Sometimes, I’m just ashamed to own a camera…
So I like photography. In fact, I love photography, and as a heterosexual, red-blooded, American male, I have kind of a thing for erotic and glamour photography, hence all the random sexy girl photos that I have to accompany these little blog posts I do. They’re all my work, all of consenting models. It turns out that if you’re talented, you aren’t creepy, and you ask nicely, you can find people who are willing to pose for pictures for you. In fact, if you’re willing to pay enough money, you can find people willing to pose for you if you’re talentless, creepy and mean! So honestly, there’s not much reason to go out of your way to take pictures of people against their will.
Except that mean, talentless creeps aren’t logical like that.
*sigh*
Anyway, so yesterday, the Texas Court of Appeals ruled that it is NOT illegal to use your cellphone to surreptitiously take up skirt photos of women wandering around on the streets. Apparently some dude was sticking his phone under women’s skirts as they walked around the mall, snapping a panty shot, and running. People caught him and the cops said they had nothing to charge him with. So one of the women, Halie Ricketts has been fighting it in court, and yesterday, the courts found that panty shots are protected by the First Amendment.
*double sigh*
So here’s the thing. I even actually agree with the premise behind Judge Sharon Keller’s ruling. Keller states:
Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendant’s mind’ that the First Amendment was designed to guard against.
She’s right! It totally is. The reasoning behind the court’s decision is a 2011 case where a man was accused of taking pictures of random children in bathing suits wandering around SeaWorld. Clearly the man was probably taking said pictures back to his apartment and whacking off until his palms were hairy and he’d gone blind. But that doesn’t matter. Photography laws in the US are pretty clear. You have First Amendment protection to shoot whoever you want in public, so long as the subject has no reasonable expectation of privacy. I can stand in the mall and shoot pics of sexy girls down the halls and in and out of stores. I CAN’T take pictures in the changing rooms. I can stand at Sea World and shoot pics of little kids in their bathing suits. I CAN’T take photos of them in bathroom stalls. If you’re nude sunbathing on your front lawn, I can snap pics of you from the street and sell them to the tabloids. I CAN’T take pics of you having sex in your bed with my telephoto lens through the bedroom window from my house across the street.
These are good laws. They make sense!
And they’re fine. Or they should be. Because, a reasonable person looks at a woman in a skirt and says “she has reasonable expectation of privacy for her nether regions. You can tell by the way SHE’S WEARING A FUCKING SKIRT!!!!”
But you know… Texas…
So apparently the correct way of looking at it, in Texas, isn’t “respect someone’s privacy.” It’s not even “she was asking for it, look at how she’s dressed.” Nope… apparently the standard is now “is she didn’t want people taking pictures up her skirt, she shouldn’t have had a vagina.”
‘MERICA!!!
I have no words..
Wow!
“Reasonable expectation of privacy” Shouldn’t people have the right to define when they expect privacy in regards to their own image?
Both on-line and in the real world. The norm should be that we all expect privacy and any data shared that pertains to us personally, should not be available for use without our documented consent. As it stands now, we are all responsible for protecting our own privacy. How? Well apparently by not creating the possibility of breach.
So on-line, your only real defense is to not share anything digitally. And in the real world, it is to not be seen outside of your home.
It is ridiculous.
Vic: That’s a fair argument, and a lot of people think so, but no. And we can’t make that happen, because otherwise news photography effectively becomes illegal (and security surveillance for that matter). To be more specific, it works like this: Assuming you have no “reasonable expectation of privacy” I can take your picture whenever I want. If you’re walking down the street. If you’re in your work building. Whatever. I own the photo. Not you. You own your likeness, but not a reproduction that I create of it. Forget photos for a moment. If I decide to paint a picture of a six foot interracial dude with glasses, you can’t say “hey, that looks too much like me. You owe me money.” Cameras are simply tools of expression that are usually better than paintbrushes. They’re not even perfect. there are tons of pictures that “don’t look like the person they’re of” because of a trick of the light or bad focus or whatever.
But the point is, if I take a picture of you crossing the street, I can publish it to the newspaper with the caption “Vic Carter walks across Carson Street.” It’s reporting a fact, and therefore free speech. Even if you run out of your house naked, I can post the picture and say “Vic Carter was naked in public today.”
What you do own is your likeness for expression and advertising and the like. So I can take my photo of you and put it in the paper. I can sell it to an art gallery. I can even sell it as a poster or print. I CAN’T put it on a billboard that says “Buy Coke” because that misrepresents you. That’s what model releases do. They give me the authority to use your image for solicitation of other services. They also explicitly note that you had no expectation of privacy when I took the image so as to cover my ass. But if I don’t have a release, shy of misrepresenting you, I still own the image, not you, so long as I don’t use it to misrepresent you.
In this case however, the question is whether or not wearing a skirt is reasonable expectation that your underwear won’t be photographed. Apparently Texas has decided it’s not.
Dmitri: Those cases do come up. And its complicated. But the real answer is, that doesn’t change the law. A private institution can have a RULE against photography inside, but that’s not the same as having a law. Most places we go our private property. You work in a building. It’s not “public,” but I bet you or a co-worker has taken a cell-phone pic at some point or another, right? Same thing…The mall can certainly have the guy thrown out, and if he returns, that would be trespassing, but at this point he already has his photos.
As for models. Ummm… like I said, I ask nicely? (or actually, often they ask me)
“That’s a fair argument, and a lot of people think so, but no. And we can’t make that happen, because otherwise news photography effectively becomes illegal (and security surveillance for that matter). ”
Consider that surveillance cameras are often clearly marked or at least referenced as being present. Also consider that in reporting the news, there is no reason the same can not be posted without limit in regards to what they can show/report.
So the question becomes, why would someone need to “steal” a photo of you? Legitimate sources could easily ask permission OR be protected by clearly marking an area where filming will occur. That puts the choice back into the hands of the individual, while still protecting free speech.
Can you give me an example, in terms of free speech, where it would be necessary to take an image of someone without their knowledge? Acknowledging the idea that security cameras and news filming would be clearly marked and easily avoided.
“So honestly, there’s not much reason to go out of your way to take pictures of people against their will.”
Well, y’know, except for the fact that these upskirt photos are less about the the photo itself and more about how it is acquired. The appeal of the photos to these creeps is the lack of consent itself. It’s about knowing they had the “power” to violate that person’s boundaries.
