Ethics of "found" images...

[Ian C]

Here’s a brief survey of photography laws in the UK, US, and a few other countries.

http://en.wikipedia.org/wiki/Photography_and_the_law

 

[cepwin]

Thank for for the additional discussion. The wiki was also helpful/clear. Since these images are clearly of the "safe for work" variety (family outing) I tend to agree with Felinik....if my some stroke of luck the people involved saw it I think they would likely be pleasantly surprised. I'm trying to think how I'd feel if an image of my Brother and I out with one of our Grandma's growing up just popped up on-line .... I'd probably think it was cool and want to forward it to my Folks. Had they been something that would be of great embarrassment to those involved (such as the case AgX described) it would be another story entirely.

 

[batwister]

As an experiment in 'six degrees of separation', it would be very interesting to see if the subjects find the pictures on Facebook. It's a novel way of connecting with strangers, that's for sure.
But the question you have to ask yourself is "what is my motivation?" Some people just don't understand the explanation "because it's interesting". Some photographers learn this today, unfortunately, by photographing in public spaces and getting arrested.

So is this a humanitarian exercise or just naive curiosity? If the latter, you'll probably find yourself in uncomfortable territory somewhere down the line. Times we live in unfortunately. If you have some kind of quasi-conceptual drive, you could present them together with (and importantly) other found images. Then you've created a context for the images to exist and a way to justify, creatively, as author, your presentation of the pictures. Lots of photographers experiment in appropriating found images, some quite risqué, but they only get away with it as artists. It could get into 'One Hour Photo' territory if you don't have a creative excuse!

There are only two types of photographers today, in the eyes of others - sex offenders and artists.

 

[cepwin]

Wow ... Deep thinking...I Just thought it would be good if the people could be reunited with their memories although it would be interesting to here the story behind them.

In the last sentence it sounds like you're referring to risqué images. If they were risqué I wouldn't want them in my house let alone scan them into my computer. (although I understand there are legitimate photographers working in "artistic nudes" and have been throughout.)

 

[pdeeh]

Unfortunately, I suspect batwister may be referring to the sort of attitudes that mean I keep my cameras out of sight when there are children of strangers around ... but that discussion is off at a tangent from the "found images" discussion ...

 

[batwister]

Yes, sorry, just an example of the extremity of people's sensitivity about the use of their image (likeness) today. If cepwin comes across as sincere in wanting to reconnect these people with their past, it shouldn't be a problem.

 

[SpunkySpine]

Interesting thread

Short and swee...

It is my understanding that whether or not you have someone pose for you, you should not post or otherwise use their image for profit without a signed release.

Note: Profit can mean money, notoriety, fame or any gain by you.

If however you were to take a photo of a crowd or otherwise unrecognizable people (you have not zeroed in on any individual or assembly) you can go ahead and sell the image. Now along comes JQ Public and says, "I did not give you permission to sell my picture", you are still OK since there is no way to prove you sold the photo just to sell JQ's image.

If you were to take a picture of a group of bowlers recognizable as the "Jets Bowling Team" for example, you do need a signed release.

I believe this comes to play when you publish, but not for profit, photos of unknown subjects found on film in a camera you purchased.

 

[Steve Smith]

There are only two types of photographers today, in the eyes of others - sex offenders and artists.

Three... you missed out terrorists!


Steve.

 

[batwister]

They should give that woman in the Simpsons a new catchphrase; "won't someone PLEASE launch a public inquiry!". Incidentally, I had a dream about horses last night. Is this the first sign?

 

[paul_c5x4]

I had a dream about horses last night. Is this the first sign?

Neigh... It just means you've been eating too many cheap ready-meals & burgers.

 

[Felinik]

Neigh... It just means you've been eating too many cheap ready-meals & burgers.

Lasagna....

 

[Diapositivo]

[OFF TOPIC]

Although I think producers should indicate exactly what kind of meat is contained in their lasagne/burgers etc. I would like to spend a word in favour of horse meat.

In my country, horse meat is the typical thing that a doctor would prescribe to a weak child. When I was a child (that was not yesterday) you could easily find horse meat at butchers.

During the "mad cow" scare horse meat reappeared in restaurant menus. I remember a horse steak during a lunch break. Delicious, if you like the "sweety" tone.

Once upon a time you could still find "coppiette", a kind of hot dried sausage which was typically made with horse or donkey meat in a certain percentage (not too high because it would become too sweet I guess). Mortadella (probably known as Bologna somewhere) was also, once upon a time, made in part with horse or donkey meat.

