Morality vs. YOUR Morality

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.

Mike

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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."

Comments

[Zeeman]

I always thought this was a simple matter. Photography, as an art form, is a medium through which to express your personal feelings, thoughts, and values. Why do something you don't like to produce images that no longer express your own values?

[GrumpyRat]

Speaking of that: I happen to live in France. Does anybody have any pointers about photography & the law in France ?

TIA,

[mike plews]

I've been sitting here comparing John Slaytors commuters to Todd Heislers airline passengers.

[ggl]

What happened to Gilden? I only found this.

[Peter]

I'm surprised that you would get critical comments from other photographers regarding Slaytor's photos from an ethical perspective -- critical comments from a photographic or artistic perspective I could understand better. I mean, so much of the history of photography and so many great and iconic photographs involve people who were unaware their picture was being taken and naturally were taken without their permission.

My ex-wife -- we're still great friends, so it's not about that -- asked me whether my street pics on my blog (shameless plug: http://phoneydianapics.tumblr.com/ ) are taken with the permission of people I shot. I told her, Of course not. She thought that was ethically questionable, but she's not a photographer and is unfamiliar with the rationale that when in public you have no right to privacy, at least as far as your image being captured in a photograph.

Anyway, thanks for the post.

[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.

Interestingly, there is a corresponding resistance to banning other things where there are no ethics directly involved, but clearly demonstrable damage, both social and physical - such as the possession of firearms.

Seems weird to me.

[Mike Johnston]

ggl,
When we posted a video of Bruce Gilden at work, some readers were offended by his methods and wondered if they were, or should be, illegal, and some judged them unethical.

Mike

[Ray]

Being one of those who had a problem with John Slaytor's train pictures, I thank you for detailing your views. I strongly agree that someone should not impose their version of morality on others. Everyone should have the freedom to act according to their own code so long as it does not adversely affect others. But in my view these photos are impinging on another's right to expect some degree of privacy even in public.

As for the legal aspects, I am less knowledgeable of the specifics than you, but I had been under the (apparently mistaken) impression that if someone wanted to use an image of my face for commercial purposes that they were required to obtain a release from me.

[George LeChat]

"I couldn't see the commuters, and they couldn't see me."

Isn't the more interesting (and questionable) aspect of Slaytor's work the extent to which the pictures are not the result of any conscious, aesthetic decisions on his part? He pointed his camera at a moving train, fired away, and sorted out the results later. Makes Google Street View, and the work derived from it, look positively thoughtful.

[Jerry Kircus]

Photographers and other artists express our feelings and emotions in our work. It is what we do. Ignoring them, including our moral feelings will only cripple our work. It is a great article and I thank you for it.

[PWL]

I'm a bit surprised that people had issues with John Slaytor's photos. I don't see this as any different from street photography. Are these people saying that street photography is wrong? If so, what do they have to say about people like Robert Frank?

As for myself: I try to avoid shooting children, though I do so on occasion. Children are natural hams and generally unselfconscious, which makes for great pictures.

But in a society which has been made neurotic and fearful by endless and endlessly hyped stories of crime, sex perversion, and pedophilia, shooting children as a middle aged male is simply asking for trouble, in my opinion.

[Mike Johnston]

" I had been under the (apparently mistaken) impression that if someone wanted to use an image of my face for commercial purposes that they were required to obtain a release from me."

Ray,
No, that's not mistaken...but the frequent misunderstanding there is that editorial (magazines, books, newspapers) and artistic usages are NOT considered commercial, even if the photographer is paid for or profits from the images either for publication or through their sale as art. But for commercial ADVERTISING, yes, the pictures do need to be released.

Mike

[Bron Janulis]

A point of clarity about Bruce Gilden. His method may be rude, but his use of flash, from very close, is for me a form of assault. I personally find the intense, albeit brief, light to be painful. Any lawyers want to answer that question? Is inflicting "pain" his "right"? As to any other ethics issues, i.e. violating peoples "space" is rude, not ethically wrong. But perfectly in keeping with crowded urban bustle, where rudeness is more common then courtesy.

[michael]

Interesting points, but I think the post seems to be conflating legality, morality and simple shyness. Feeling queasy may have something to do with intruding on others, less often it does entail actual rights or legal violation. However, many people use the excuse of intruding on other's as a reason to hide from their own uneasiness with approaching strangers. That's an entirely different fish.

