Friday, January 05, 2007

Kill the Lawyers?

“Nature always gives us happier laws than those we give ourselves.”

“Consider the form of this justice that governs us: it is a true testimony of human imbecility, so full it is of contradiction and error.”

("Of Experience," Michel de Montaigne.)

I was recently dismayed to receive a query from a major foundation responsible for supporting a lot of documentary work as to whether I acquire written releases from the people that I photograph as a documentary photographer. I immediately sniffed out the purpose of this query and wrote the following answer:

“Well, the short answer is a resounding no. These legal issues are entirely moot down here, and it would be ludicrous for me to burden myself with such forms. Course, I would never use my pix for questionable commercial purposes, so even in the North American legal context, I would have no need for the permission. Moreover, there are serious legal questions about the validity of such forms being signed in countries like the Dominican Republic and then being used to protect image usage in the States or Europe. There is no international law governing the practice, and a legal form that is good for the states is meaningless down here. Finally, just in terms of mere practical considerations, there is not a single Dominican in any of my photos who would ever object to having their picture seen in the normal venues where I would be willing to publish them. On the contrary, many of them are quite clear about the need to advertise their plight and hope for the best from it. I always explain to my subjects whenever I can just why I want the photo and I never take photos of people if they object.

Now if you are asking this question because (your organization) wants to use some of my photos, there is no problem at this end regarding such usage. Go right ahead, you have my blessing. However, if (your organization) is worried about some chimerical legality regarding such usage, and the organization feels bound, for whatever bureaucratic reasons of protocol, to conform to US legal strictures regardless of the ad hoc nature of these photographic situations, then I guess you will be obligated to use only such photos that come with written permissions. This will pose a problem for you, because there are bound to be very few of your photographers who can furnish such permission. while you all may well recognize that this measure is nothing but a sham, a paper tiger as it were, let me point out, and in so doing so tell you what you probably already know, that this is not a good road to go down and it is unwise to set a precedent like this when it comes to using documentary photos. The genre is seriously threatened presently by the increasing legal pressures being brought to bear on photographers in every field but especially in documentary and photojournalism. I think a strong case can be made for such photography as an exercise of free speech and I dont doubt that we will soon see some legal cases brought before the US Supreme Court. Aside from the fact that we are reporting in the field, and thereby are not actually bound by existing laws regarding usage and the rights of privacy, one must also bear in mind that we shoot in public spaces and thus we have to right to make use of the photos without seeking permission of the subjects who appear in those photos (though again this grey area has become the focus of some legal wrangling most notably in the case of Philip Lorca deCorcia, but that was because he was profiting from his images in the Art World market and not operating as a journalist -- nonetheless, "The suit was dismissed . . . by a New York State Supreme Court judge who said that the photographer's right to artistic expression trumped the subject's privacy rights." That from the NYTimes). On one hand the controversy is intellectually very interesting, but on the other hand the trend is worrisome to me. People in the so called First World live in societies increasing hedged round with laws and rules and restrictions, and it is one reason why I currently prefer living in the admitted mess (often dangerous mess) of a developing nation, where I am free pretty much to make things up as I go along. It suits me.

Anyway, as I said before my peroration, the short answer is no, I dont have such contracts. I might add that the contracts wouldnt be worth the paper they are written on, as almost all my subjects are illiterate and wouldnt understand the contracts anyway, effectively exempting them from any binding relationship.”

The subsequent response to my message confirmed my fears. The lawyer wants the photographers from whom the organization licenses and commissions work to obtain and make available all necessary releases from persons portrayed in the images, and to guarantee that the images do not infringe upon any third party’s copyright or right of privacy. The consequential damage that will ensue from making this a formal requirement is not to be underestimated by those of us in the field. While it will certainly inconvenience the foundations who rely on our imagery to promote their programs, it is bound to have a much worse effect on the photographers. If I win a big grant, say, from such an organization, I am virtually assured of getting no mileage out of it as the images will be unusable by them. Of course, the next step will be that the organizations require all their grantees to furnish such releases as part of the deal, which means that people like me, who work in developing nations where such agreements are worthless, could effectively be prevented from applying for important grants.

There will be those who would remind me that after all this is nothing but a legal formality and there are many photographers working in developed nations already accustomed to using such forms. France, as we have learned recently on Lightstalkers, from a debate about the use of blurred faces in pix taken by Simon Wheatley, is one place where the legalities of photographing in public places have become impossibly entangled and inhibitive.

