What gives, Magnum?

[awty]

Exactly!

And both should be considered equally no matter where you are in the world. That last part is important. Amongst the ethical problems Magnum has recently faced there is the case of Iranian photographer Newsha Tavakolian, who photographed teenage victims of rape in the Democratic Republic of the Congo, photos in which these victims were all identifiable. Both Magnum and MSF were pushed to review their practice after many complaints.

Magnum photographer defends images of teenage gang rape victim after humanitarian organisation removes them from website

After controversy on social media surrounding Newsha Tavakolian’s photographs of East Congo, Médecins Sans Frontières announces internal review

www.theartnewspaper.com

So what he photographed was not correct? Why would you censor someone for bring to attention some deplorable acts?
People need to be shocked before they take note.

 

[Alex Benjamin]

So what he photographed was not correct? Why would you censor someone for bring to attention some deplorable acts?
People need to be shocked before they take note.

It was she, not he.

The article (did you read it?) makes it clear that the problem isn't documenting a tragedy. That's what photojournalists do. Where there is a problem is in the fact that the girl was a teenager and was fully identifiable in the photos. In other words, not only must she live with the trauma of what happened to her, but also with the fact that the image of it will forever be available to anyone on the Web (side note, similar photos by serious photojournalists documenting rape of teenage girls in Asia have found their way on to porn websites). The fact that she is a teenager, and in a country marred by poverty and lack of basic education, makes the question of consent very ambiguous—i.e., the question of whether or not she really understood all the implications of her "consent" very murky. All this is well developed in the article.

I do think the photographer here was in good faith and not trying to "photographically exploit" a tragedy. That said, what the story brings out is that to solely focus on the question of consent in such cases is a mistake. More often than not, consent is a legal matter, not an ethical one.

So it's not a question of censorship: every story needs to be told. It's about the implications of how you are telling the story for the people about whom you are telling it. They should be the point, not the needs, desire, esthetics, etc., of the photographer.

 

[Alex Benjamin]

Should add that I greatly admire the works of Newsha Tavakolian — https://www.newshatavakolian.com/

As part of the Magnum agency, I think it's Magnum's role to give her the guidelines that separates the ethical from the unethical when on assignment.

 

[Paul Howell]

I'm sure it is imprudent.
And against my principles as well, if I did it without at least engaging with the subject and confirming their agreement.
I'm not sure that it is always unethical, but ethical issues should be addressed.
But I can't think of any reason it would be illegal, although in places like Germany or Quebec where there are special, more restrictive statutes that deal with privacy rights, claims for damages might arise.
As for the model release, they tend to be required by publishers, because they protect publishers from potential litigation, but their main advantage is that they confirm consent.

Taking a picture in a public place is not illegal, selling the image of a person without permission is illegal. If the event or person is news worthy, then it can be sold without permission.

 

[Alex Benjamin]

Taking a picture in a public place is not illegal, selling the image of a person without permission is illegal. If the event or person is news worthy, then it can be sold without permission.

In Quebec, it's not the selling that is illegal, it's the publishing. The Aubry judgement dates from 1998, so not clear if posting on the web would be considered publishing today.

Also, a person as such is not newsworthy. What that person does is, or may be. I think one of the few exceptions to this would be the Pope because no matter what he does, he's always doing something papal .

 

[MattKing]

Taking a picture in a public place is not illegal, selling the image of a person without permission is illegal.

Can you point me to any statutory provision that states this?
I ask, because to the best of my knowledge there are none in any of the jurisdictions I am aware of.

 

[Pieter12]

Can you point me to any statutory provision that states this?
I ask, because to the best of my knowledge there are none in any of the jurisdictions I am aware of.

Not a lawyer but I have bought hundreds of images for commercial purposes in the U.S. where a release is necessary for any recognizable person in an image for advertising. Even Buzz Aldrin’s footprint can’t be used without his permission because the famous photo is of his footprint and he and everyone else is aware of that. On the other hand (once again, in the U.S.) no permission is required for artistic use.

 

[MattKing]

Not a lawyer but I have bought hundreds of images for commercial purposes in the U.S. where a release is necessary for any recognizable person in an image for advertising. Even Buzz Aldrin’s footprint can’t be used without his permission because the famous photo is of his footprint and he and everyone else is aware of that. On the other hand (once again, in the U.S.) no permission is required for artistic use.

But would it be illegal for those to have been sold to you, without the release?
In other words, would it be a crime or a breach of a statutory provision where the breach can attract punishment?
There may be a claim for compensation, but that involves private rights, not illegality.

 

[halfaman]

Taking a picture in a public place is not illegal, selling the image of a person without permission is illegal. If the event or person is news worthy, then it can be sold without permission.

And also if the work has an artistic value.

Nussenzweig v. DiCorcia

Erno Nussenzweig (1922- ) in a portrait by Philip-Lorca diCorcia (1953- ) Nussenzweig v. DiCorcia is a New York County, New York Supreme Court case allowing the display, publication and sale (at le…

wmuphoto.wordpress.com

I insist again that in this particular set of portraits Gilden has the models permission.

 

[awty]

It was she, not he.

The article (did you read it?) makes it clear that the problem isn't documenting a tragedy. That's what photojournalists do. Where there is a problem is in the fact that the girl was a teenager and was fully identifiable in the photos. In other words, not only must she live with the trauma of what happened to her, but also with the fact that the image of it will forever be available to anyone on the Web (side note, similar photos by serious photojournalists documenting rape of teenage girls in Asia have found their way on to porn websites). The fact that she is a teenager, and in a country marred by poverty and lack of basic education, makes the question of consent very ambiguous—i.e., the question of whether or not she really understood all the implications of her "consent" very murky. All this is well developed in the article.