[Mark]

John Slaytors pictures reminded me a lot more of the "Heads" series by Philip-Lorca diCorcia, especially with the private introspection of the subjects and for the same ethical/legal questions: http://www.nytimes.com/2006/03/19/arts/design/19phot.html?_r=1

I whole heartedly agree with your "Do what you feel is right" mantra. You're always going to be a happier individual if you are following your own ethical code and boundaries, both when you take the pictures (and perhaps more importantly) how you then use those images.

[Kenneth Tanaka]

Ah, the joys and dangers of quoting out of context!

[Mark Walker]

My principal thought is this : where would opinion lie if 'Slaytor' read 'Salgado' ?

Would that change anything ? Would it change a viewpoint if they were pictures of faces peering out the side of a truck in some current area of conflict/hellhole, where mute participants have their plight layed bare ? My 'moral compass' doesn't waver off either, both approaches are valid if they can reveal more of our strange species.
Personally, the series of pictures is an acceptable commentary, its a good theme, and I like the artistic quality.

Regards, Mark Walker.

[Gary Brown]

Dan Heller's Model Release Primer is a good resource on that topic. He also has a more detailed writeup on model releases; section 8.5, Art, Books, Exhibitions, Presentations, Etc. is perhaps of most immediate interest to the topic at hand.

[Bryce Lee]

Take away the cameras, the photographic gear and audio recording methods similar to same.
Take away the communication between others including all forms of electronic & written communication.

You are left with personal one on one contact; a fist to cuffs altercation, is all that would remain. Do we desire this?

Perhaps once everything else is removed by controlling actions including laws, then
perhaps we shall never know what we have missed.

By our very comments on this blog and elsewhere then we shall know truly what we have become.

What are you then?

[John Krumm]

I guess we only have to look at the supermarket tabloids to see how far our freedoms can go.
If I had been on that train thinking nobody could see me, leaning my head towards the window, briefly picking my nose, and then saw that "The Nosepicker" was posted on every blog on the internet, and was predicted to rise in value to "The Scream" someday, I might have something to say. But I suspect I would have been one of Slaytor's rejects.

[David Dyer-Bennet]

Google Street View is not "thoughtful"; they make one pass down a street and use it, and do not choose the time of the pass for any artistic purpose. Nor do they choose streets; their goal is to cover all streets.

Slaytor, in contrast, picked his method for artistic purposes, and was extremely selective about which of the thousands of images he captured were exhibited.

Comparing the two, and suggesting Google Street View could be more thoughtful, seems absurd to me.

Street photography as usually practiced exposes the photographer to the subjects more than Slaytor's project did; the subjects generally do see a street photographer who photographs them.

[Ryan]

"...editorial (magazines, books, newspapers) and artistic usages are NOT considered commercial"

Mike, Is there not a distinction between editorial and artistic usage?

From my reading of the Philip Lorca-Dicorcia case in New York state supreme court, his victory hinged on the fact that the image of the orthodox Jewish man was used to advertise an exhibit in which limited-edition prints were sold and that the overall context was recognized as art by the "art world" made by a photographer widely recognized as an established artist.

It seems to me that similar litigation in other states might be decided differently.

http://www.nycourts.gov/reporter/3dseries/2006/2006_50171.htm

[Mike]

A sensible and clear approach Mike. I agree that we should choose our own limits, within what is lawful, wisely. If we believe something should be(come) unlawful then it is better to seek this appropriately than to pretend and try to bully each other, I think.

There are interesting situations arise though. I am not comfortable with undertaking much that would be classified as 'street photography', but have just returned from my daughter's school where I was entirely comfortable taking candid pictures of children and adults in a non-public environment. A key difference is that it is a small school and we accept that parents will take pictures. In a bigger school it might be the case that the lack of relationship amongst parents (and staff) would lead to the sort of hysteria that makes the news far too often.

Always be comfortable with what you choose to do.

Mike

[Richard Tugwell]

It seemed to me that most of the people who had issues with John Sleator's photos were more concerned with the way the photos were selected to present a particular viewpoint. I have no problems with people taking my photo (I do it myself of course) but if my image was used to promote a view I didn't subscribe to, ascribing emotions that had absolutely nothing to do with what was in my mind at the time, then I might well have an issue with that. It's almost like using someone's image to endorse a product.

