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Say someone takes a picture of Lord Nelson's statue in Trafalgar Square at dusk, and sells on his website for profit. Is it not arguable that people would not buy it if it weren't a statue of a famous historical figure, and thus the end product is as indelibly formed of public property as it is of the photographer's technical skill? A more apt example, perhaps, would be that of a paparazzo snapping a picture of a famous celebrity in scandal — why should the celebrity not have coequal rights as the photographer to profit off of or restrict the copyright of an image that relies on his person to be attractive? So my question is: What philosophical justifications have photographers generally accepted or promulgated to rebut these arguments?

N.B. To be clear, I'm not hostile towards photography or photographers; I just thought of this argument, and the resolution to it wasn't quite clear to me.

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See also: photo.stackexchange.com/questions/5936/… –  koiyu Apr 29 '11 at 12:39
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My title's kind of a tongue-twister...neat. –  Uticensis Apr 29 '11 at 12:46
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See also: photo.stackexchange.com/q/4140/21 –  Rowland Shaw Apr 29 '11 at 13:17
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@Rowland Shaw I don't think your analogy is fair; what I'm really wondering is not that photographers profit, as a water company might from delivering water to our homes, but that they profit exclusively from pictures taken in public spaces -- if I'm not mistaken, water companies have to buy water rights from governments and individuals to mark up that water. Why don't papparazzi and street photographers have to buy personality rights from their subjects? –  Uticensis Apr 29 '11 at 14:40
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@billare: Perhaps you may be interested in reading Lawrence Lessig's Free Culture, which while not specific to photography is an extensive analysis of the considerations behind intellectual property: free-culture.cc –  Brian M. Hunt Apr 29 '11 at 19:03

4 Answers 4

up vote 9 down vote accepted

The short and simple answer is that a photograph is a form of expression. I'm free to express myself as long as I don't infringe on somebody else's rights in doing so.

In the case of something like street photography, that usually works out fairly simply: if I take a picture in a place where somebody has a reasonable expectation of privacy, then I'm infringing on their rights, and I can't do it (without their permission). If they're in a place where they don't have a right to privacy, then I'm not infringing on their rights.

Looking at it from the other direction, going into a public place gives implicit consent to be watched, talked about, written about, videotaped, photographed, etc. If somebody prefers not to give the consent implicit with going into public, that's fine -- they're welcome to stay in a private place as long as they wish. When/if they choose to go into public, they have given up any right to privacy, and others' right to freedom of expression becomes the controlling factor, and a photograph is no different from any other form of expression.

Giving the subject of the speech, writing, photograph, videotape, etc., control over the results would infringe on the freedom of expression of the speaker/writer/photographer. The mere fact that they are the subject of the expression in question does not give them a right to limit or infringe on others' freedom of expression. Attempting to grant them such a right would utterly destroy freedom of speech/expression.

From a philosophical viewpoint, I see little difference between publishing a photograph of something "scandalous", or writing about the same subject. If we allow the subject to control that, it's a short, slippery slope to "you can't gossip about me", and even "you can't think nasty thoughts about me."

Edit: As @John Cavan pointed out, there are limits on the loss of privacy implicit in going out in public. In particular, what I make public becomes public, and what I keep private remains private. There mere act of walking out my door does not, of course, give anybody the right to look in my bank account, remove my clothes so they can take pictures of me naked (not that anybody would want to in my case!), break into my house to see what videos I like to watch, etc.

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+1 I would tend to agree except they haven't given up the right to any privacy, just certain forms of it. In other words, just because I stroll around the park doesn't mean you get to see my bank account. :) –  John Cavan Apr 29 '11 at 17:59
    
@John Cavan: Well now, I guess that depends on whether you're strolling around the park carrying a powered-up netbook with an open WiFi connection, doesn't it. ;-) –  Jay Lance Photography Apr 30 '11 at 4:51
    
A weakness in this argument is uncovered when we consider homeless people. They have no private realm into which they can withdraw; they have no choice but to be in public places and thus no implicit concent can be presumed. –  fmark May 6 '11 at 15:16
    
@fmark: That argument works only to the degree that their lack of privacy is outside their control. Sometimes it probably is, at least partially (e.g., severe emotional or psychological problems), but in other cases it's clearly not (their being homeless results from their own decisions). Somebody having chosen to be in public at all times doesn't somehow give them the extra right to limit others' free speech. –  Jerry Coffin May 6 '11 at 15:24

A photograph is no more its subject than a descriptive paragraph would be. It has no depth, no shape, just a one dimensional recording of light.