Well, aside from the fact that, at least in my work, there are few moments I capture that lend themselves to prolonged legal discussions with my subjects about the need to sign a release, and putting aside as well the impossibility of handing out releases to all the people in the crowds I habitually photograph, the ludicrous nature of the thinking behind this measure is such that I can only agree with Montaigne about the imbecility of it all. Of what possible use is a legal document, albeit written in Spanish, in a country like the Dominican Republic where the subjects I shoot are all illiterate and the laws are all routinely ignored because they are mere smoke and mirrors? While the releases signed down here are not worth the paper they are written on either in a Dominican court or a North American court, they are also absolutely useless as a symbol of respect for the rights of the photographed subjects, and in reality are nothing more than flimsy sanitary paper designed to protect somebody’s ass back in the States-- and whose that might be is not really clear since I doubt that this really helps the organizations much. I think it is ultimately intended to protect the lawyer! Of course, if I have to, I suppose I will start carrying around such forms, but in all honesty the idea of colluding in this sham does not sit well with me, it seems a betrayal of everything that my practice of photography stands for, and I am not sure I can in good conscience cooperate. I would be deceiving my photographic subjects and my clients as well as behaving like a hypocrite, and I despise cant.

The problem lies in the extreme dissociation between legal and everyday realities. Here is an interesting story by Montaigne that sums it up nicely:

“here is something that happened in my time. Certain men are condemned to death for a murder, the sentence being, if not pronounced, at least decided and determined. At this point the judges are informed by the officers of an inferior court nearby that they have some prisoners who confess outright to this murder and throw a decisive light on the whole business. They deliberate whether because of this they should interrupt and defer the execution of the sentence passed upon the first accused. They consider the novelty of the case and the precedent it would set in suspending the execution of sentences; that the sentence has been passed according to the law, and that the judges have no right to change their minds. In short, these poor devils are sacrificed to the forms of justice.”

I rest my case.

Addendum: I was given permission to publish this on Lightstalkers and on my blog, as the organization wants the issue aired, but certain clarifications were made which I duly added to the essay above. A few questions could not be editorially absorbed into the body of that text, so I will take time to broach them here.

First off, questions were raised as to whether in fact such legalities are, as I claim, moot in the DR and whether or not in fact there is international law governing these matters. The answer to the second is easy: no. Just as copyright laws are notoriously difficult to enforce internationally due to the fact that no global consensus exists, this issue of free speech vs rights of privacy is as yet unlegislated globally and subject to local interpretations (or an entire lack of attention to the matter, as in the DR). The answer to the second is a bit complex: while I have never ever by any organization or legal body here been hampered in the pursuit of my work on the sugar plantations, and on the contrary have practically been forced to photograph in the most private of situations with narry a concern for the subject, there is in fact one area in which I have been counseled to proceed more judiciously, shall we say, and that is in working with Plan Dominicana on issues dealing with minors (child abuse, child labor, etc). Here we work more scrupulously to protect the identity of the children, though it is more a matter of conscience than of binding laws. I believe the laws are on the books, but they are ignored—or rather, they are complied with only because we see fit to do so, not because the laws are effective here. And we do it to protect the children, not to protect ourselves from litigation.

Now in a sense that for me is still besides the point. In an authoritarian society where the rule of money and power goes unchecked despite the written law, I think it is imperative to proceed in a manner consistent with the exigent and all-important right of free expression, because privacy rights here are invoked only to protect the cabal of rich businesspeople and landowners. If a case were ever cooked up against me on the grounds that I violated the privacy of a bracero in the pursuit of my story, you can be sure that it would be done so by the mill owners in an attempt to silence me rather than protect their workers’ rights, which are hardly of concern to the ruling class. This is one reason why artistic expression and free speech, which are exercised in pursuit of a larger good, must take precedence over the rights of privacy—regardless of whether we are working in public or private space, too. After all, a mill owner could claim that I had trespassed on private property when I entered a batey and therefore my pictures constituted a violation of privacy. You see the danger of this kind of argument?

I was asked if my subjects would object to having their pic appear on the cover of the foundation’s annual report, as I had already answered that “many of them are quite clear about the need to advertise their plight and hope for the best from it.” Clearly, though I do not spell out the various uses which I deem legitimate, as they wouldnt understand it anyway, there is good reason to act in faith that such usage as outlined here is in conformity with the need to advertise their plight.

Finally, the foundation clarified a crucial point: “Our lawyer doesn’t have a problem with us using them, as long as you sign a contract stating that you have all necessary permissions, releases, etc, and that your work does not infringe upon any third party’s copyright, trademark, or right to privacy.” How can I guarantee any of this? how can anyone? As I stated, the release that I would have them sign, albeit written in Spanish and in proper legal form, would be useless as there is no clear precedent for its use internationally. To talk of copyright and trademark in the context of braceros who own nothing more than a machete is of course irrelevant, but to talk of “right to privacy” in this context is even more ludicrous if not insulting. The whole point of my documentary is that these poor devils have no privacy whatsoever: they live four to a room on metal bunkbeds without mattresses, they own nothing, not even their own identity; they are stateless, without rights, in a legal and national limbo. that is the whole point. Besides the fact that “privacy” as a concept, which is every bit cultural as well as legal, is construed in an entirely different manner here in Latin America, there is the added fact that privacy as a right cannot be said to exist in the context of the quasi-Apartheid like conditions of the bateys. These people belong to the mills and as such the only privacy to speak of belongs to the mill owners, and therein lies the danger.

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