[Mike]

Actually a slightly better approach for those who don't care what effect they have on others provided they are within their 'rights' might be 'Do to others as you want them to do to you.'

Mike

[Ed Hawco]

I don't know if this will help or if it will just muddle the conversation, but I think it's important to think about WHY this question comes up more now than it did in the past. This has nothing to do with the legal side, but having awareness of how people on the street might feel (and how that is different now than in the past) might inform your ethical position.

People are far more wary of unauthorized use of their image now than in the past because nowadays there is so much more of it. Blogs, Facebook, Flickr, Instagram, and the Internet in general is awash with unauthorized pictures of us, many of them not very flattering. We also have the issue of ubiquitous security surveillance (which bothers some people more than others) as well as media portrayals of Hollywood papparazi acting in highly rude and unethical ways. The web is full of pictures of "nipple slips" and up-skirts and every other sort of embarrassing situation a person can get themselves into. The result is that the person in the street, rightly or wrongly (it doesn't matter), is far more likely to object to seeing a camera pointed their way than the person on the street of a generation ago.

So if a photographer has an issue of concience with regard to how the subject may feel, this should inform their ethical choice. It also means that such a photographer should feel free to ignore the issue if they are not setting out to "trap" their subject in embarassing poses. It doesn't mean the subject will be less wary of your camera, but it does mean you can be less concerned with their worry because you know your intentions are good (assuming they are).

[Ed Hawco]

On the legal side (which is sort of off-topic but maybe not) I have a comment with regard to the idea that "when you are in public you have no right to privacy." Given the degree to which privacy has become an issue in the Internet age, I wouldn't hold to that maxim as absolute or irrevocable.

Here in Quebec (admittedly outside of TOP's legal jurisdiction) the law is clear, based on a case from 1998 in which a woman sued a publication for printing an editorial photo of her without permission. The court decided that the prevailing concept should be the person's right to their image and how it is used.

From a "privacy advocacy" point of view this seems progressive. And given the extent to which corporate logos and trademarks are protected in the U.S., is it much of a stretch to think that a person's image will not one day recieve that same level of "protection?" (After all, if corporations can be "persons" why can't persons be "corporations?")

I should add that I am appalled by that legal decision in Quebec, especially since I live here and have two active street photography projects on the go (which I do at my own risk). I'd like to think that such a thing could not happen in the U.S. because of the deeply ingrained ideas about freedom of speech and expression, but it sometimes appears that the U.S. as a whole has more lawyers than common sense, and the U.S. has been home to an awful lot of downright insane legal rulings, so you never know.

You can read the actual Supreme Court decision here:
http://scc.lexum.org/en/1998/1998scr1-591/1998scr1-591.html

(It's a bit confusing because the decision was made by the Supreme Court of Canada, but it only applies in Quebec because Quebec uses a different civil code than the rest of Canada.)

[jkf]

Seems like what is making some people uncomfortable could be distilled to a matter of respect for your subject - there's a bit of a spectrum. Gilden looks to be pretty far at the "total lack of respect" end, which isn't necessarily a bad thing in and of itself, but for me resonates in the end product in an unappealing way.

Slaytor's technique here is certainly less in your face, but still invasive in some ways, especially given the "artist's statement" which is forcing the images into a certain context which is a bit of a stretch IMO.

Interestingly Gilden gets some similar facial expressions in his photos of people walking on the street. Maybe this is just what people look like when they're lost in their own thoughts while in a public space. The fact that the expression seems unusual to us could be due to a human aversion to looking too hard at each other while we are in this private frame of mind, despite being in a public area.

Gilden has apparently overcome this aversion somewhat :)

[peter]

Gilden and his flash gun. Boring. I don't understand why people still pay attention.

[Jon Erickson]

George LeChat wrote:
"Isn't the more interesting (and questionable) aspect of Slaytor's work the extent to which the pictures are not the result of any conscious, aesthetic decisions on his part? He pointed his camera at a moving train, fired away, and sorted out the results later. Makes Google Street View, and the work derived from it, look positively thoughtful."

Doesn’t pointing the camera, firing away, and sorting out the results later constitute a nutshell description of photography? John Slaytor's results demonstrate an uncommon level of conscious and aesthetic decision-making on his part.

