02. Street Ethics

The day my world turned upside-down

According to Wikipedia, street photography is defined thus:

“Street photography is a type of documentary photography that features subjects in candid situations within public places such as streets, parks, beaches, malls, political conventions, and other settings.”

Last Friday, when I went out on my weekly shooting excursion, something happened to me that turned my photographic world upside-down and caused me to question the very ethics of what I do.

I took the bus into the city centre but before I started looking for subjects to photograph, I went into a department story to buy something for my mother. On my way out, as I stood on the escalator, I noticed a splash of light with two young women standing in it, casting long shadows on the pedestrian plaza outside the building. I didn’t have my camera in my hand at the time so I took the escalator back up to the Department Store, took my camera out and fired off four shots.

As it happened, the image didn’t look as good through the viewfinder as it had with the naked eye so I went back down to street level again to rethink the shot. Normally, on a shooting excursion, I start slowly and the first few attempts are not so good so I wasn’t unduly disappointed. In fact, I felt that this was a promising start and there would be better things to come so I was full of optimism for the day.

I was standing just one metre inside the building alignment, at the entrance to the shopping complex that housed the department store, taking shots of people on the street when I heard a voice at my side asking, “What are you doing.” At first, I thought it might be another photographer but when I turned to look at the man who had spoken, I realised very quickly that he was a plain clothes security guard. He told me that photography in the Centre or of the Centre was not allowed. This was the policy of the Centre. In point of fact, I was doing neither of these things. To be exact, I was taking photographs from the Centre; photographs of activity on a public street; but experience has taught me not to argue the subtleties of prepositions with burly security guards so I simply said, “Okay. That’s fine by me,” and prepared to make the single stride which would have taken me out of the Centre’s jurisdiction. Then the guard asked me, “What are you taking pictures of anyway?” Since I had nothing to hide, I showed him the most recent capture in the back of my camera. In fact, this image:

I explained to him that I was taking a picture of the girls’ legs with the shadows trailing off to the right. He looked at it, shrugged, said, “That’s all right then,” and walked away. Whether he was sympathetic to the artistic intent, or satisfied that I was doing nothing illegal or immoral, or pitied me, thinking that I must be some kind of nutcase to take such a picture, or was prepared to be lenient with a fellow Scot, I don’t know. He went back into the Centre and I walked off in search of new subjects. But for the rest of the day I couldn’t stop thinking about the incident and as a result, was unable to settle into a productive photo-taking mood. I came home with no captures of any real merit.

The incident itself had taken just a minute or two to unfold and while it had begun in a confrontational tone, it ended without acrimony. What it did do, however, was compel me to reflect on what I do and its ethical implications.

The Centre (and it always makes me think of Kafka when I use that term) has every right to promulgate and enforce whatever policies it chooses within its own precincts, provided that those policies are, themselves, within the constraints imposed by Common and Criminal Law and a Constitution, if the country happens to have one. Whether these policies are logical and defensible is irrelevant to the right to exercise them; and there was no way that the security guard was going to debate that particular issue with me. He had his rules to follow and the predictable response to me would have been, if you don’t like the policies, don’t enter the premises. Simple.

There may have been a legal requirement for management to display signs warning the public that photography is prohibited and I don’t recall seeing any such signs but I was only being warned off on this occasion so I wasn’t about to make a fuss about that because there were more important issues to be considered. Generally speaking, commercial concerns do not create policies without good reason; and often those reasons relate to the protection of people, property or commercial interests. And it is the protection of people reason that has been haunting me since the incident took place. Are people entitled to go about their lawful business without the likes of me photographing them?

Of course, there is something of a double standard here for the Centre itself also uses photography in the form of surveillance (CCTV cameras) to protect its interests and no one asked for permission to film me when I entered the complex. I imagine they would argue that it is their right to do so, because they control the premises. In addition, they would probably argue that the CCTV images taken are for private use only, not for publication. And they might also argue that if members of the public do not want to have their images captured by CCTV, they should stay out of the Centre; although I imagine that they would argue this reluctantly because it not a response they would wish to encourage. But as soon as you step onto the street outside the Centre, you are being captured by other CCTV cameras anyway; placed there by the police; and this photography is also being carried out without our permission. So no one entering the city is free from this intrusion on his or her privacy.

Certainly, there is a presumption that CCTV footage is being used solely for private (security) purposes; but how do we know that, if we don’t even know that we are being photographed? How do we know that CCTV footage of us is not being sent to YouTube, albeit unofficially? And just as the images taken by street photographers can be manipulated and misinterpreted, so can the images captured on CCTV. So why is one form of unauthorised filming deemed to be acceptable and another not?