That this judge doesn’t think you have a “reasonable expectation of privacy” for the parts of you that you have deliberately covered with clothing is pretty terrifying. Feels like just another extension of the unsettling attitude that while in public, women are considered public property.
Jessi, since there is no law that stops men from being photographed in this manner, I don’t think it is fare to say that it is an indication of a biased against women. If a woman was taking “gun” shots of men’s arms, or say embarrassing beer belly shots was treated differently, then I would agree with you, but as it stands the law is equally wrong for both sexes.
Dmitri. As public servants, why would the police have an expectation of privacy. So just like marking a news area, or a surveillance area, by nature of being police they would(and should) be open to public scrutiny. In short, the police, when on duty, are no more entitled to privacy in a public space as would be a clerk at the 7/11 while operating the register.
Right?
Massachusetts passed a new law, the VERY NEXT DAY, making this specifically illegal. http://www.foxnews.com/us/2014/03/06/uncertainty-looms-following-upskirt-ruling-as-lawmakers-rush-to-amend-law/
I don’t think Texas will be quite as quick, but they’re already working on it.
Although, i’m pretty sure it would be treated differently, because we’re talking about parts which were under clothing. You’d have to circumvent the clothing in order to get the shot.
In the case of the scenarios of arms or beer bellies, those parts would either have to be 1.) already not covered by clothing and exposed, or 2.) the photographer would in some way have to get the camera inside the clothing. If someone were running around sticking a camera in guys’ pants and snapping photos, I’m pretty sure they could arrest and prosecute because it would involve physical contact to circumvent the clothing.
The law may not be _intended_ to have a gender bias, but since it doesn’t see actively “getting around” the clothing a person is wearing to get the shot without their consent as a problem, it has one.
Dimitri I am not disagreeing with you on what is allowed BTW. I am just suggesting that protection of an individuals right to privacy need not infringe on the first Amendment.
“The law may not be _intended_ to have a gender bias, but since it doesn’t see actively “getting around” the clothing a person is wearing to get the shot without their consent as a problem, it has one.”
Because women where skirts and men don’t? If a guy wore a kilt, he would not be protected any more than a woman, thus there can be no bias. Right? Gender bias implies this law applies to one gender and not the other. Which is not the case.
Vic: specifically, the reason to be able to shoot you without your permission is that’s how news works. I report on things I see. If you’re robbing a bank or if you’re just making a speech, I need to be able to say “there’s Vic Carter, doing whatever.” if you controlled your image, it would hamper the entire free press. And we, by constitutional decree, don’t distinguish between what is and isn’t the press.
Jessi: agreed. The decree as worded is not EXPLICITLY gendered biased, but certainly implicitly is. The idea being that, yes, given what she said, if I as a man, had a up skirt shot taken she would not protect me either. But I’d argue that if male skirts were more common patriarchal hegemony wouldn’t allow for that to happen and the judge would have ruled the other way.
I mean, maybe, maybe not… the nice thing about being a blogger and not a judge is that I don’t have to back that up other than to say that my gut tells me so.
“Because women where skirts and men don’t?”
Yes. It’s a law that, in the way it is written, disproportionately _affects_ women differently than men because of cultural norms. That’s a bias.
Chris why would you have an expectation of privacy when breaking the law, or giving a public address?
Jessi, I am sorry but that makes no sense. The law was not written to allow upskirts of women. Thus there can be no bias. It may affect one more group than another because of fashion trends, but that has nothing to do with the law itself or who wrote it.
To be biased it would need to have been specifically crafted to affect one group over another. When the law was written there probably weren’t cameras or skirts to sneak pics up…
Vic: if the law weren’t the it is, it wouldn’t matter. If I shoot a man in cold blood in the middle of the street, the news gets to take a photo of it. Or altruistically if I see a kitten caught in a tree and save it, that’s also news. The people have the right to photograph it. Even if I’m Kim and Kanye on the beach. That’s news.
On the other hand if I’m Kim and Kanye in our living room or I shoot a man on my enclosed backyard that’s different. It’s what G. Sumner Hayes was trying to get across.
It seems the difference, Vic, is that I reject the assertion that bias requires intent.
Is a die which rolls a 6 40% of the time unbiased if it does so due to accidental differences in manufacturing process?
Jessi, that is quite obvious.
Bias never requires (and in fact in modern law almost never implies) intent.
For instance if I make a ruling that health insurance doesn’t cover birth control pills it’s not intended to be gender biased because I’m not buying them for men either. But it still is gender biased because it disproportionately affects women. If I make a ruling that I’m not testing for sickle cell anemia then it’s racially biased because that disproportionately affects African Americans.
Even outside of law bias is almost never intentional. I prefer chocolate chip cookies to oatmeal raisin. I’m not trying to hurt the oatmeal raisin industry but I still have a bias.
Again with the chocolate chip cookies, Mav. Are you _trying_ to get the authorities involved?
Keith Dice can’t be bias. If you leave it sit on the table with the 1 facing up, by your logic the dice is bias towards being #1, 100% of the time. An error in production does not create a bias in the dice, it creates a flaw.
Chris in your example, by nature of it applying to one group over another it is in fact bias. That is what bias means. Would a law against speeding be biased against women if more women decided to buy sports cars?
Would a law against stealing be more biased against women if more women decided to rob banks? No.
As soon as a group is singled out, or a law is meant to apply to a certain group, then bias is almost inevitable. I am not sure why there is a need to claim this to be some gender issue. It is a privacy issue, gender is irrelevant IMO.
Dmitri: yes. Some rape statutes are biased. Even some that are meant to protect women. Not all bias is even bad per se. But for instance there are instances where male victims have lost rape cases because the law argued that women can’t rape men.
IF more women bought sports cars, yes that would be biased. In fact, the fact that more men are pulled over because they tend to buy sports cars over women has come up as a case of gender bias.
MA recently (as in March of this year) went through the exact same thing, but in the case of MA, it took all of about a week before the governor had signed legislation stating that anyone who “photographs, videotapes or electronically surveils” another person’s sexual or intimate parts without that person’s consent would face a misdemeanor charge and a maximum penalty of 2 1/2 years in jail and a $5,000 fine.
“Would a law against speeding be biased against women if more women decided to buy sports cars?”
No, but it’s sounding like the law must be biased against sports cars in some way.