And while none of the Google Street View projects seem as interesting as Mr. Slaytor’s, I’d argue that Michael Wolf’s various series based on GSV are indeed positively thoughtful.

[ctein]

Dear Tim,

It always seems like one's own age is both the best and worst of times, because we see our personal oxen gored, but history doesn't indicate anything exceptional. We're not particularly less tolerant, as a culture, today than, say, 100-150 years ago. And many of the "solutions" in Olden Days were far less agreeable than litigation.

For example, it seems like politics and religion today have hit a high waters of polarization. But, compared to what? For example, the President of Stanford University took a stance against the US entering WW1. In response, the university that had granted him his degree took it away from him and police had to be brought in when a lynch mob showed up at his residence. I'm not talking figuratively, I'm talking about ropes and murderous intent! Religious disputes were equally intolerant and frequently as violent. And there's nothing unique about the 1910's in that regard. All that seems to change is the hot buttons.

Dunno about other cultures worldwide, but Americans seem to always have been a pushy bunch.

~~~~~~~~

Dear Bron,

Of course he doesn't have a right to inflict pain, but that does not mean you have a right to be protected from it. There is no simple legal answer to your question. How much is your pain? How long-lasting? How forseeable is it; in other words, what percentage of people would suffer similar pain? Is such pain commonplace or considered a normal hazard of urban life (e.g., if it were the sun reflecting off the windshield of a passing car into your eyes, even if it triggered an epileptic seizure it'd be considered a normal risk of urban life)? Is the infliction of pain intentional? Is the act that inflicted the pain protected by law (e.g., if you're newsworthy, you can't legally prevent reporters and paparazzi from firing off flashes at you in public)? What legal precedents exist and what is their jurisdictional scope?

And so on.

The law *might* agree with you that it is a form of assault and an unlawful one. Or not. It would depend upon all the preceding questions and more.

pax / Ctein
==========================================
-- Ctein's Online Gallery http://ctein.com
-- Digital Restorations http://photo-repair.com
==========================================

[Steve Barnett]

"You took a photograph of me?", "Yes, and your ancestor did a painting of my ancestor, so what?" Given pretty well everybody in the world is related to the few people depicted in stone age cave paintings, we should either just sue everybody else in the world for unlawful depiction of our gene pool, or call it quits.

[Bron Janulis]

Dear Ctein,

Yes, the law might or might not agree, or just be an ass, also dependent on the lawyers and judges involved. But Gilden's actions are not happenstance, sun flash, but are intended, and seem intended to discomfit as well.

As to the symbiotic nature of celebrity photography, there is intent on both sides, though, I, not being a celebrity have no expectation of a flash firing at me from a few feet away. And maybe, the closeness is the issue; if you've accidentally tripped a flash in your hand while looking at it, it is a jolt. (I often hand hold a flash when doing photos of a work process)

Interesting subject; though.

As to John Slaytor, I very much like the work, though I draw a different conclusion from 4000 unsmiling people; people don't smile when looking out train windows, and some may be desperate, or not, but the odds would seem to favor a least a few happy souls looking forward to their day.

[ggl]

Mike, ah, the Gilden video I know. I thought someone sued him and it looks like someone actually did, but it's a bit complicated and it involves third parties.

I've seen Charalampos Kydonakis using on camera flash creatively on the street. The method is somehow similar to Gilden's but I like the results better, regardless of ethics.

[ctein]

Dear Ryan,

No. There is precedent. Including a major case in the NY Supreme Court some years back on just that point, against the Sunday NY Times (I think).

Fundamentally, "commercial use" means "use to promote commerce," not "it was paid for." Editorial, artistic, critical, doesn't matter.

It's always possible some local jurisdiction might rule differently, but so far the court cases have been consistent.

pax / Ctein

[Len Salem]

I've made this point before in an earlier post, but reading all these recent comments I think I should have a go at expressing it more clearly.
Imagine I am sitting in my living room, in the evening with the lights on, looking out of my window with the curtains open. Someone walks past me on the pavement and looks in at me. I may not like it but it is something which experience tells me may happen.
If I wanted to preserve my privacy I could draw the curtains. No passer by could then see me.

If I am looking out of a window of a high speed train my experience tells me that my expression is private. As private in fact as if I had drawn a curtain across the window. I believe I am travelling too fast for anyone to observe my expression. I believe I am invisible from outside the train.

But if someone with cutting edge technology manages to overcome this barrier of high speed, and clearly reproduces my expression in a photograph, then I would feel as invaded as if someone had invented a camera that sees through my drawn curtains at home at nightime.

