ISO 3200 & f 1.2 Penetration of a sphere of Private Darkness

When people act privately in a fully public area, doers it matter whether or not they know they can be photographed in almost complete darkness?

Lovers?

Friends chatting under the shadow of a tree at sunset?

Homeless people sleeping on park benches? who, may have been forced by circumstances to do a private thing (sleeping) in a public area.

Do they have an expectation that I will arrive with a camera doing 3200 and a 1.2 lens and get them in near darkness?

Asher

Asher,

You forgot to mention rather powerful IR-enabled cameras.

This picture was taken few years ago at the famous Ocen Bld, South Beach, Miami, Florida, during the spring break

We were sitting in the patio of the "Pelican", rather nice restaurant, overlooking the boardwalk. For some reason I had my IR-modded 828 with me (oops, I always have a camera with me. People were passing by, stopping by to check the menu, etc.

I'd say - rather public place Even way after sunset (this was about 9-10 pm)

Maybe - maybe not

So then my question would be, as photographers, do we take a photograph just because we are allowed to and have the right to or is there a line we should not cross out of respect for a subject?

When we were in San Francisco, there was a homeless man at Aquatic Park. He was very interesting; He found a somewhat secluded area to shave and brush his teeth. He showered in the showers meant for the swimmers to rinse their sand off - with soap. We decided to give him some respect and allow him the dignity to groom himself in "private" since we were visiting his home. I would have loved the photos. He had a great look to him. He was smiling and singing as he did what we all take for granted in our homes. I think it's a moral question and you have to answer it for each situation. There is no right or wrong.

Same day, we did photograph a man, who was clearly drugged sitting on the beach not moving. He had no knowledge of our presence. We could not ask permission.

Kathy Rappaport said:

So then my question would be, as photographers, do we take a photograph just because we are allowed to and have the right to or is there a line we should not cross out of respect for a subject?

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Rights also come with obligations, the obligation of not violatinging other people's rights (e.g. privacy). The right of freedom of speach/expression/... , does not imply the right to abuse the (for the lack of a better word) dignity of others.
Some can apply their own common sense of where to draw the (ethical/moral) line, but that doesn't mean it is the same line as the subject would draw.

We have some interesting copyright/portrait-right jurisprudence in my country. It involved someone taking pictures on the beach for vacation postcards. In those pictures were also some recognizable girls in very decent bathingsuits. As it turned out (in court), those girls belonged to a very strict religious order and where confronted with their own 'portaits' in postcards on sale in their local bookshop. Due to them being harrassed by their own villagers over their indecent conduct, the court ordered the destruction of all postcards, and damages to be paid. Mind you, this all took place in the 1950's if I'm not mistaken, and bathing suits didn't reveal much more than the arms and feet, back then.

But even today, there is a potential penalty of upto EUR 11250 for the unauthorized public display, or other means of publication, of portaits in general. Of course there are circumstances, that allow publication, but that is ultimately up to the court to decide. The general rule is, it is not allowed if the portrait violates a 'reasonable interest' of the person in question. Again, what is 'reasonable' is sometimes hard to predict.

Bart

A fine seems a little overboard. That makes taking a picture in public of a recognizable face a fringe activity. I can see personal negotiations that can't be resolved being taken to civil court and awarded damages, but a fine is too much IMHO.

Bart_van_der_Wolf said:

Rights also come with obligations, the obligation of not violatinging other people's rights (e.g. privacy). The right of freedom of speach/expression/... , does not imply the right to abuse the (for the lack of a better word) dignity of others.
Some can apply their own common sense of where to draw the (ethical/moral) line, but that doesn't mean it is the same line as the subject would draw.

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Exactly!

Trust and empathy are the glue of our whole society, without which society cannot function.

It all starts with feeling empathy, a bond to the suffering of compromised beings.

Empathy breeds mercy, charity and ethics.

Mercy provides relief of punishment and pain.

Ethics divides what we can do from what we should do.

Bart_van_der_Wolf said:

But even today, there is a potential penalty of upto EUR 11250 for the unauthorized public display, or other means of publication, of portaits in general. Of course there are circumstances, that allow publication, but that is ultimately up to the court to decide. The general rule is, it is not allowed if the portrait violates a 'reasonable interest' of the person in question. Again, what is 'reasonable' is sometimes hard to predict.

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Well, that means that vacation shots taken by people going through Europe and published by us on the web might be subject to lawsuit!

Is there any evidence that the courts would apply these rules today?

Anyway, I still want my pictures!

Asher

I don't do it

It really doesn't take that much to end up homeless. A long-running illness becomes a financial catastrophe - a spouse dies - depression - or maybe just a head injury - and any one of us could be sitting quietly on a bench, alone, in the dark, in a city somehwere.

So if it were me... and I noticed a prosperous looking guy with a nice new camera standing a little ways off, trying to be cool and discrete while snapping pictures of me for his friends to enjoy - how would I feel?