In street photography, the act of taking the photograph can be intrusive and this can make the subject of the photograph feel uncomfortable. Personally, I prefer to capture images where the subject is totally unaware that they are being photographed. That way, the image is perfectly candid and natural. But a second concern relates to the use of the image once it has been captured. There are laws protecting the individual against commercial use of their image in a photograph without permission; although there is a blurring of the line between commercial and non-commercial use.  Nussenzweig v. diCorcia is a legal precedent cited in Wikipedia where the photographer, diCorcia, was judged to be within the law when he sold limited copies of an image he took of Nussenzweig on a New York street. In my own case, I upload selected images to Flickr, which makes them potentially available to anyone with Internet access (although I often despair at the relatively few people who actually view my images, which probably says more about the quality of my photography than anything else). That, of course, raises a third concern. How is the image used once I have relinquished control over it by uploading it to a public website?

In Flickr, you can attach all sorts of copyright statements to your image but this appears to have cosmetic value only because anyone can download and re-purpose the images. And with the sophistication of today’s image manipulation software, the image can be transformed into something that the photographer didn’t intend and might never have imagined. Could I be held accountable for that? I don’t believe so; any more than I could be held accountable for a crime committed using a vehicle that had been stolen from me.

I am quite selective about the images I upload to Flickr; although I concede that the selection is made based on my own criteria and not those of the person or persons in the photograph itself. In brief, I ask myself if I would be happy to see this image on Flickr if it were me in the photograph instead of the actual subject? If the answer is yes, I’ll upload. However, I cannot control how other people may interpret the image; and there have been a few cases where I’ve received comments from Flickr members that betray an interpretation that would never have occurred to me (I having had the benefit of being there at the time the image was captured and knowing more about the prevailing circumstances than the person who views the image in isolation and out of context).  How can I avoid this misinterpretation? I can avoid it, of course, by simply not uploading; or not even taking the photograph in the first place. But if I cannot predict when a misinterpretation will occur, how can I confidently upload or even take any image?  On the other hand, if I attend a performance of a play by Shakespeare and interpret it in a way that Shakespeare hadn’t intended, should the play be withdrawn from publication? I don’t think so. And since Shakespeare is long dead, who can tell what his intentions were anyway?

There are certain photographic subjects upon which I do impose a degree of self-regulation. These restrictions have changed over time as social mores and attitudes change and also as my personal world-view changes. In my younger years, I had no compunction about taking shots of homeless people; but now I feel that unless I have something to offer them in return, it is wrong to exploit them. Recently, I published a mini-series on Flickr called Disengagement that ended with a shot of a homeless person. While I was working on the street that day I took several other photographs which I subsequently uploaded to Flickr and I had no intention of photographing the young woman sleeping on the street until I noticed that the light had swung around and was shining on her like a spotlight. It was as though I had been given a sign. I took several variations of the shot, including the one I uploaded to Flickr; wrote the mini-series and published it on my blog. If just one person saw it and was moved to be more sympathetic and understanding towards the homeless then I would have satisfied my objective. In fact, from the response I received, many people were moved by the image. Did it make any material difference to the young woman in question? Probably not. But photography has the power to make people confront things they’d rather ignore; and in so doing, to change social attitudes. I am not claiming that my own photography has done this in any great measure but in the same way that the security guard wasn’t interested in differentiating between me and other camera users; I don’t believe that I should be dismissed because my success in reforming public opinion has been modest.

Taking photographs of children is another sensitive issue, especially here in Australia. In May 2008, photographs by Bill Henson, a contemporary art photographer in Australia, were seized from a private gallery by police following complaints that they were “pornographic”. The image that triggered the furore was a studio portrait of a nude 13-year old girl (taken with the approval of the girl and her parents). A war of words ensued in the press, on radio, on television and around water coolers across the country, apparently pitting the artistic community against those who claimed to have the best interests of children at heart; although this polarisation was a crude over-simplification of the key issues fabricated by tabloid journalists to fuel the polemic and increase their circulation. Within the next few days, the matter reached a hysterical climax with even the Prime Minister, Mr Kevin Rudd, weighing into the debate, claiming that the images were “absolutely revolting” and that they had “no artistic merit”, although it is not clear on what basis he was qualified to judge the latter issue. And in the end, the New South Wales Department of Public Prosecutions (DPP) determined that no charges would be laid against the gallery or Mr Henson because the images were found to be “mild and justified”. Nevertheless, the country was thrown into an apoplectic fit over the matter. In a tidal wave of fear and stereotyping reminiscent of the perceived communist threat in the 1950s, alleged “paedophiles” were being discovered everywhere. Any adult, especially a male, found pointing a camera at a child was immediately under suspicion. Local councils banned the use of cameras on beaches; swimming pool operators reacted with similar paroxysms of paranoia; there was even a case where a father was prohibited from photographing his own child at a public swimming pool on the occasion of the child’s birthday party. I mean, really!