This is why I am troubled by the ethics of John Slaytor's technique, even though the results are fascinating.

[Mandeno Moments]

People who wish to restrict or outlaw photography in public places wish to violate the property rights of other people by controlling what other people do with their property (i.e. their cameras). Also, people who wish to restrict or outlaw photography in public places want to control other people's actions, which is a violation of personal rights (here I am using "personal and property rights" in the Misesian sense).

I believe that it is consistent with natural justice and common sense to say that people have no reasonable right of privacy in a public place. As a street photographer I regard voluntary actions in a public place as fair game (including those of drunk people; they chose to get drunk), but am more cautious with involuntary actions such as a person lying injured in the street. In both cases I endeavour to be considerate of the potential subject.

I do not wish to control Gilden's actions, but I believe that his methods are inconsiderate of other people and do photography in general a disservice. A street photographer is in a sense an ambassador for all photographers, and this role becomes more important as persecution of photographers increases over time.

[John Slaytor]

I am interested in the moral anger of commentators who regard my work as invading their privacy.

One motive for my 'Lost In Transit' series is my abhorrence of contrived celebrity photography which, in my view, is undemocratic in that it promotes a walled-off world of privelege and has the side-affect of making many women (and increasingly men as well) dislike themselves.

My images are of ordinary unknown people who are beautiful and if we, as photographers, spent more time promoting the beauty of the everyday, I would like to think those who live their lives within it would become more content with their lot in life.

Another way of looking at the morality of my photography is consider what responsibilities citizens have. If photos of us are used to promote the everyday then this can only be good. i.e. shouldn't our societal responsibilities on occasion displace our individual rights?

As a direct consequence of my Lost In Transit series, I have been commissioned by a local council within Sydney to photograph an economically depressed area over a month. I could easily exploit the situation with a 'ghetto porn' theme. However, I am more interested in promoting the positive civic values which will exist there and ultimately, I want the images to reinforce the self-worth of the local community. This is a bottom-up approach to democracy. The other way, documenting misery and handing it over to the authorities, no longer works.

So has the moral anger targeted the canary in the coal mine when it be focussed on more undemocratic forces such as lobby groups?

To reassure all photographers in NSW (where I work and live) that my work is legal, Andrew Nemeth's website is a brilliant source.

http://4020.net/words/photorights.php

[David H.]

Simple assault is generally defined as an action which would cause a reasonable person to fear immediate violence on him/herself. Assault laws are state/local laws in the US and are more detailed and vary from jurisdiction to jurisdiction. (I know of one town in which spitting on someone was simple assault.) So the old statement that "Your right to swing your fist ends one inch from my nose," is not true. It ends about the second you commit to swing.

Were I doing the type of photography that Gilden does, I'd be intimately familiar with local laws---and I'm sure he is.

[Dan]

Just because something is legal doesn't make it right....and vice versa.

If I go through your neighborhood snapping shots through your windows and cranking up the iso to see you pulling your taffy in the living room it would certainly be considered an invasion...right?

As Len mentioned earlier there are places where people should have a reasonable expectation of privacy. Technology is robbing us of those places.

[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.

[the other James]

Len, I'm baffled as to how you can feel someone's privacy is violated on a public train merely because they _thought_ no one could take a picture through the clear, unshuttered window they were gazing vacantly out of.

How do you feel about the picture below?

http://www.dementlieu.com/users/obik/fpics/_MG_0096bwp.jpg

The police officers and motorist had no idea I was photographing them, even though they were on a public street. They certainly had no reason to believe that a picture could be taken from that particular angle--after all, there was nothing but opaque plastic sheeting in that direction.

Did I violate their privacy simply by being more imaginative than them?

[Michael W]

Oh well, glad we got that sorted out.

[Mike Johnston]

"Just because something is legal doesn't make it right....and vice versa. If I go through your neighborhood snapping shots through your windows and cranking up the iso to see you pulling your taffy in the living room it would certainly be considered an invasion...right?"

Right. That *is* against the law, as far as I know. But a subway car isn't your living room.

Mike

[Libby]