Nowadays horse meat became too expensive, so you don't find it commonly any more. Mortadella and coppiette are only to be found of pork. That's a loss, I say.

http://civesromanussum.blogspot.it/2008/10/cucina-romana-le-coppiette.html

[/OFF TOPIC]

 

[Steve Smith]

Although I think producers should indicate exactly what kind of meat is contained in their lasagne/burgers etc. I would like to spend a word in favour of horse meat.

In my country, horse meat is the typical thing that a doctor would prescribe to a weak child. When I was a child (that was not yesterday) you could easily find horse meat at butchers.

I personally don't eat any meat. However, if you are going to eat pigs, sheep and cows, I don't see how a horse is any different.

The main problem with the horse meat in supposed beef products is just the fact that it shouldn't be there and is not included on the ingredients.

It's quite common to have strange ingredients in things. My son bought some pork sauasages from a supermarket a few years ago which contained 75% chicken. Whilst this also does not sound right for something which is supposed to be pork, it was listed on the ingredients label.


Steve.

 

[David Lyga]

AndreasT: I think that banning is not what we are trying to impart here.

Instead, common sense and a personal respect for another person's privacy is mandated through the concept of consideration for others. You know, I could never understand why there has to be a formal 'law' in order for people to act responsibly. It is almost as if such people who 'need' such law were brought up by excessively permissive parents and are only now, in life, coming to the realization that there really are 'rules' out there that should be followed which are not strictly legislated under formal jurisprudence. Why is that concept so alien? - David Lyga

 

[BrianShaw]

You know, I could never understand why there has to be a formal 'law' in order for people to act responsibly.

There shouldn't need to be... but that has been the situation since the days when we were cavemen. And please don't blame "permissive parents"; that's a real cop-out.

 

[David Lyga]

Again, I DO, indeed, blame parents who are too afraid of not being revered as the child's 'friend'. (They often end up being reviled when the child 'matures'.)

Discipline is not a dirty word. Responsible behavior starts young. Although I will state, without equivocation, that, today, parenting is not as unilateral as it once was: too many outside influences. - David Lyga

 

[Benoît99]

In Canada, some photography restrictions are enacted under provincial laws or municipal by-laws. In the case of Québec, generally speaking, commercial, editorial and artistic are the same thing. It doesn't matter if a photo is published in a newspaper or hung in a gallery and it doesn't matter whether or not the photographer uses the image for monetary profit.

It is legal to photograph people who are in a public place without their consent. It is legal to publish their photo without obtaining their consent if the photo covers a newsworthy event. Otherwise,or if the subject was photographed in a private place, the subject's permission is required for any kind of public display.

It is NOT legal to publish (in the media, a gallery display, a personal blog), without consent, the image of a recognizable person who is the main subject of the image unless the image was taken to record a newsworthy event.

Example: You take a photo of a clown who is entertaining children in a public park. The clown is the obvious main subject of the photo but a group of children who are being amused is visible in the photo. You can publish or display (commercially, artistically or editorally) the group photo without the consent of the clown or the children (i. e., their parent). If you crop the photo so that only the clown is recognizable, no consent is required because he was performing publicly and the event is " newsworthy" and he wanted to be seen. Since the children are incidental to the photo, you CANNOT publish (or display in a gallery) without consent, a cropped photo that is essentially a portrait of one or several of them.

A few years ago, the Supreme Court of Canada handed down an important decision in this area. A photographer was taking pictures of a public demonstration. He noticed a young women sitting in a nearby doorway. His portrait of the woman was later published in a magazine. She sued and won because she was not depicted as the main subject of a newsworthy event or even as a recognizable onlooker of that event but as a private individual present in or observable from a public place.

http://canlii.ca/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html

In Québec, there is a right to privacy. The Supreme Court said, "The right to one’s image is an element of the right to privacy under s. 5 of the Quebec Charter of Human Rights and Freedoms. If the purpose of the right to privacy is to protect a sphere of individual autonomy, it must include the ability to control the use made of one’s image. There is an infringement of a person’s right to his or her image and, therefore, fault as soon as the image is published without consent and enables the person to be identified." However, the Court recognized an exception for photographs of "newsworthy events" that covers the principal subjects and the incidental subjects (if the images of the latter are in the context of the newsworthy event.

There are NO exceptions for photos taken of people who are in a private place.

 

[Diapositivo]

Can we see the picture?

