and the relationship between the photographer and subject itself. The meanings that are attributed to the photos are slippery categories because of the way in which they circulate. 
It perhaps began as an intimate social document of taboo spaces, yet does this sense shift when it is sold in an upmarket gallery in New York or re-sold at Christies?  The photographer Philip-Lorca diCorcia took a series of intimate headshot portraits of unsuspecting members of the public in Times Square, New York, causing contention.  A subject attempted to sue for invasion of privacy; however the judge ruled in agreement with the photographer, because it was seen as artistic practice, rather than commerce, and thus protected under the First Amendment of the US Constitution. There are ethical implications that arise as the photograph moves from spaces of artistic practice to commerce. 
Do Nan Golding’s photograph’s remain “an open love letter” when the naked subjects are sold at Christie’s for a high price?  Or does the meaning change and just become equivalent to porn? How important are these ethical considerations in photography?

Arguably, there is no right answer; sometimes the importance of the image or story can be seen to override the approval of the subject or their loved ones. The ethics change in case-by-case, but often these ethics are beyond strict legal issues.  

Some photographers admit to now practicing self-censorship when they take photographs, based on how people may respond. Is the digitization of photography putting limitations on our practice of photography? Only time will tell.

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