John Slaytor, thank you for stopping by and sharing your comments. The series is one of the best I have seen in a long while.

[the other James]

Dan, Mike, the circumstances of the hypothetical situation your brought up need to be fleshed out more. If I can see you jerkin' off from public property or somewhere I have every right to be, and take my photo from there, I think you would have a very hard legal AND moral case to make. If I'm in your bushes peering through the slats in your blinds, that's something else entirely.

I do a lot of night time shooting, and it astonishes me how many people treat windows like they're opaque walls. I've seen people watching pornography, masturbating, peeing in the kitchen sink, having sex, and wandering around naked, simply because it doesn't occur to them that other people can see in through windows just as easily as they can see out of them. And no, I'm not a peeping tom--I've seen every single one of those things from the street, without seeking them out. And when I have seen them, I have not photographed them.

If you don't want people to see you masturbating in your living room, close your blinds.

[Robert Roaldi]

There's an hilarious web site called "people of Walmart" or something like that, where photos are posted that ridicule the appearance of clients of the stores. The pics seem to be taken either in the store or parking lot and they are not flattering.

Since they are taken on private property and can be seen to insult people, I wonder how that series fits into this discussion.

[Peter Croft]

No, no, no! "Photographers and other artists express our feelings and emotions in our work. It is what we do. Ignoring them, including our moral feelings will only cripple our work." What about the feelings of your subjects? Don't they matter?

"Privacy? In public I don't expect it and don't want it. Anyone can take my picture." Well, that's fine for you, but what about this scenario? Your daughter has just died and you're utterly distraught. You're being led out of your house to identify the body and as soon as you step outside your front gate, someone snaps you in all your misery and grief and publishes it. How would you feel about that?

All I said was, I would not publish photos of people who are in quiet pensive moods and have no idea they are exposed to someone's lens. If you're walking down a street, you ARE aware that you are out in public gaze. On a speeding train, you're not. I WOULDN'T PUBLISH photos like these. I realise that he can, but just because you can do something doesn't mean you're bound to. It seems there are no boundaries any more. Not happy.

[Jim]

With the billions of photos folks upload of themselves, their families, their friends, their drinking buddies, etc. to Facebook, Flickr and other photo sharing sites, I find it odd that anyone in the U.S. could assert they are concerned that their privacy is being violated when someone snaps a photo of them in public.

[Ira Crummey]

I do find that the techniques employed by Bruce Gilden, Charlie Kirk and Eric Kim are somewhat intrusive and really stretch the definition of street photography as I understand it. Personally I see street photography as an honest portrayal of life, unaltered by the photographer's presence, the response of having a camera and flash thrust into your face seems to obviate this natural flow of life.

I am more concerned with the semantics here than the ethics. I think this form of "street photography" is like "reality TV", very far from truth and reality.

[Roger Bradbury]

Several people have said that if your face is turned to the window as you sit on the train, your face and the expression on it cannot be seen.

In fact, your reflection will become visible if it is dark enough outside the train, something that will happen frequently if you are on the Underground. Usually your face will also be visible to the person sitting opposite you.

[ctein]

Dear folks,

Something just occurred to me. An awful lot of this discussion revolves around putting ourselves in the commuters' shoes… Except we're doing it wrong! We're putting ourselves, as knowledgeable photographers, in the commuters' shoes. They aren't knowledgeable photographers, and that makes their expectations very different, I believe.

Let's think about the physical situation. It's not dark at all, despite the look of the photographs. John is using a shutter speed one quarter of his ISO. To put that in a more comfortable perspective, that's like photographing at 1/25 second at ISO 100. Even with an f/2 lens, that's pretty bright light. No one on those trains thinks they are cloaked by darkness.

John needs the extremely high shutter speeds because at 40 km/h, the subjects move more than a centimeter in 1/1000 of a second. As photographers, we would consider that a difficult situation. But any of you who ride trains and have been on a train or a station platform when a train pulls through at a modest 25 mph (that's what's 40 km/h is) know that it's pretty easy to see the faces of people looking out of the windows at that speed and, conversely, if you're on the train, it's pretty clear that people outside can see you. Our eyes are incredibly good at extracting “blink of an eye” information, which we take for granted. We, as photographers, know that our cameras don't do that anywhere as well, but the lay public doesn't!