To weigh in on the original issue, I feel like the judge called this one wrong. We should have the right to privacy when we have a reasonable expectation of privacy, but not just based on our location at the time. Instead, it should also be based on the situation. It should be reasonable for a woman to assume that no one will be able to see her underwear when she’s wearing a skirt when she’s walking along. We can assume that if she doesn’t want her underwear seen she’s likely canny enough to realize things like “hey, there’s a guy lying on the ground over there, I probably shouldn’t walk right by him”. The guy used his camera to take pictures of things that he could not otherwise see. If the women had been walking on a glass staircase and assuming that the people under them couldn’t see up their skirts, that would be a different matter since they would have made an unreasonable assumption. In this case, the guy specifically sneakily captured images of things that otherwise would not have been seen by anyone. It should be reasonable to assume that if you have taken reasonable steps to ensure that no one can see a part of your body, someone else taking steps to expose it is violating your privacy. If we don’t accept that, then we also have to accept that taking photographs of people using infrared cameras at public pools should also be legal (noting here that many swimsuits are almost completely transparent to certain frequencies in the infrared spectrum).
” IF more women bought sports cars, yes that would be biased. In fact, the fact that more men are pulled over because they tend to buy sports cars over women has come up as a case of gender bias.”
No it wouldn’t. Because if the trend shifted, and men suddenly bought more sports cars and were pulled over for speeding more, the law would not suddenly switch bias. The law is against speeding. Not sports cars. And not men.
So a law that does not explicitly protect women who wear skirts from unwanted photography is not bias against women. It simply does not account for that invasion of privacy.
To be bias it would have to state that men who wore skirts could not be photographed, while women who wore them were fair game. As it stands the law protects an invasion of privacy, nothing more.
Vic, I think that the rest of us understand that you think that “bias” and “intentional bias” are synonyms. That doesn’t really jibe with standard English usage of the word, though. Repeating it a lot isn’t likely to convince anyone else.
This is getting convoluted because of an example that doesn’t actually occur. Let’s look at a real one. For instance, the law that says that women have to wear shirt and men don’t is clearly biased against women. Right? Now, I believe that women shouldn’t have to wear shirts. And some jurisdictions agree with me. But, when the law allows for women to not wear shirts, they do not have the expectation of privacy to not be photographed topless and public.
The law that stops women from going topless and public is a biased law. If a law existed that allowed women to go topless in public, but also prohibited people from photographing them while doing so, but did not prohibit the top of photography of men, that would also be gender bias.
I could be wrong Mav, but isn’t your issue with the concept of privacy, and how private is a skirt? The idea that under a skirt is less private than under a flimsy changing room door in the middle of a store is crazy.
Scott: yep. That is pretty much the point of my original post, yes.
The recording-police bits also partially rely on the fact that they are public servants (doing work for the public in public places). You can’t necessarily film a cop who’s in someone else’s house, you can’t necessarily film a cop who’s off duty.
“The law that stops women from going topless in public is a biased law. If a law existed that allowed women to go topless in public, but also prohibited people from photographing them while doing so, but did not prohibit the top of photography of men, that would also be gender bias.”
Of course that is bias, it specifies different applications for different genders, which is by definition a biased application. Just like all of your other examples. As soon as you separate application into groups, you create a bias.
A better example, one actually relevant to the issue being discussed, would be a law that allowed people to go topless and did not prohibit the taking of pictures of topless people. If more women than men decided to go topless, that would not make the law biased against women, it would simply mean that more women are in a position to be photographed. Intent of the law, allowing photographs of topless people, is irrelevant.
Even if the goal was to get more photos of topless women, the law would still not be biased as it does not differentiate between the genders.
The issue is privacy, plain and simple.
“Necessarily.”
Vic, you have asserted that it would be okay to flip the presumption about whether you can film to the default of “no” because we’d make exclusions for people making public speeches, committing crimes, and public servants like police officers. Unfortunately that STILL doesn’t work. First, the photographer shouldn’t have to know that many details: “that guy is acting suspiciously, but I don’t know for certain that he is breaking the law, can I film him?” or “Is this loud guy formally addressing the public, or is he just a normal opinionated person?” or “is that cop on duty?”.
Furthermore: If a criminal is acquitted, can he sue someone who took a photo of him that was used as evidence since the court ruled he wasn’t a criminal at the time? Can no new source take wide angle shots of a disaster because they won’t be able to get photo permissions of all of the people in it? Can a citizen not film a cop who is overstepping authority because the photographer can’t be sure of getting a release from the victim of the abuse?
Jesus Christ man, do you think we’re even disagreeing.
When I say “You can’t necessarily film an off duty cop” I am implying that it’s because they’re not in a public space.
Once again, the fact that Dmitri is magically invisible to my blog, makes this conversation really weird to read over there.
Yeah. I know. I actually read the summaries before I wrote the initial post. I still argue that the way they did it was not it the spirit of the SeaWorld law they used as precedent. And they knew that!
Malevolently you can read that as them not caring about women’s rights. But even in the most altruistic benevolent sense, if they’re trying to force the law to not be boneheaded,they’re legislating from the bench, which is also wrong.
I wear a kilt and have never had a problem with anybody trying to take upshot pics. Instead, Wearing a kilt makes people very handsy, since they are very curious over the question of underwear
Charlie that goes back to the whole Patriot Act thing in regards to surveillance. So to insure that a person who might be at a spot where suspicious activity is happening, happens to have a camera, and decides that he wants to document that activity, we allow a person to take a picture of anyone, anywhere(public) at any time. That’s backwards IMO.
You could easily protect a person who took a picture(of suspicious activity) in good faith for the same purpose while prohibiting people from taking photographs of individuals without consent.
If I am at a public event(ballgame, speech, whatever) I should have no expectation of privacy. I am at an event with other people. If I am in a restaurant, bar, supermarket, whatever. Same thing. I should expect surveillance to enable them to protect their wares. Store surveillance. I should not have to wear pants(in lieu of a skirt), a bra, long sleeves, whatever, to ensure some random person is not snapping pics. Why? Because without my consent, there is no reason for those pics to exist.
And film crews set up areas marking filming all the time. That is all it would take. A sign next to your tripod that says filming, eliminating your liability to anyone who walks by. As with online data being farmed without most peoples knowledge, let alone consent, there is no reason why how that data or image is obtained isn’t MY choice.