The sentence is not clear to me.
The sentence seems to be based on a prejudiced caused to a minor (17 years old at the time of the facts). It is not clear how relevant is the fact that the person portrayed is a minor of age.
The sentence seems to be based, also, on the fact that the subject portrayed was easily contactable.
Finally, there seem to be a "prejudice" arising from the publication. It seems to me that a "moral prejudice" was recognised here, which is possibly due to the nature of the image.

The sentence reports the dissenting judge motivating in a quite different way from the majority of the jury, which means another jury might well decide in a different way.

The "balancing" between right of image and freedom of expression seems to be demanded to the judge, the law doesn't make a "clear cut" case and each judge might decide differently I suppose.

The entire sentence is not clear to me as the respondent (the publisher, who won in the first degree of judgement, which was appealed) seems to sustain the case that there was a prejudice.
EDIT: well no. Aubry, the girl, won the first sentence. The publisher appealed. The respondent is Aubry.


<<
As for the causal connection between the publication of the photograph and the prejudice, there clearly is one.

[...]
Here, the dissemination of the respondent’s image constituted a violation of her privacy and of her right to her image. In the abstract, to appropriate another person’s image without his or her consent to include it in a publication constitutes a fault. However, in light of the first paragraph of s. 9.1 of the Quebec Charter, the respondent’s right to privacy must be interpreted and harmonized in a manner consistent with the appellants’ freedom of expression and the public’s right to information, which is guaranteed by s. 44 of the Quebec Charter. In matters involving the right to one’s image, this harmonizing role is played by the concept of the public interest. The content of this concept depends on the nature of the information conveyed by the image and on the situation of the parties involved. On the other hand, it must be balanced against the reasonable expectation of privacy of the person whose image is reproduced and, generally, against the severity of the infringement of the parties’ rights. The concept of public interest limited to the right to receive “socially useful information” is too narrow. In this case, the public interest does not justify the appellants’ fault. The photographer could easily have obtained the respondent’s consent, but did not do so. As for causality, it is not at issue. Regarding prejudice, the Quebec law of civil liability requires proof of prejudice resulting from the fault. The respondent’s simple statement that her classmates laughed at her does not in itself constitute sufficient evidence of prejudice, since it does not provide any information about how she felt. Nor is there any evidence that the respondent has become a “well-known figure” or that the instant proceedings and the media coverage they received have increased her notoriety.
>>

 

[MattKing]

The legal decision is a decision of the Supreme Court of Canada. It is the result of a trial decision and then two levels of Appellate review.

At appeal, there are no witnesses or new evidence - just arguments about principles and law and how they interact with the facts of the case.

The plaintiff sued for $10,000.00 plus court costs. She won $2,000.00 plus court costs. The court costs are determined by a formula, and would amount to tens of thousands or more. They would, however amount to less than the normal amount of her associated legal bills.

Very, very few cases go this far. With some exceptions, there is no right of appeal to the Supreme Court of Canada - they generally only accept appeals for hearing if they are considered to be of lasting importance, and the issue involved isn't already the subject of well settled law.

To understand the case, you need to understand that Quebec's law in matters of this nature is originally based on the Civil Code. It has been modified by both statute and case law. Quebec is the only jurisdiction in Canada that has law originating from the Civil Code.

You also need to know that the "rights" which were claimed to be infringed were rights created or codified by a Quebec statute. That statute is only in force in Quebec - not the rest of Canada.

There were seven justices sitting on the panel. The court only has nine justices (the most senior and important judges in our country), and it is quite rare to have a seven justice panel decide a case. Three justices is more common. Clearly the court considered the issues involved to be important, because that is one of the criteria used when determining the panel.

Five of the justices agreed in the result.

Two of the justices disagreed (dissented), but for different reasons.

The part of the decision that forms the "law" on this matter is the majority decision. The dissent does not form the law, but dissenting opinions are not necessarily irrelevant. In future circumstances, with slightly different facts involved, the analysis in a dissenting opinion may help advance the law when those different facts are considered.

There are no juries involved in this case. In Canada we do use juries, but not nearly as much as our US neighbours. It looks to me that the original trial was before a judge alone.

The majority decision is a reasoned analysis of the law, and a fairly clear determination of it. It does seem clear that it isn't the photography that causes the problem, but rather the publishing of it.

It doesn't apply specifically in the rest of Canada, but the rationale might help inform a decision on similar cases arising in the other provinces - provided that there be found a similar right to privacy in those provinces.