I think if you told someone that a photographer had photographed passengers on a train passing at 40 km/h, their reaction would be “well that's interesting, but why?” They wouldn't understand that it was any kind of special technical achievement. They could very well be concerned about what use the photographs were to be put to, but the act itself would not strike them as extraordinary.

As a technically knowledgeable and proficient audience, our reaction to John's efforts are entirely different. We see this as a remarkable achievement, and that raises questions about whether one might have a reasonable expectation of it happening. The lay public wouldn't see it as technically exceptional at all.

pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
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-- Ctein's Online Gallery http://ctein.com 
-- Digital Restorations http://photo-repair.com 
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[ctein]

Dear Mike,

Regarding the photography through the living room window, assuming we're not talking about trespassing, whether it's legal or not really depends on how extraordinary the efforts are. Generally, the law says that if it can be reasonably observed by a human being from the public venue, it is not a private matter. If it can't, it is. So, for example, if someone walking down the street could readily see the shenanigans going on in the living room, even if photographing it required an unusually high ISO from the camera, that would not be considered legally an invasion of privacy. How an individual might feel about it would be another matter. I think it would depend. For example, in the cases of these photographs,

http://ctein.com/Blue_Xmas.jpg
http://ctein.com/Xmas_Plate_01.jpg

there could hardly be an expectation that the interiors of the homes would not be visible. But then, nobody's wanking off.

Things that a human can't see are another matter, and a complicated one. The distinction between US law and expectations matters. Most people (at least the ones who don't read too many spy novels) don't realize that with image amplifiers and vibration detectors, you can not only photograph people in near pitch darkness inside a room but listen in on their conversations. We, as individuals, would mostly consider that invasive. But the law mostly says that windows are fair game. But, for a long time, image amplifiers were illegal in most jurisdictions. Probably still are in some.

At the superhuman extremes, though, law and expectations are in concert; the Supreme Court ruled that thermal imaging (and, presumably, terahertz radiation imaging and similar technologies) through the solid walls of a home was an invasion of people's privacy and required a warrant.

Putting things in perspective, I think it's worth remembering that you can always find somebody somewhere who will object to almost any practice. If you really, truly don't want to ever step on someone's sensibilities, you always have to ask first. Which I am not recommending; it's not in my nature. Just noting it's the only solution that accounts for the extremes.

Conversely, when people's expectations are massively at odds with the law, even when those expectations are widely held, I don't think most of us give too much credence to the masses. For instance a lot of people think you can't photograph them in/from public venues, or if you do that you need a model release, or that you have to pay them. (I'm talking about the US, here.) Probably even more people think you can't photograph children under any circumstances. Some of us may choose to honor these quaint notions out of a sense of prudence and self-preservation, but I don't think many of the readers here think we should have much respect for their nonsensical sensibilities.

pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
======================================
-- Ctein's Online Gallery http://ctein.com 
-- Digital Restorations http://photo-repair.com 
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[Dan]

"I do a lot of night time shooting, and it astonishes me how many people treat windows like they're opaque walls. I've seen people watching pornography, masturbating, peeing in the kitchen sink, having sex, and wandering around naked, simply because it doesn't occur to them that other people can see in through windows just as easily as they can see out of them. And no, I'm not a peeping tom--I've seen every single one of those things from the street, without seeking them out. And when I have seen"

Can I go on a photo walk with you? I'll be quiet, I promise!

[the other James]

Dan, it ain't pretty. Best to get your jollies from the internet (with the blinds closed, of course).

[Devin Jones]

I liked your comment, Tim.

Regarding Gilden's style and the myriad of people that pick up the flash and hit the streets these days... I think the litigiousness goes both ways. I also think the growing trend of in-your-face street photography is an invitation for people with power to advocate for a changing of photography laws and a diminishing of photographic freedom. Sure, the laws aren't there. Keep it up and they may be someday.

Even if not, it's wrong to force your idea of what is acceptable on other people. Shooting strangers up close with flash is rude and shocking. It interrupts them, and is much like leering at someone sitting across from you on the bus. Some Kantian thing applies here. Categorical imperative? "Act only according to that maxim whereby you can at the same time will that it should become a universal law without contradiction." Thank you cherry-picking and wikipedia. I'd hate to live in a world where self-styled street photographers constantly interrupted me.