In 2005, three years before this uproar, Henson staged a major exhibition at the Art Gallery of New South Wales; and I went along for a look.  I found that I didn’t particularly care for his work but my reaction to that went along these lines: (a) he is a world-renowned photographer, (b) he has been granted a large amount of exhibition space by the premier public art gallery in the state; (c) he has work in the collections of major art galleries throughout the world; (d) I, on the other hand, am in a photographic wilderness; therefore (e) I should try to find out more about what he is doing and try to learn from it. So, I bought his book which not only contained reproductions of the images on exhibit but also a significant amount of text, including articles written by David Malouf, one of Australia’s most gifted authors; and Edmund Capon, the Director of the Art Gallery of New South Wales where the exhibition was being staged. I still do not care for Henson’s work; although I think I understand it a little better now as a result of my investigations. But it makes me angry to the point of fury that people should take one aspect of his work out of context in order to support their own twisted view of the world and use that to condemn him and his work as a whole. As Voltaire once wrote: “I may not agree with what he says, but I defend to the death his right to say it.”

Another Wikipedia article observes:

“In the USA and the UK, anything visible from a public area can generally be freely photographed. There are a number of restrictions, see Photography and the law for a detailed account. It is, however, common for police, security personnel and members of the public to use intimidation, or other tactics to attempt to prevent unwanted photography. To prevent, for example, industrial espionage or the photographing of children.”

I certainly felt intimidated by the confrontation with the security guard but that in itself was only a minor inconvenience and would have been forgotten as soon as I found a new subject to photograph elsewhere had it not been for the broader issues that the incident triggered in my mind. The first was the question of privacy that I have already discussed. The second was the question of artistic freedom, which in a sense, is the other side of the same coin. I had unwittingly contravened the Centre’s policy on this occasion and that made me, in the eyes of the Centre, an undesirable…a persona non grata. And to even be suspected of behaving inappropriately had made me question the ethics of what I was doing. But what about my own rights? I may or may not have a right to photograph people in a public place, whether in the eyes of the law or from a moral or ethical standpoint. But I do have the right to be presumed innocent until proven guilty.

I still do not believe that street photography, as an art form, represents a threat to society or to any individual member of it. Yet, clearly, there are those who would classify it thus simply because it is easier reduce the act of photographing people in the street to its lowest common denominator, to say that all street photographers are perverts and voyeurs (and by definition, that would include Henri Cartier-Bresson and Robert Doisneau), than to look at each case individually, consider the evidence and formulate a rational opinion based on that research. Why did Bill Henson’s portrait of a nude girl provoke such a hysterical reaction? Is it because people would rather destroy the perceived threat than admit they don’t understand it (and it might not be a threat after all)? Or were some people afraid that the “offensive” image would reveal, or even unleash, the blackness in their own hearts? Sadly, when the mob is baying for blood it makes no difference whether the victim is pure-hearted; the blood tastes the same either way.

I do not pretend to be a great photographic artist and you can question the quality of my work if you like; but do not impugn my intentions without first seeking to understand what my intentions are. That was the courtesy I offered Bill Henson and that is what I ask for myself.

You might say, if street photography creates an ethical dilemma for you, why not turn to other, less contentious subjects? The short answer is that I have taken photographs of other subjects. You need only to look at the range of images I uploaded to Flickr over the last two weeks for proof of that. Of eleven photographs uploaded, only one displayed a recognisable image of a person; two showed people too distant to be readily recognised and two were of people blurred beyond recognition. The remaining six images contained no people at all. But the fact of the matter is that, of all the subjects available to photograph, photographing people behaving normally in everyday situations is what I love most. By this, I do not devalue the work of photographers who choose non-person subjects. Landscapes can be dramatic; flowers can be indescribably beautiful; sunsets are spectacular, kittens are cute and there are wonderful abstracts waiting everywhere for photographers with the vision to see them and the skill to capture them. But people, more so than any other subject, hold a fascination for me in how they look, how they feel, what they are doing and how they interact with one another and their environment. Now, after that encounter with the security guard, I wonder if I will ever again be able to go out and take candid photographs of people, with a clear conscience. And photography without being able to show the joy and wonder of the human spirit, honestly, faithfully and without contrivance or distortion is, for me at least, a mine bereft of its richest vein.

So, after all this discussion, does a person have the right to go about their lawful business without being photographed by me? I suspect that, in the end, the only person who can answer that question is the person being photographed; and to pose that question to them would defeat the object of candid street photography. So, I just don’t know where to go from here. And if I cannot resolve this question I will either be forced to give up photography altogether; or you will be seeing a lot more of this from me: