Private Lives in Public Places (2)

[Over the years I have returned numerous times to the issue of what we loosely call “street photography” and its intersection with the rights of the subjects thereof, along with the broader questions connected to the rights of the subjects of photographs.

Some of those those ruminations have already appeared online, at this blog and elsewhere. Others have appeared only in print. As I hope these different commentaries show, I have a nuanced response to this complex set of questions. Click here for an index page with links to those already available at the blog.

This one appeared first in the Journal of Mass Media Ethics, Vol. 2, no. 2, March 1987. I republished it in my 1998 collection of essays, Depth of Field. Part 2 appears below; click here for Part 1.— A.D.C.]

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Private Lives in Public Places:

The Ethics of Street Photography (2)

(continued) … My empathy with [Clarence] Arrington’s outrage has its roots in my personal history as well as in my critical understandings. Let me give just two examples, one of which concerns a photograph that was made, the other a photograph that wasn’t.

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My mother, who gave me my first box camera, retired to a ranch she bought in northern California, where my son (who’s now twenty-five) and I often spent a good part of our summer vacations. There are fields and hills, cattle and peacocks, pygmy goats and horses, woods and swimming spots. It was akin to having a summer camp or dude ranch at our personal disposal — quite a pleasure, and quite a privilege.

Some years ago, during the course of a riding lesson, the saddle on the horse my son had mounted slid to the side, not having been tightly enough cinched. My son fell, breaking his arm near the elbow. Present at the time was a freelance photographer, a close friend of ours, who was thoroughly helpful during this emergency, yet also — as much out of habit as any other impulse — took photographs of the ensuing events when time and discretion permitted. One of these showed my son just prior to going into the operating room for anesthesia, bone-setting, and the application of the cast. Dirty, tear-stained, in great pain, slumped in a wheelchair with his arm in a makeshift sling, he appeared about as helpless, woebegone, and pathetic as an eleven-year-old boy can look.

This image, on the contact sheets, made its way to my friend’s stock agency, which requested a print for its files. Then, about a year later, the agency asked my friend to inquire if I would consent to a particular usage of it. Seems a textbook publisher wanted it for a volume on child abuse. Would my son or I object?

We certainly would — and did, on several grounds. The most immediate was that publication of a recognizable picture of my son identified as a battered child could have serious repercussions in our personal life and my professional sphere. Beyond that, however, there was a broader concern: such usage would be a willful falsehood, a deceitful recontexualization.

All of those involved (my friend, the agency representative, my son and myself) knew very well that on the occasion depicted in that photograph my son was a “victim” of nothing more malevolent than a combination of accident and carelessness — certainly not child abuse. Yet the agency was, in effect, asking me to permit this image to be used as visual evidence of an entirely different nature, so that the agency (and my friend) could make some money.

Ultimately, what upset me most was this latter issue — that, and a remarkable moral opacity on the part of the agency spokesperson, who made it very clear that they were more than willing to abide by my wishes in this particular case but were incapable of grasping the principle at stake and not especially interested in pursuing it. Consequently, to protect my son and myself, I required of the agency and my friend that in the future I would be consulted beforehand on any usage of images of us.

Thinking about it later, I realized that it was only because the agency knew of the friendship between the photographer, my son and myself that they’d bothered to check with us in the first place. Had we not been traceable, and available for consultation, I was convinced the requested usage would have been permitted by both photographer and agency, with no compunction, without even any second thoughts.

How many of the images we see in the mass media, in textbooks, and in other vehicles, are such spurious, falsified “factoids?” Does anyone in the field consider the consequences to the subjects of such images generated by such misuse? And, on a larger scale, the consequences to the citizenry when its informational network is thus compromised and corrupted?

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Now for the photograph that wasn’t made.

The night it wasn’t made was several years ago. I’d had dinner in Manhattan with a photographer who was staying at my house; I was driving us back to Staten Island, where I live, across the Brooklyn Bridge. It had rained earlier in the evening. The city looked clean and bright, the air sparkled, the bridge gleamed and glistened. Traffic was crawling, with all three lanes merging slowly into the far left lane for no apparent reason.

Just over the curve of the bridge’s center, the reason came into view. There, in the middle of the roadway, was a well-dressed, middle-aged woman sitting in a wheelchair, facing traffic. Behind her was a taxicab, empty, all doors open, emergency lights flashing. The scenario virtually wrote itself: the cab developing engine trouble or running out of gas, the driver heading off for assistance, the decision made to put the immobile passenger in full view to slow traffic down and prevent the rear-ending of the cab with her in it.

As we drew closer, foot by foot, I could see the woman in the wheelchair more clearly. She was alert, neatly coiffed and made up, as composed as possible under the circumstances. She also looked terribly fragile and vulnerable, alone on that metal roadway, surrounded by cars and more cars, never sure that some airhead wasn’t racing towards her from the entrance to the bridge. I tried to imagine myself in her situation; it felt awful.

My companion rolled down the window on the passenger side, instructing me to slow down as we drew abreast of the scene. Watching the camera being checked and set, I suddenly saw in rapid succession five or six different versions of the potential image ahead of us, in the styles of several photographers whose work I knew well, including my companion’s. They were all strong pictures. It would have been hard to miss; you couldn’t have asked for a more resonant symbol of utter, abject helplessness and, at the same time, grace under pressure.