Gotta say I've taken a few of these kind of shots. It all comes down to how you present the people you exploit both in the frame and after development/publishing. Though even that doesn't change the fact that most people don't like to be snap-flashed in the face.

What am I trying to say? Everything in moderation. Question yourself and your motives. If you're cool with it, great. If others aren't, expect backlash... backlash that is perfectly justified and hard to refute.

-Devin

[Bruce]

My only hesitation surrounding John's work was to do with the method by which he captures his subjects. They can't see him as they rush past but, as John admits, he can't see them either. It begs the question how much of his work is down to skill and how much to luck. Ten out of ten for the concept but from what I can tell, and I'd really like to be proved wrong, John cranks up the ISO and the shutter speed and just blasts away. Presumably, he then looks through the thousands of images and makes a selection. Would we think so highly of this if John was using a high speed video camera to film the train as it sped by and then selected stills from tens of thousands of images? Of course, it could be that this work is viewed in the same context as "art" from the likes of Damien Hirst or Tracy Emin where the concept is everything.

[ctein]

Dear Bruce,

I think you've got a false dichotomy there: skill vs. luck. Any time you photograph something that you can't see with your eye but the camera can (viz. high-speed and action photography, night photography, and so on), you are depending upon luck. That does not preclude the involvement of skill and talent. It takes skill to take advantage of the situation and talent to intuit that there is something worth photographing there to begin with.

As examples:

http://theonlinephotographer.typepad.com/the_online_photographer/2010/10/stochastic-photography.html

Along with a large percentage of the nighttime photography on my website.

I don't buy the implication that work can only be taken seriously if it only involves deterministic processes (you'd have to throw out an extraordinary amount of great ceramic and pottery work, for a start). One can choose to deliberately invoke the stochastic and happenstance, with your skill and talent informing you that it's a course worth pursuing and that you have the chops to pursue it.

pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
======================================
-- Ctein's Online Gallery http://ctein.com 
-- Digital Restorations http://photo-repair.com 
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[David Dyer-Bennet]

No, it does not "beg the question". That doesn't mean "raise the question"; it means "assumes the desired conclusion as a premise of the argument".

[c.d.embrey]

Don't get bit by the Right of Publicity http://rightofpublicity.com/brief-history-of-rop

"The Supreme Court of the United States has reviewed the Right of Publicity only once, in the seminal case of Zacchini v. Scripps-Howard Broadcasting. Zacchini involved a famous “human cannonball” who objected to his entire 15-second performance being televised on the local news. The value of his act depended on the public’s desire to witness the event, so televising the event detracted from the demand of people willing to pay to see his act.

The Court recognized Zacchini’s Right of Publicity and rejected the Broadcasting Company’s First and Fourteenth Amendment defenses ..."

[Bruce Robbins]

David Dyer Bennet,

Thanks for pointing out my error in the use of "begging the question". There's always something else to learn. I note that it has been suggested we should stop using the phrase altogether.

According to Wikipedia, "Academic linguist Mark Liberman recommends avoiding the phrase entirely, noting that because of shifts in usage in both Latin and English over the centuries, the relationship of the literal expression to its intended meaning is unintelligible and therefore it is now "such a confusing way to say it that only a few pedants understand the phrase."

[Mike Johnston]

"I note that it has been suggested we should stop using the phrase altogether. According to Wikipedia, 'Academic linguist Mark Liberman recommends avoiding the phrase entirely, noting that because of shifts in usage in both Latin and English over the centuries, the relationship of the literal expression to its intended meaning is unintelligible and therefore it is now "such a confusing way to say it that only a few pedants understand the phrase.'"

Bruce,
I agree. I use it occasionally and I usually don't even know what the hell I mean.

It should be called "begging the proposition" (or, better, "the proposition goes begging"), meaning you beg for the proposition to be accepted without proof. In English usage the meanings of "begging the question" you might encounter cover a broad enough range that it doesn't really mean anything in particular. Most often, people seem to use it to mean, "Won't you please ask this question? Because I have this pretty answer all ready for you." Which is of course not its Aristotelian meaning at all.

In editing it's one of those problem terms--viz., how far does one bend in permitting it as a colloquialism?

Mike