News, filming public servants, etc. That was all addressed above. If you focus the protection AND responsibility on the individual, none of those things are an issue. Don’t wan’t to be in that wide angle shot? Walk around. Missed the sign? Is missing a speed limit sign a viable defense for speeding? I think there is a middle ground that stops ALL unwanted pictures while allowing for documentation of events and artistic expression.
Of course not. Again, in a setting of public interaction, you can only expect so much privacy. And in your example, people could easily get out of the way. But on the street? Shopping? Mowing your lawn? There is no reason for someone to photograph you without consent. You know the famous pic of the sailor kissing the girl? That would still be fine. Public event, public setting. Being in public, and being at a public event are two different things, right? I don’t see the distinction in terms of making a law all that complicated.
I’m not clear why you keep insisting that there’s no reason to photograph someone without their consent, Vic? Are you trying to argue that you don’t like it? Or are you trying to argue some greater moral cause? Or are you trying to argue that it’s illegal. For the last one, it most certainly is not. Which is the point. As to the first two. I certainly grant you the personal opinion, but it’s one of the founding principles on which this particular democracy is based. I mean, on some cosmic level, there’s no reason for someone to be able to own a gun, or have free speech, or be guaranteed a trial by jury. But we’ve decided as a society that those would be the principles on which we govern ourselves. Photography extends to press protections and therefore first amendment rights. I certainly am not one to say that all laws are good — hell, that’s sort of the point of this post — but exactly what, in as few words as possible, is your issue with the concept of the law as it exists? Ignoring the specifics of this case, the sexual nature, etc… you seem to have a problem with the base concept of being photographed. Why?
Vic, there’s a genre of photography called street photography. Cartier-Bresson is a famous exponent of the genre. It involves candid photographs of people in their daily lives, and there is certainly a debate around where “street photographer” ends and “paparazzi” begins. In general, you can’t ask for permission in advance, since that would interrupt the very moment you intend to capture. But should you ask permission afterward? Do you need to? In any case, you asked for a “reason” why anyone would need to take a picture of someone on the street or mowing their lawn. There is a clear aesthetic value to such work, and there would be a clear loss to the world if it were prevented. Now, reasonable people could certainly disagree about whether that loss would be worth the added privacy, but I think that there is definitely a significant artistic purpose to candid photography of daily life.
Privacy. The first amendment was not designed to invade a persons privacy. It was designed to allow free expression and protect out right to protest injustice. Are you suggesting that a persons only recourse to not be photographed, whatever the reason, is to stay inside? Talk about blaming the victim. LoL. Your rights should end at my person. Your free expression does not need to include me. Would you like someone touching you without permission? How about grabbing a lock of hair? In the digital age, your likeness and image are equivalent. It is a possession. Taking that image without permission is wrong.
Yes Michael, in the modern age, you should ask permission. Otherwise you are stealing.
Suppose I am a musician. And you take a random picture of me, and turn it into art. Say I get famous, and now that art is worth a lot of money. Do you owe me a cut? Your art, but my face. My face that is worth something because of my music, not your art.
Say you asked me after the fact, and I agreed. No fuss, no muss, everyone is a winner. A law such as this would protect both parties and eliminate a lot of ambiguity.
Ok. Several things going on. Privacy: no. You have no reasonable expectation of privacy while in public. That’s what private and public mean. Think of it this way: photography is illegal only when you control the means of visual access. I can’t see you in your house unless you invite me in. So you control photography there. On the street, in the mall, even mowing your front lawn you don’t expect that I can’t see you, so you can’t expect that I can’t photo you.
A concert or a football game is different. I am only in the venue at the discretion of the event holder. I can’t see it unless they let me in, so they can set the parameters of photo disposition. Same thing if you invite me into your home.
There isn’t any ambiguity. This seems to stem from your impression that you own your likeness. But you actually don’t. Yes, if I see Lady Gaga crossing the street I can photo her and sell it. I owe her nothing. I also owe her nothing for painting a picture of her. People do it all the time.
I think it might clarify the discussion if folks would make clear when they are making a claim about what is current legal fact in the United States, and when they are expressing a personal moral opinion about what *ought* to be true. My impression is that Vic is primarily expressing personal moral opinions and Mav is expressing both moral opinions and statements about legal fact. (I’m not a lawyer, so I don’t know if Mav is right or wrong — I think he’s right — in his discussions of legal fact, but at least those can be settled.) So, when Vic says “you are stealing” he doesn’t mean “you could literally be arrested and charged with theft if you pulled that shit in North Carolina”. He means “you ought to act as if that were stealing because it is morally equivalent in my opinion.”
Michael: yeah, that’s why I asked him to be specific before. I think he *WANTS* to own his likeness because he feels like there’s no good reason for photography of him to exist without his consent, but I think most of us disagree. Hence your very good example of street photography, for instance. There are plenty of “good” artistic and reporting reasons for what he wants to not happen. But good is relative. Vic doesn’t care about those reasons, so they aren’t “good” to him.
For what it’s worth, I think the journalistic examples have even greater moral force. I also think recording interactions with individuals of power (whether they are governmental — say, cops — or corporate — say, Michael Moore’s documentary subjects) is a necessary tool to prevent totalitarianism. Otherwise you risk the Orwellian memory hole.
http://www.theguardian.com/world/2014/mar/14/hungary-law-photography-permission-take-pictures
I agree that that is necessary but I also submit that the ability to document the mundane is equally important. Forget newsworthiness of the specific subject, I think it’s important to preserve the essence of life for history.
Or to be really mundane, something like this. Documenting the state of the world in a way that couldn’t be done if the photographer had to ask permission.
“Your rights SHOULD end at my person”. Nothing ambiguous about that statement. I didn’t say they DO end. But I definitely think they should.
I also said, there is a clear difference between being in a public place and participating in a public event. Again, no ambiguity.
Nothing I suggested halts artistic or journalistic expression. Doesn’t even stifle it. Claiming we shouldn’t have a say in how a non consensual image is used, is silly. Why not? What reason is there to no have consent for something a person is not aware is happening?
Do you like the fact that everything you do, post, read, buy, comment on, share, etc. is being recorded? That it is being sold to the highest bidder? Because that is a fact.
And I already referenced the above photo as an example of a public event, where no reasonable expectation of privacy would apply.