I do think the photographer here was in good faith and not trying to "photographically exploit" a tragedy. That said, what the story brings out is that to solely focus on the question of consent in such cases is a mistake. More often than not, consent is a legal matter, not an ethical one.

So it's not a question of censorship: every story needs to be told. It's about the implications of how you are telling the story for the people about whom you are telling it. They should be the point, not the needs, desire, esthetics, etc., of the photographer.

No I dont read social media blogs.
Do you have the original article? Have you read that?
The truth hurts and nobody is going to take note of a watered down tragedy in the Congo, if there is no face then there is nothing for you to identify with. If you dont show the reality of child prostitution in third world countries then nobody takes note.
Why attack the messenger, when you should be attacking the root cause.
Governments and multinational companies hate journalists, they are regularly jailed and murdered, not just them but by activists thinking they have a moral obligation to silence what they dont like.
A picture tells a thousand words.....and can be way more powerful than words.

 

[Don_ih]

Every step between pointing the camera and publishing the photo requires consideration. Is it the responsibility of the photographer to censor his or her own work? Is it the responsibility of his or her agent (Magnum, for example) to censor that work? Or should those outlets which seek to publish the work need to accept responsibility for the work?

Magnum is more than an agency - they openly promote and publish. It's in that capacity that they should be held accountable.

A photojournalist is providing raw material that is subject to proper informed judgment upon review.

None of this is as simple as "he/she shouldn't do such things" since all of these things are judged on an individual basis. What might be best in one instance is not acceptable in another.

 

[Paul Howell]

I stand corrected, it is publishing or other wise using a person image for commercial gain without permission, by illegal I mean a civil offense not a criminal offense.

 

[snusmumriken]

Magnum is more than an agency - they openly promote and publish. It's in that capacity that they should be held accountable.

Agreed. I find their assertive presence on social media quite uncomfortable. If they are just an agency fairly selling photographers' works, why do they need to raise a following? What does a 'like' mean?

 

[AgX]

I stand corrected, it is publishing or other wise using a person image for commercial gain without permission, by illegal I mean a civil offense not a criminal offense.

In Germany it is a criminal offence...

Already without commercial gain.

 

[Pieter12]

But would it be illegal for those to have been sold to you, without the release?
In other words, would it be a crime or a breach of a statutory provision where the breach can attract punishment?
There may be a claim for compensation, but that involves private rights, not illegality.

Yes.

 

[MattKing]

In Germany it is a criminal offence...

Already without commercial gain.

Yes.

And that would be because there are specific statutory provisions where you are making that action a crime.
So it is illegal in that/those jurisdiction (s).
In much of the rest of the world, it is an issue between two parties - there is no authority to enforce the issue, and one must sue in order to obtain compensation for a proven civil wrong.
The model releases are how people contract out of any potential claim for compensation, and they can be as customizable as you can invent.
I go into all this legalese because I think it is important to understand that there is no one set of easily looked up rules about this, and no police officer who is going to make sure that everyone behaves.

 

[TJones]

But would it be illegal for those to have been sold to you, without the release?
In other words, would it be a crime or a breach of a statutory provision where the breach can attract punishment?
There may be a claim for compensation, but that involves private rights, not illegality.

As I understand the law, the sale would be legal, but the publication would not be. The responsibility to possess the necessary release(s) lies with the publisher, not with the person selling the photos.

 

[MattKing]

As I understand the law, the sale would be legal, but the publication would not be.

Publication would not be illegal, just grounds to make a private claim.

 

[Pieter12]

As I understand the law, the sale would be legal, but the publication would not be. The responsibility to possess the necessary release(s) lies with the publisher, not with the person selling the photos.

If the image usage is purchased from an agency the fee is based on that usage, so the agency would be at least partially responsible for informing the buyer what the release status is of any recognizable people in the photo.

 

[TJones]

Publication would not be illegal, just grounds to make a private claim.

The term “illegal” is applicable in both civil law and criminal law.

 

[MattKing]

The term “illegal” is applicable in both civil law and criminal law.

Not in Canadian law, outside perhaps Quebec.
AFAIK, the same applies to the UK and the USA and all other places that have roots in English law.

 

[Alan Edward Klein]

It's hard to take any street pictures without offending someone, even if it's just invading their space. I guess that's one of the reasons I'm uncomfortable when I shoot them, but I do shoot them from time to time. Some are more invasive than others.

Good street pictures are emotional. The interaction among the subjects makes them interesting. But that reveals the people in them. You're getting into their heads and souls. That's what makes them interesting but revealing what's private can be humiliating to them. People don't want others reading their thoughts and actions.

But then you can shoot boring pictures like people just crossing at the intersection. Those don't say much because the people aren't saying much in them.

The first picture is like the latter boring street type. The second is more revealing, more interesting, and questions what's going on here? It's also possibly embarrassing. Which picture is better?


Crosswalk by Alan Klein, on Flickr


Pals by Alan Klein, on Flickr

 

[Alan Edward Klein]

In Germany it is a criminal offence...

Already without commercial gain.

Too stringent laws against this would come in conflict with American constitutional guarantees of free speech which photography is considered. That's why photography is legal in public places like the street.

 

[AgX]

That's why photography is legal in [US] public places like the street.

It is more complex as this, as "taking" is different from "publishing". And a "street view" is different from a "portrait".

 

[Alan Edward Klein]

It is more complex as this, as "taking" is different from "publishing". And a "street view" is different from a "portrait".

My understanding is that publishing is just as legal as "taking" as long as the picture is not on the cover of the book or used individually for an ad. Then you get into an issue of commercialization of the individual which requires payment. I'm not a copyright lawyer so take everything I say with a grain of salt.