As happened with Bruce Gilden, as happens when we run into copyright issues, there were a few commenters the other day who objected to the ethics of John Slaytor's train pictures—he took high-speed pictures from the outside of people in passing trains who were unaware they were being photographed by him. Brilliant idea, I thought, but some others were uncomfortable with it.
Let me paraphrase myself to characterize some of the typical reactions in these cases (I was writing about copyright, but it applies to most ethical issues that affect photography):
There are a couple of main streams: 1. People don't understand the law. 2. People think the law should be different. 3. People think each case should be up to them to decide, based on what seems reasonable to them in the particular instance. 4. People don't even grasp the basic facts of the case under discussion, but are willing to pop the cork on some bottled diatribe they've got inside them that's been waiting for any old excuse to bubble over.
Um...sorry. Just the first three.
I was suggesting then that it doesn't matter how you feel about an issue, it matters what the law allows and doesn't allow.
And that's true. But here I'd like to suggest the opposite: that your feelings about the appropriateness of photography in differing situations is something you should pay attention to and respect. If you feel squeamish or uncomfortable about the implications of any kind of practice of photograhy, then you probably shouldn't do it. Your personal feelings don't necessarily prove that there's anything wrong with it, or that you get the right to dictate to others whose lawful behavior you don't agree with (although of course it's always an option to visit them with your disapproval); but it's probably a good clue as to how you ought to be working.
We all have different feelings about the exploitation of others and about correct and proper behavior. It's perfectly legal in the U.S. to take pictures of complete strangers without their consent and then exhibit and sell the photographs, as long as various restrictions aren't broken and certain uses aren't breached. Put simply, it's part of free speech. And it's true that we don't get to dictate to other photographers how they're allowed to work. But your own ethical feelings, I would argue, are an indivisible part of your own art or practice of photography—or should be. How we approach those feelings is part of how we approach the world and our own lives within it, and, in that sense, observing our own moral and ethical feelings are an important aspect of what we're doing, worthy of respecting. Maybe you want to be more fastidious than the law demands; maybe politeness is as important to you as lawfulness. So very well then.
Such considerations are not limited to the photography of people. Wildlife and plant life can potentially be included. There was a case a number of years ago concerning a landscape photographer who chopped down small trees that were blocking the view of his camera, and people had feelings about the ethics of that practice, too.
Your own ethics can go over and above the law, which is only a sort of practical baseline (practical, since violating it can incur penalties). For each of us, how far we'll go is a personal matter, and for each of us I think it's worth thinking about and formulating our own ethics.
Although not the topic of this discussion, it's worth mentioning that ethics are in part a public relations issue, too: the feelings of other people in public might possibly have an impact on you, and they (the public) also might be ignorant of the law. We've pointed out many times that not even all law enforcement officials are clear about what is and is not lawful when it comes to photography, and the general public is much worse. (Some photographers go so far as to carry Bert Krages' "The Photographer's Right" flyer to inform police on the spot of the law.) But there we're talking about expedients, not about formulating and following your own ethics for sound ethical reasons.
Going back to the specifics of what's allowed and not allowed according to the law, it's worth educating yourself, especially if you suspect you're on shaky ground and might need to defend your actions. From that earlier post again:
I'd like to suggest again a few books that we've recommended in the past—Photographer's Legal Guide by Carolyn E. Wright, and Bert Krages' Legal Handbook for Photographers: The Rights and Liabilities of Making Images (note the lack of international links: although copyright law is international to a considerable extent, Carolyn and Bert are both U.S. attorneys writing for a U.S. audience. If you live somewhere else, you should find yourself a good resource that fully reflects local expertise and applicable laws.)
I remember finding Bert's book a little more informative, but that might be because it contained more stuff that was new to me at the time. Carolyn, of course, is the author of the Photo Attorney blog, a leading blog for legal issues affecting photographers.
For a more in-depth treatment, try Content Rights for Creative Professionals, Second Edition: Copyrights & Trademarks in a Digital Age, Ctein's bible on the subject and his top recommendation.
Knowing the law is a good basis for proceeding, but it's worth cautioning that in some instances, law enforcement is going to make it up as they go along. There was a case locally where a man was taking pictures of swimmers at a public swimming pool from a car parked a considerable distance away. When questioned, he admitted to the police that he used the pictures for sexual gratification. As far as I could discern from the newspaper (and I don't think I've mentioned yet that I'm not a lawyer), what he was doing was not actually illegal, merely distasteful (he was on public property, the swimmers did not have an expectation of privacy, he was not trafficking in the pictures); but he was arrested and thrown in jail all the same, his camera confiscated, and so forth, to universal public approval. So, as always, beware—the law, too, like our personal feelings, can sometimes be extemporaneous.
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Original contents copyright 2012 by Michael C. Johnston and/or the bylined author. All Rights Reserved.
Featured [partial] Comment by Tim Auger: "One of the problems in this intolerant and litigious age is that people do not distinguish between the ethical and the legal. You do not have the automatic right to impose your personal ethical code on others with the force of law. You have to accept that others may have an ethical code different from yours. Many people find that difficult. That's why there are so many calls to ban things."
Featured Comment by Joe Kashi: "TOP readers should be alert to other possible legal problems with street and public place photography.
"Depending upon the situation and the law of any particular state, a person that's photographed may well have some private rights that non-lawyers tend to overlook in their stress upon 'First Amendment rights.' Private rights claims can cause potentially serious legal difficulties for photographers.
"We should remember that other persons have rights to their personal sense of dignity and privacy and that other people also cherish their 'rights.' Photographers are not the only people with 'rights.'
"The law varies from state to state and situation to situation, so one can't give any legal advice in posted general comments, only a general heads-up to be alert to some potential problem areas. While it is generally true that one has certain general rights to photograph in public places where there is no expectation of privacy, that's the beginning, not the end, of the story.
"Generally, First Amendment rights only pertain to government action, and less so to private civil actions against the photographer in the event that a private person decides to sue the photographer because they're unhappy about their depiction or a perceived invasion of a personal right.
"Without an unrestricted release from the subject, fair use of street and public place photographs usually extends only to non-commercial use such as in exhibitions and journalism. If there is any commercialization of the image, then the private compensation rights of the person(s) photographed likely arise, to the detriment and expense of the photographer.
"There are other potential problem areas, and these arise from tort law. An unhappy subject may be able to sue the photographer for unfair use, invasion of privacy, holding a person up to ridicule, or a perceived unfair or distorted depiction of them. First Amendment 'rights' usually don't protect a photographer against claims like that. Even if such claims are later dismissed by the court or by a jury, defending against them is expensive, time-consuming, and nerve-wracking.
"Again, private legal remedies vary greatly from state to state, and upon how a jury or judge reacts to a specific photo, so no one can give any legal advice in comments like these except that everyone should be alert of potential private rights. In a very real sense, the best guide is to recognize that others have personal rights to dignity and privacy that everyone, including photographers, are expected to respect."
Featured Comment by Maris Rusis: "Privacy? In public I don't expect it and don't want it. Anyone can take my picture. I think it a reasonable bargain in a liberal society that people can move about freely but the price for this freedom is the presumption of good behaviour. Should individuals be witnessed and recorded doing shameful or repugnant things then that is to their own account and not a slur against the witness. My experience with street photography suggests that what people really want is not privacy at all but rather assured anonymity."