No one is arguing the importance of documentation. But no one needs the ability to sell pics of Lady GaGa buying a latte. Or Chris Maverick tying his shoe. “Hey do you mind if I get a pic?” is not going to stifle artistic expression anymore than photos of baby Kimye is going to let our descendants know who we were as a people.
Chris that pic would be no less relevant if all of the people there knew they were being photographed.
Yes it would. You don’t understand how photography works. A photo where the subject is aware of hé photographer is fundamentally different than one where he is not. You will not find a single professional photographer who will disagree with me there.
Sure, I could go ask all 100 of those people if they minded after the fact, but if even one of them does — Maybe a kid was supposed to be in school. Maybe a woman is cheating in her husband with the guy standing next to her… Maybe Bob is just having a bad hair day — then the moment is lost to history.
As a practical matter, I doubt you actually could round up all the people to ask permission. Presumably they have shit to do and wouldn’t just be standing around on the off chance a photographer might need to come have them sign a waiver.
I acknowledge that you don’t care about that issue. As I said “good” is subjective. But I do, as do most visual artists, particular photographers. Is is one of those occasions where I’m really happy the law is in my side. Which is why the SeaWorld case ended the way it did in the first place.
You are overestimating the value of an artist as well as underestimating the necessity for privacy in the modern world.
You don’t need to be a photographer to understand the importance of spontaneity. As a musician, improv and spur of the moment ideas are where the magic happens.
I would rather have laws that define what you are allowed to do in regards to privacy as opposed to laws that tell you what not to do. Why? Because the individual should not have to go to court to stop some pervert from peeking up a skirt. The individual should not have to come to you after the fact and say, “I was not supposed to be there when you took that photo, please blur my face.”.
Perhaps you don’t understand or care how exposed we are in the modern world. Personally I do. And I am not the only one.
I am not… not at all. You make the mistake that if people don’t agree with you, they obviously don’t understand the issue well enough. I certainly do. I designed computer software for nearly two decades including dealing with security, HIPPA compliance, FERPA, COBRA and a gazillion other privacy issues. Now I study culture for a living. I get what’s at stake. I simply disagree with you.
And you’re sort of saying why in your examples. You’re reasoning hinges on the idea that someone has infringed upon your privacy by taking your picture. You equate it with touching you, or stealing a lock of your hair. You use words like victim blaming.
But there’s no victim. If anything, there’s simply a subject. No physical violation has occurred. The people on the street in my photo were walking the street in public and in full control of how they presented themselves in that situation. They knew they might be SEEN. You insist that there is distinction between being SEEN and being RECORDED. I say there is not. This differs from taking an upskirt photo with a cell phone because in that case, the subject (the woman in the skirt) had taken reasonable attempts to control her public exposure. The photographer manipulated the situation in order to expose more of her than she was intending with reasonable steps.
To look at the other side, I’d actually argue differently if it were an incidental panty shot. Say a woman is wearing a billowy, flowy, skirt. If a guy is standing on a street corner with his camera, and a strong wind picks up, and blows the skirt of the woman up as she walks by and he snaps a picture, I actually would defend his rights there. He is not causing the situation. He is documenting it. When one wears a skirt, one acknowledges wind as a REASONABLE risk. One does not acknowledge perverts intentionally exposing them as a REASONABLE risk. It’s the difference between depantsing someone and them having a wardrobe malfunction.
Look at your own examples. You keep comparing it to music. But as a musician, you certainly don’t feel the need to ask the permission of say, the president, or your ex, or the bum you saw on the street in order to write a song about one of them. You simply do it. Similarly, a painter might do the same thing. As does a newspaper reporter. The only difference between a photographer and those other artists, is that the photographer’s chosen medium is *generally* (not always) more readily interpreted by the viewer.
Two decades ago most people didn’t own a computer, let alone have the ability to manipulate personal data to the extent we see today, so I am not going to debate the ins and outs of internet security with you.
In the modern world, as of this moment. Ever aspect of a persons digital life is recorded, sold, and resold, all without the knowledge of a good portion of the internet “savvy” public. There is no debate on that, it is a fact of modern life.
We both “understand” the issue, as we have done on may before this one. How we choose to deal with/interpret the issue, are on opposite ends of the spectrum. I don’t doubt your understanding, I simply so not believe you are correct in your assessment of the situation.
A photo, is not the same thing that it was 10 years ago. Just like e-mail, or your social network. All of those things have changed, and the laws that govern such things are woefully behind the times.
Do we own our information? I say we do. I say we should. There is no debate, if you disagree, well ok then. Your post was about a law that needs to be addressed. My response is in agreement with that change, but also a belief that it should go further.
I am not suddenly going to stop thinking we deserve privacy, just because you think it would stifle artistic expression.
The moment our images could be stored forever. The moment they could be manipulated as to tell a different story. The moment my information became a commodity. The idea of public domain flew out the window.
We SHOULD own our data. That includes our likeness, not because of some half baked opinion in regards to personal vanity. No. My image should be my own, because in this day and age, it has value, it has import and no one else should decide how or when it is used but me.
A song about space cats is not the same as a song called Cosmic Hellcats that references your characters, situations and story. A photo of a person… You could do whatever you want to that photo, and it will still BE the person you captured. It will still be their face, I think they should have a say in that, nothing more.
Cosmic Hellcats is an intellectual creation. I own it because I made it. That’s copyright. Similarly I can’t draw a photo of spiderman and sell it.
BUT I can sell a photo I take of Andrew Garfield or Tobey Maguire in their Spiderman outfits.
Yes, images are worth something. You want to believe the Internet makes that different but that’s because that’s what you know. But that’s not true. Images were always worth something. And you’ve never owned your appearance. Just because it’s worth more now (at least in your argument) that doesn’t mean you get to claim it.
I’m trying to give you the benefit of the doubt here, as I always do. But once again, I think you don’t want to see the other POV.
So clear and to the point: what is being stolen from you when your picture is being taken?
Chris, your privacy. I will state again, it is a privacy issue. And IMO, if the only argument against such protection, is the loss of art for posterity sake, then I believe the solution is to craft laws that specifically address that need, while banning other forms of candid photography.
There are places in the world where you must get consent. There are places where you only need consent if you want to publish. There are places where you aren’t allowed to take candid pics of kids.
The reason for these laws? Privacy concerns.