We began to pull closer to the woman. The photographer braced, ready to shoot, when the damnedest thing happened. Instead of slowing down, I instinctively put my foot on the gas and moved us out of range as quickly as I could, despite my companion’s objections. There was, of course, no turning back; the scenario was behind us, the images gone.

I was surprised at myself — I do not intervene in other people’s picture-making decisions. The photographer was furious. What business of it was mine? As we argued, and I thought about it, I realized that had my companion been at the wheel and slowed down to photograph, I would not have attempted to prevent it. In effect, as driver of the car I’d been asked to become complicitous in the making of that image, and had refused.

The reason for that refusal, I finally understood, was that in addition to all the pictures of that woman that I’d imagined, I’d imagined another image as well — an image of the world as that woman in the wheelchair would have seen it at that moment. There I sat, high on a bridge over the East River, a vast city sprawling away on all sides, myself crippled and unable to move. At the mercy of strangers and the world, in a situation totally beyond my control, I had to wait for what seemed like forever as car after car — hundreds of them — moved slowly past me, the faces in each one staring at me as if at some freakish spectacle. It was a nightmare, and all I had to interpose between myself and it were my courage and my poise. All I wanted was for people to pay me as little attention as possible under the circumstances, and for rescue to come soon. The last thing I needed — the thing that could shatter the delicate balance in which I held myself — was to suddenly find my picture being taken under such difficult and embarrassing circumstances by someone with a camera who’d decided that my plight was news, or art, or merely snapshot material.

Because, in that dreadful hour, when I had to entrust myself entirely to others, I would not want to know that among those others there were some who would take advantage of my helplessness by converting me into a symbol of it, to hang on gallery walls or illustrate the pages of publications or study for their own amusement. I would not want to think that there were those for whom my condition and plight meant only that I was public property, because then I might start to doubt that help would really come, and I could not afford to do that.

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So I decided, for myself, not to be the shadowy figure behind the wheel in the image that woman would have registered in her mind’s eye when our car rolled slowly past her with my companion busily clicking away. I’ve never regretted that decision. Though I don’t think I was forgiven, or my motives ever understood, eventually my companion’s anger at me abated. The non-existence of that photograph — for which I hold myself absolutely responsible — does not seem to have had any negative consequences.

Though the litigation I discussed earlier was over an image made in far less dramatic and extreme circumstances, the principle involved is basically the same. The assumption that you waive your rights to control of your own image and declare yourself to be free camera fodder by stepping out of your front door is an arrogance on the part of photographers; it has no clear, absolute and inarguable legal basis.^[1] The excesses committed in its name are legion, and extreme.^[2] To whatever extent the Arrington-Gorgoni case opened up this vital matter to public debate and legislative consideration on a national scale, Clarence Arrington did all of us (including photographers) a service for which the only proper repayment would have been one we’ll never be able to make — the restoration of his right to a private life in public places. He’ll always be the man who found himself on the cover of the New York Times Magazine, and sued.^[3]

(Part 1 I 2)

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Notes:

^[1] See photography historian Bill Jay’s fascinating essays, cited below, for a discussion of the early response — public, journalistic, and legislative — to the introduction of photographic activity into European and British public life during the middle and late 1800s: “The Photographer as Aggressor,” in Featherstone, David, ed., Observations: Essays on Documentary Photography (Carmel, CA: Friends of Photography, 1984), pp. 7-24; and “The Amateur Photographic Pest,” Daytona Beach Community College Newsletter, Spring/Summer 1986, pp. 16-18. See also Mensel, Robert E., “‘Kodakers Lying in Wait’: Amateur Photography and the Right to Privacy in New York, 1885-1915,” American Quarterly, Vol. 43, issue 1, March 1991, pp. 24-45. According to Mensel, “The evidence … indicates that amateur photographers played an important role in provoking the outrage among editorial commentators, judges and legislators which eventually helped lead to the recognition of the right of privacy in New York.” Ibid., p. 25. Ironically, he cites a New York Times editorial from August 23, 1902, in support of laws safeguarding the public from photographers: “If there be … now no law to cover these savage and horrible practices … then the decent people will say that it is high time that there were such a law.”

^[2] In consideration of that fact, but taking also into into account the concerns of photographers, I proposed in 1989 the creation of “photo-free” and “auto-release” zones in major urban centers, the former to be spaces where where all photography was prohibited, the latter spaces in which no permission would be needed to photograph. See my contribution to “Forum: Back to the Future: Photography in the 80s and 90s”/”Zuruck in die Zukunft: Fotografie in den 80er und 90er Jahren,” European Photography, No. 40, Vol. 10, no. 4, October-December 1989, pp. 16-18.

^[3] The drafting of this essay was proposed by the reconsideration of a much briefer, much earlier meditation on the same subject, “Street Photography: A Question of Direction” (The New York Photographer, Issue Two, 1971). A few passages from that text have been incorporated into this one. In approximately its present form, this essay was first published as “Private Lives, Public Places: Street Photography Ethics,” Journal of Mass Media Ethics, Vol. 2, no. 2, Spring/Summer 1987, pp. 60-66.

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