I don't take pictures of homeless people - I wouldn't feel right about it. Others may come to different conclusions.

Jim,

jim hughes said:

I don't take pictures of homeless people - I wouldn't feel right about it. Others may come to different conclusions.

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I feel the same about homeless people. They are pariahs of the world, with no means to sustain or defend themselves. It feels unfair.

Yes, they are often very "colorful" characters, but... Still does not feel right.

Asher Kelman said:

Well, that means that vacation shots taken by people going through Europe and published by us on the web might be subject to lawsuit!

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In theory, yes. In practice, not very likely.

'Reasonable interest' can e.g. be interpreted as respect for 'moral values' or 'personal living space' (also covered by art. 8, European Treaty for Human Rights), and one can think about hidden cameras spying on people when they don't expect it, or even when on reality TV.
It all depends a bit on the type and kind of 'intimacy' that is imaged. A case was ruled in her favor by a lady caught kissing her (at that time) boyfriend in a park.

Also, as a general High Court rule/principle, it is reasonable to resist unauthorized commercial exploitation of one's portrait for advertising. It might create an unwanted association with the product/service offered and the portrayed individual.

Another example is a portrait of a defendant in a court of law. Although the session is public, it may serve a reasonable interest to not have one's portrait in public media and associated with something one is not (yet) found to be guilty of. The common journalistic approach is to publish a drawing of the court session, with the defendant(s) seen from behind, and only the initials are used in the caption and text.

Another reasonable interest is to resist commercial exploitation of a portrait, without financial compensation. When the portrait is of monetary value for the user of it, it makes sense to share some of the benefit. It also helps to preserve the exclusivity rights of the portrayed person.

So, in general, a portrait made in good taste without potentially offending associations, and without invading a person's privacy, won't pose an issue.

As soon as portraits become a freak show (obese/disabled/drunk/homeless/etc. people, victims of accidents, etc.), one should become weary of consequences.

Important to note is that a portrait is defined as a depiction of (a) person(s) with a recognisable face (includes cartoons and such).

Is there any evidence that the courts would apply these rules today?

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Yes, but it usually constitutes of obvious cases of e.g. publication of secret images of nu__ (abbrev unclothed) recreation, or of people (incorrectly) being associated with immoral or criminal behavior, or commercial exploitation of portraits, or people being associated (by caption or context) with events/behavior they didn't participate in.

Bart

Nikolai,

An IR enabled camera, as you point out, the reach is even more.

Now would those girls you photographed appreciate their parents seeing them, perhaps they shouldn't have been there!

Now if your IR filter was different, then you could pierce their clothes but not show faces.

So one can always intrude.

Even in social settings with a regular camera, one can reach to the other end of the room with a 70-200 and intrude on a private moment.

In a social situation one doesn't normally do this or invitations would dry up!

Essentially, cameras empower the photographer to do at his or her whim what would be socially unacceptable in some indoor settings or through someone's window.

When they do in public (even what is normally private), one has the right to photograph them. At least that's the law in the USA.

Asher

Asher Kelman said:

Even in social settings with a regular camera, one can reach to the other end of the room with a 70-200 and intrude on a private moment.

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I have some relatives that regularly do this. At every family gathering for the last 20 years. They also put electrical tape over the lights on their video cameras so you don't know when it's recording. The whole family has learned to get used to it. I'm not sure if it's right - as I said I grew up with it.

When they do in public (even what is normally private), one has the right to photograph them. At least that's the law in the USA.

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To me, it comes down to whether people have made an effort to have privacy. Go ahead and take a picture of the couple on the bench watching the sunset, but not if they obviously went looking for a secluded spot. Even though they are technically in public, if people have gone looking for a secluded nook they have put out a sort of "do not disturb" sign and it would be rude to intrude. Legal (as it should be) but rude.

There are laws that already cover this kind of social issue.

Libel laws should cover about all that is needed in this regard. If, for some technical legal reason, it only applies to words, it should be updated to apply to photographs as well.

For libel laws, harm comes from words, which can be "created" by the perpetrator. With pictures, its a little different. They say pictures don't lie (can't be created), but sometimes a photo taken out of context can do harm...

I'm not really sure that people are protected in the USA from such intrusion into the private sphere they create in a public space, although it is worth exploring.

Using an IR camera to peer through clothes might be OK is it is the back and people are not recognizable, however shown.

Still, many jurisdictions have made it specifically illegal to do so in a public toilet/restroom/bathroom /changing room where there IS an expectation of privacy since these are designated areas for private and personal acts, the documentation of which would cause much distress in may cases.

Whether this would apply to a picture of someone straightening his tie in the mirror is unclear.

A picture in through a car window is intrusive but accepted antics of Paparazzi. So I can't imagine sweeping laws against that.

So there are more laws and customs to be discovered!

Asher