Beyond that, data as a commodity. Images are data.
And for the record, in a good portion of the world, I most certainly do own my appearance. If you cant sell/publish it without my consent, guess what, I own it.
I believe that art and privacy can coexist. Can’t be any clearer than that.
“The moment our images could be stored forever. The moment they could be manipulated as to tell a different story. The moment my information became a commodity. The idea of public domain flew out the window.” So, when photography was invented the public domain ceased to be? You act like these are new changes. They aren’t. Photo manipulation got easier. Storing things got easier. Information about you got easier to sell. But all of these things were already being done a century ago.
I would also like to note that what you’re suggesting as the standard for the law would make Google Streetview illegal. It also means that you can never publish a photo of a crowd or most any photo taken in a place where other people are around. And, as resolution improves could well ban aerial and satellite photography.
It is the case that some countries have a much stronger presumption that pictures and videos of you belong to you (see the recent TechnoViking verdict for an example), but even in those countries, the taking of such pictures is not illegal (except Hungary, due to a controversial new law: http://www.theguardian.com/world/2014/mar/14/hungary-law-photography-permission-take-pictures ). Instead what’s been made illegal is publishing or profiting from them. Most countries have very few restrictions on photography and are much closer to the US standard than the Hungarian one.
” It also means that you can never publish a photo of a crowd or most any photo taken in a place where other people are around. And, as resolution improves could well ban aerial and satellite photography.”
I am pretty sure that in every part of this discussion I have said it would be easy to account for such things as, the public record, mapping software(google allows you to remove your home, avoiding any privacy issue), public events, etc. No one is suggesting these things should not happen.
My point is that the individual should be given the first right of control when it comes to privacy. And as I stated, there are plenty of examples where this works just fine. Art and history do not stop being recorded, and TV networks are safe in making you look like a dumbass while watching your favorite team.
You act like I am asking to ban all photography and jail all of the filthy artists. I am not. So if your argument is that making you ask permission to film people for your works would make it inconvenient for you to create said art, I am sorry but no. Many places already prohibit free for all commercial use photography, so I don’t see the problem. Do you have an example, where something like this truly limits the artist? Understanding that you can take any shots you like, but once you decide to display/distribute, then you would have to get permission(again, like some places around the world).
And yes you could make googly eyes on photos and drawings since man started creating them. Lets not pretend that in an age of global distribution, where everything we do is a commodity, images have the same meaning or value as they did, even 20 years ago, let alone 100. Rather than rely on the integrity of an artist, I would prefer a standard where I don’t have to seek protection after the fact.
Google Street View isn’t mapping, it’s a photographic survey of what’s visible from every road. And until they did it, no one had any idea that they would or that it would be useful. Your law wouldn’t have had an exception for it. In order to do it, they would’ve had to get the law changed. You may have an exception for Google Street View, but do you have an exception for what highly useful thing people will think of next?
And I’m also not talking about “public events”. I’m talking about just taking pictures in public. If you take a selfie in Times Square, you’re gonna have other people in that picture. A large percentage of photography in public places captures more people than the intended subject. There are a bunch of places with policies against commercial photography, but a policy isn’t a law and many of those policies are unenforceable as a result.
Oh, and regarding “as I stated, this works just fine”: yes, you stated that, but it’s not true. As I showed, Hungary is the only country which has adopted the standard you’re advocating, and they only did it last year, so it’s not clear that the standard you’re talking about actually works.
It would have if people were in the photo(as does happen from time to time), but ultimately that would not have been an issue as Google blurs people and license plates in their images anyway. And street view is part of their mapping software, not stand alone. It is a feature of Google Maps. Just like satellite view and turn by turn directions. It is also a photographic survey. It is also bound by privacy laws, which is why, satellite view was not in real time, though I think this has been changed.
Satellite view isn’t in real time because we don’t have that level of satellite coverage. There are only so many satellites and they only have so much picture range and they aren’t in geostationary orbits so they move up and down. It has nothing to do with privacy concerns.
Google chooses to blur faces and license plates because they feel that doing so is what their customers would prefer, but in the early days of the service, it did not do this. When they first started, they did not blur faces or license plates, although some would be blurred accidentally due to the fact that the pictures are taken from a vehicle as it drives around. They do not have a legal obligation to blur anything because there are no laws in the US which restrict what you can do with those sort of photographs. Google was, in fact, sued by someone who claimed that Google had violated their right to privacy by taking pictures of their house. They lost. http://www.cnet.com/news/google-wins-street-view-privacy-suit/
And I realized that I never answered your question about the art which would not happen under your proposed laws. This sort of art would not happen under your proposed laws: http://en.wikipedia.org/wiki/Street_photography And if you make an exception so that they do, then your proposed laws no longer cover anything since anyone can claim to be a street photographer or you have to have a government agency which certifies who is or is not an artist.
There are limits on the resolution of satellite images. Real time or not, those limits are due to privacy/security concerns.
Regardless of obligation, the reason why Google blurs objects is clear:
“Your privacy and security are important to us. The Google Maps team takes a number of steps to help protect the privacy and anonymity of individuals when images are collected for Street View, including blurring faces and license plates. You can easily contact the Street View team if you see an image that should be protected or if you see a concerning image.”
As for street photography. I still believe you can have both privacy and freedom to pursue art. One need not infringe on the other.
“When we do a lousy job of covering law, or when we put up with journalists doing so, we’re doing a lousy job as citizens.”
That is the problem with pretty much everything posted online.
This article brings up good points in regards to consent. I would say that any statute designed to define “consent” should include provisions for intended use. I still consider a persons image to be their property, but I also recognize the need for historical documentation and to a lesser extent, an artists ability to capture the moment.
So intended use should be part of a law, in a much more detailed fashion than the very vague manner in which they are defining “sexual gratification”.
Vic says: “This article brings up good points in regards to consent. I would say that any statute designed to define “consent” should include provisions for intended use. I still consider a persons image to be their property, but I also recognize the need for historical documentation and to a lesser extent, an artists ability to capture the moment.”