 

[Diapositivo]

What isn't clear to me is whether the trial was decided based on the "prejudice" suffered by the plaintiff, or if unauthorized publication in itself is deemed to constitute a prejudice.

Considering that the case had three degrees of judgement, I would infer that, before this judgement, the question was opened (I mean, the judge had to balance the rights of the various parties involved).

From what you write I infer that in Québec the stare decisis principle applies, and a decided case bounds the next judge if the case is "the same".

The question arising is: what new principle has this sentence introduced, if any, in the juridical body of norms?

If the new principle is that any unauthorized publication, for the mere fact of being unauthorized, is a violation of the right of image, then this is a sentence of great importance for the publishing industry of Québec.

If the new principle is that an unauthorized publication is a violation of the right of image if the portrayed person suffers a prejudice, and if the portrayed person could have been contacted by the publisher but was not, and if the image did not fulfil any special purpose of public interest, then I think the sentence is of little practical importance, because any new judgement will have to deal, on a case by case basis, with the assessment of the eventual prejudice and the possibility of contact of the portrayed person on the one hand, and the relevancy for the intended purpose and the basic freedom of expression on the other hand. The "balancing" will have to be made in each case.

 

[mark]

If you are posting the images to try and return them then that is a noble cause. If you are posting it just to say "hey look at these old photos I found" then I would ask what would be the point? I personally would pitch them and keep the rolls.

 

[MattKing]

What isn't clear to me is whether the trial was decided based on the "prejudice" suffered by the plaintiff, or if unauthorized publication in itself is deemed to constitute a prejudice.

Considering that the case had three degrees of judgement, I would infer that, before this judgement, the question was opened (I mean, the judge had to balance the rights of the various parties involved).

From what you write I infer that in Québec the stare decisis principle applies, and a decided case bounds the next judge if the case is "the same".

The question arising is: what new principle has this sentence introduced, if any, in the juridical body of norms?

If the new principle is that any unauthorized publication, for the mere fact of being unauthorized, is a violation of the right of image, then this is a sentence of great importance for the publishing industry of Québec.

If the new principle is that an unauthorized publication is a violation of the right of image if the portrayed person suffers a prejudice, and if the portrayed person could have been contacted by the publisher but was not, and if the image did not fulfil any special purpose of public interest, then I think the sentence is of little practical importance, because any new judgement will have to deal, on a case by case basis, with the assessment of the eventual prejudice and the possibility of contact of the portrayed person on the one hand, and the relevancy for the intended purpose and the basic freedom of expression on the other hand. The "balancing" will have to be made in each case.

The case is a private law case - the plaintiff was seeking compensation for damages suffered as a result of a breach of her legal rights. Those rights happen to be rights that are either created by or confirmed by a statute.

To give a remedy, the court had to find that compensable damages were incurred by the plaintiff. Probably most importantly, the court found that public embarrassment is sufficient to found a claim for compensable damages. And the fact that the plaintiff was singled out as the subject of a photo (I believe on the cover) in the magazine is crucial to the finding, because it moved the publication of the photo out of the public interest exceptions to the "right of privacy" rules.

Yes, Quebec uses common law approaches to deciding civil law issues - the stare decisis principle applies.

And the problem for commercial publications is that they have no way of knowing whether someone in a photo will be prejudiced by publication of their photo - for some there might be considerable prejudice involved.

 

[Diapositivo]

Probably most importantly, the court found that public embarrassment is sufficient to found a claim for compensable damages. And the fact that the plaintiff was singled out as the subject of a photo (I believe on the cover) in the magazine is crucial to the finding, because it moved the publication of the photo out of the public interest exceptions to the "right of privacy" rules.

(emphasis mine)

What I mean is: if the picture is not embarrassing (or not judged to be embarrassing) than there is no liability, is it? So the matter is basically a matter of defamation (one must prove some damage to his own reputation, respectability etc.) than of Right-of-image (which would apply "automatically", regardless of the embarrassment or of any valuation by the judge).

This makes a huge difference for the publishers, as they know that they can publish pictures of people taken in public provided there is no embarrassment inflicted to the portrayed person.

 

[Benoît99]

Diapositivo,

If you read French, go to the following page, written by a photo-journalist and which gives a rather detailed summary of the principles of law that apply to photographers in Québec with respect to the privacy rights of people who are photographed.
http://www.francisvachon.com/blog/le-droit-a-l’image-au-quebec/

Ciao.

 

[MattKing]

Thanks Benoît99 for posting the link. As usual, I wish I could read and understand much more French than I do.