That’s the part that you keep blocking on. It is not about consent. The article (http://www.popehat.com/2014/09/21/texas-court-makes-upskirts-mandatory-outlaws-kittens-hates-your-mother/#more-22892 for my record, since Dmitri is blog-invisble) isn’t dealing with defining consent. Well, I know it is to you… but the law is clear on this. The article even says that the court recognizes that:
“we all effectively consent to being photographed when we go out in public”
The issue is what we’ve all been saying, whether you can broadly define exceptions to the law which would allow for consent to be an issue, as the Texas law appeared to do. The court found that THAT is a violation of First Amendment law. Which is what most of us have been saying all along. It has nothing to do with you owning your image at all. And in fact, implies specifically the opposite.
“This statute bans non-consensual photography (with a definition of consent that is not clear even to the state prosecuting under the statute) if someone has sexual intent. As the court points out, the state is perfectly capable of drafting a narrower statute, and does so in the next subsection by banning nonconsensual photography in bathrooms and private dressing rooms.”
1. It is pretty easy to narrow the definition of consent.
2. It is also possible to limit the intended use of said imagery(without consent), while protecting the first amendment.
What I have been saying is that you could eliminate all of the ambiguity by simply requiring consent for any use of a persons image in published work. You could also protect personal privacy by clearly defining what is and is not private/public in regards to a persons being.
And while I understand that people like to take a very liberal approach to the assessment of the first amendment, no where does it say that “free expression” trumps personal liberty. In fact there is no real consensus as to what “free expression” means. Some think it grants people the ability to produce anything they like for any reason. Others could very easily argue that the reasons behind the first amendment had nothing to do with allowing people to say or do anything they like, but rather was designed to protect them from tyranny.
A personal right to privacy is not tyranny. So while you may not agree with a more conservative assessment, that does not mean that it is expressly wrong as the whole clause is up to the interpretation of the prevailing ideology at the time of question.
Suggesting that we craft laws to eliminate that ambiguity is not akin to denouncing the first amendment. Quite the contrary.
The problem here and in many statutes such as this, is too broad an interpretation. Too much left to the discretion of the police or the courts. We don’t need more complicated laws, we just need ones that are worded better.
I am not arguing that the first amendment prohibits public photography. Quite the contrary. What I am suggesting is that it does not explicitly protect such activities.
What I have suggested, over and over again, is that laws regarding such things could/should be constructed in such a way as to not limit freedom while also insuring privacy.
This, like many things posted by Chris are not necessarily matters of right or wrong, allowed or not, but rather examinations of different interpretations.
There is no true expression of a right to “privacy”. However, there is the 10th amendment which assigns any power not expressly granted or prohibited by the constitution to the states and the people.
So a state could technically craft its own privacy laws, provided they did not interfere with the constitution.
Except that the courts have held specifically and repeatedly (and I’m on my phone right now so it’s too hard to quote or cite but it’s in Dmitri’s article) that first amendment DOES protect photography. You certainly COULD make a law that defines things the way you want. It’s not that we don’t understand you. It’s that most people here (and the federal court system) disagree with your logic. We don’t want it to be, because whether you want it or not, what you’re asking for hampers free expression.
If I want to do a piece called “men who hate with the first amendment” and I wait outside your house on the sidewalk so I can snap a picture of you when you come out, you’re never going to give me consent to publish it, because you believe that you should own your image and you don’t believe that you’re trampling on the first amendment. But the entire point of the law recognizing photography as protected so that I don’t have to get your permission is specifically so that I can do that.
It is a matter of interpretation as are most things you post. And it is generally decided on a case by case basis. There is no provision in the constitution that EXPLICITLY protects any particular form of expression, what it protects is your right to free expression.
Key word being expression.
What you are arguing is that I am somehow against free expression via photography. What I am suggesting is that giving an individual jurisdiction over their own likeness would not necessarily hinder such expression. It COULD hinder such expression, but would not necessarily need to do so.
Nowhere did I say you could not take whatever photographs you like in a public space. What I suggested was a more clearly defined process for doing so when it involved taking a persons image without their knowledge. And while it may suit your argument to say “It’s that most people here (and the federal court system) disagree with your logic.” that is most certainly not the case as what people can and can’t do varies based on circumstance AND intention for said photographs, with an apparent plethora of legal cases to support that assessment.
In your example above, I would not need to argue against the first amendment as you would be subject to libel laws, seeing as I neither hate free expression, or use the first amendment as a basis for doing so. And should you just take that picture for personal use, that would not be protected as free speech, since first amendment protection appears to require an intent to use said image to communicate something, to someone else. Easily remedied by you stating such intent, but required by law to be considered free speech nonetheless.
Now if you were doing a piece on unbridled awesomeness in the modern world, I would have no recourse to stop you, as I could not contend the fact that I freaking rule…
I am not quite sure what you are arguing. We agree taking pictures of women’s privates without their knowledge is bad. We agree that laws need to be written in a more concise and clear manner. And we agree that the First Amendment is and important protection for the free expression of ideas. I think the laws could use some tweaking. Not sure why that gets your panties(or boxers) all up in a bunch.
http://www.firstamendmentcenter.org/photography-the-first-amendment
What law says that photography is a right? You and Mav seem to be under the mistaken impression that any form of expression is explicitly cited in the constitution. You are mistaken. You also seem to be unclear on what the words “open to interpretation mean”, considering I cited an article referencing multiple examples of how the first amendment was applied to both photography and videography. Just taking a picture does not give you the right to do so. Suggesting that to be the case is absurd.
You are also mistaken in assuming that “art” is automatically protected by the First Amendment. Again, multiple examples, actual case law, cited in reference article.
As an “art piece”, with no editorial attached, Mav’s picture would not necessarily fall under “fair comment and criticism”, while it would potentially cause harm. I am not saying it is a slam dunk(I would have to prove harm), but not quite as easily dismissed as you would suggest.
The more I interact with people like you, the more I realize how screwed up the world has become. The First Amendment as well as the constitution state very specific things, written at a particular time, for very particular reasons. The LIBERAL interpretation of those things(automatically assuming a law includes something they deem reasonable) is just that, and interpretation. Hence the multitude of court cases over the years, going in one direction or another for the sake of clarification. What arrogance you have to suggest that your interpretation represents anything more. It is part of our rights to challenge such things, so I could very well stop you from taking my picture and all I would need to do so would be to argue my case convincingly to whomever was sitting on the bench.
In short. You have not made a true counterpoint, other than to try and tell me how off base my initial statements actually were. Again, a common issue when dealing with people like you. I mean it is typical of all sorts of “issives” and people whose group ends with an “ist”, but I don’t really know your politics so I will leave it at that.
I have suggested that laws could be crafted to serve both needs. Rather than actually respond to that assessment, you decided it would be better to try and educate me on something you clearly don’t quite understand, the constitution. Oh, I have no doubt you know about your interpretation of the constitution, but you are not open to debate on a document that has been in constant debate for the last 200+ years.
Concerns were raised regarding artistic expression, I addressed them. Concerns were raised about public gatherings, also addressed. In fact pretty much everything that was questioned, was respectfully addressed as a clear statement of my opinion. Yet somehow you know better. Dmitri, I don’t know you, don’t really care to, but you are sorely mistaken if you believe your position on this subject to be more tenable than mine.
Troll… ha! That’s a good one.
Dmitri, why is it you keep harping on a non issue? Not once did I suggest eliminating a person’s right to take pictures. I cited those cases as an example of what “open to interpretation” means, and to make it clear that what you are and are not allowed to do is largely dictated by circumstance and who is presiding over the case. The First Amendment is not a blanket that simply protects you. If you took a picture of me and I could prove that I was in a private space, even though it appeared to be public, there would be a debate, one of us would have to prove our position. That was all I had suggested. In some of the cases cited, the people involved clearly felt they were on public property, thus felt the right to do what they did, and when it was conceded that they assumption was false, they lost their case.
My suggestion, you know, way back at the top, for having photographers either ask for consent afterwards, or clearly post where they were filming, would eliminate any question. That is all. No one suggested surpressing art, the press, otherwise.
So I will ask you again, what exactly are you trying to prove? That you have some greater insight into how the constitution can be interpreted? Society in general? What? I can not agree with you or Chris any more than I do while still offering a suggesting for more detailed laws. Seriously, WTF is wrong with you guys?
Vic: very simply. We don’t like your particular suggestion for more detailed laws. It does nothing to to directly help the case at hand of the upskirt photos. All it serves to do is create a situation that gives you a right that no one else wants you to have. That is our problem with what you’re saying.
Fair enough, but please don’t suggest that A.) I don’t know what I am talking about because I disagree, or B.) I am suggesting something that I am not(eliminating freedom). We have had those types of discussions, this however, was not one of them.
The whole point of our legal system is the ability to challenge and improve the laws that govern our nation. Our system encourages variable interpretations and ultimately debate of those laws. That is how it was designed to work. The whole “majority rule” nonsense that we have fallen into, may be the norm, but it is not what was intended.
Telling me or anyone else that a law is “correct” just because that happens to be your opinion, ignores the whole point of having a representative government. I would suggest that if you are not willing to discuss alternatives that do not align with your views, then there is really no point in having a discussion at all.
Here is my final point. Privacy is an issue. You don’t have to agree with me, you don’t have to care. It is big business, it is discussed around the world, it is part of our everyday lives. Ignoring that for the sake of “art”, is something that will need to be addressed in the years to come. And the only way to do that is through clearly defined parameters. You may not like more detailed laws, but they very well may be required as we move forward to protect both the individual and the artist.
Well, you are doing those things though. I gave you a simple answer to the question because you asked for one. But you ARE challenging freedom because you don’t understand the law. That’s the really upsetting thing. Otherwise none of us would be bothering with you.
1 week later and 104 comments later and… tires are spinning.
If that makes you feel better about this discussion, then fine.
yep
I comment on your posts to challenge your views, not to agree with them, and I don’t do so just to be a contrarian. I do so to engage in discussion, understanding that there does not need to be a “right” or a “wrong”. Open dialogue, even heated, has its merits IMO.
Sorry. Yep was to Link. Vic just happened to post between us.
The answer to Vic is what Dmitri said a while ago. You seem to think that the law is ambiguous and under interpretation. It’s not. You’ve been given several links that show that. You wanting to change it is fine.
And I don’t mind you arguing. I actually like the opposition. I have been asked several times after your arguments “why I don’t just block you?” And my answer is always exactly what you just said. I think your points have merit, even when you are explicitly wrong. And you’re not always. Sometimes it is interpretation. Just not here. Even when you are wrong, your POV is always welcome because it’s usually interesting and makes for good. Otherwise I honestly wouldn’t bother with you.
It’s never my intention to change your mind. I don’t need to. And frankly I don’t even care to. The fact that you don’t agree is fine. It’s your right. The only annoying part is that when you feel yourself “losing” for lack of a better term, you have a tendency to turn to the insinuation that everyone else is an idiot and if we truly understood the ramifications of X (in this case Internet security) we would clearly turn to your POV. I assure you that both Dmitri and I are fully aware of the ramifications of changes in Internet security over the last couple of decades.
“You seem to think that the law is ambiguous and under interpretation.”
The First Amendment? Interpretation of the constitution is continuously being challenged, to imply otherwise seems odd.
When we debate something that has a definitive answer, then you can talk to me about being “wrong”. We have very different ideology, our convictions, in general, neither prove nor disprove the opposing point of view. I have never once felt as if I were “losing”, as I am no more impressed with the qualifications of you or anyone else who engages in these posts than you are with mine in matters of opinion. We are expressing ideas, about topics with no singular answer. So while I get frustrated when people try to claim a topic to have only one possible outcome, I don’t lose any sleep over being a lone voice of dissent.
If we were debating quantum physics, sure I would defer to the “experts”, but when we are talking about society and the laws that govern it, again, the whole point of our system is for there to be multiple points of view. In short, there is rarely just a singular truth.
I was going to send this as a PM as I said I was done, but what the heck, might as well go out with a sputter…
GFDI, if I see one more post on this thread, I’m going to join in. With 50% of your recommended daily dose of belligerence, and bonus antagonism!
Well I’m not reading 100 comments, but I think an argument could be made, depending on the dimensions of the skirt, that the area inside the skirt is private and not a public place. I don’t know how the law here (let alone Texas) would treat a situation as a car in a public place, or a window in your private house in view of the public and I don’t care enough to look it up.
Even if you could make that argument, the fact is she was wearing underwear, so someone isn’t shooting something considered lewd under normal circumstances (i.e. she could not worn the skirt at all and that would have been legal), so you might only get an invasion of privacy based solely on the concept of that area being a private place.
Still, I won’t comment on whether or not the interpretation of that law is good or bad or how it reflects our culture, don’t feel like getting into that much of an argument.