In practice, the situation you've describe is legal because to make it illegal would be absolutely ridiculous. Should authors pay royalties for describing landmarks? What if someone builds a model of a train station, from drawings, should they pay the artist or the architect? Who should a news station pay to show a warehouse burning, the building's owner, or the arsonist who started the fire?

You could also approach this from this angle: Anybody can do it, because everybody can do it. We're all free to photograph and profit from public spaces. Again, it's because we profit from the work we've created, not the object itself.

All that said, there are more restrictions being implemented every day on our right to create art based on physical spaces. Many locations require location releases - a sort of model release for a specific space. Lots of people photography requires model releases, as people have something called "likeness rights". There are waivers for those rights when reporting news, that's why you don't need a model release to photograph the President making a state visit, but you need one to use his photo to sell a product. Art photography doesn't fall into news usage, and many photographers shooting street portraits will travel with an assistant who takes care of the model releases as needed. Laws vary by country though, in Poland you can use a photo with 3 or more people in it without any kind of release.

Historically speaking, photographers haven't had to rebuff these arguments because the insane sort of intelectual property entitlement that currently exists in the western world is an brand new invention that's only gotten this... out of hand in the past 20-30 years. Artists have always ripped each off since the beginning of man's creativity. Many artists (especially painters and sculptors) were incredibly secretive about their techniques, the current sharing of knowledge we're accustomed to just didn't exist. More than a few secret recipes for pigments have been taken to the grave.

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+1 for "Anybody can do it, because everybody can do it. We're all free to photograph and profit from public spaces." –  Sean Apr 29 '11 at 17:21
    
@Sean While I liked the overall message of Jędrek's answer, and upvoted it, I'm not so sure that particular argument works. Say I were to borrow my neighbor's "bicycle" (his personality rights), and go on a joyride for my personal amusement and profit, and upon returning he accosted me about it -- I couldn't very well say to him, "Well, you can borrow my bike any time you want", could I? Isn't that part of the fundamental nature of property rights -- that we are allowed to refuse arrangements that someone else might see as more than fair? –  Uticensis Apr 29 '11 at 17:44
    
@Billare - Setting aside for a moment the differences in physical vs. intellectual property and under what circumstances the later can be considered stolen... I liked the quoted text as a rebuttal to a potential 'fallacy of composition' argument. Namely, that for some behavior to be considered sustainable and beneficial in a society, its claimed positive effects must hold even when that activity is engaged in by all members, not just a few. While this is not a complete philosophical justification in and of itself, it is a critical element that must be present for any fair justification. –  Sean Apr 29 '11 at 18:18
    
Public spaces are not private objects (as per your example Billare). We all profit from sidewalks, parks, roads and sewage systems even if we don't pay for them in any direct way (ex. having underground pipes keeps us from having to look at, smell and navigate around water and sewage trucks). –  Jędrek Kostecki May 2 '11 at 7:17

A photo is not the object, but a representation of the object. It is, in fact, the photographer's, as artist or creator, interpretation of that object, that object at a point of time, or the moment.

Try your question, substituting the word "painting" and see if you still have the same question. Would you argue that Monet's painting of the bridge should not sell for millions because the bridge is in a now public park?

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So I suppose my Trafalgar Square example wasn't a good one -- one might argue that public property gives everyone an implicit license to profit from it, as long as one doesn't exclude another. But I don't see how this addresses the papparazzo example, where the "object" has agency; one's legal name isn't literally the person, but one still has tangible rights over it, to sue over things like slander and libel. Indeed, people have many representations of themselves protected by law, such as their online identities, credit card information, etc. –  Uticensis Apr 29 '11 at 13:33
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It is still a representation and interpretation of a person at a moment in time, and thus a creation of the artist more than the person being photographed. –  Kendall Helmstetter Gelner Apr 29 '11 at 16:30
    
@Kendall Helmstetter Gelner I still don't get it. You have a photograph. I create a digital representation, a copy of your photograph, at a single moment in time, in my high resolution scanner. I blow up 2x, tint it blue, for use on the box of some software I'm selling. It's not the work, exactly, but an interpretation. I don't pay the original creator of the work. Now, I'm only a naif in photography, but I don't think a single photographer here would condone that course of action. Photographers obviously don't see their photos as ordinary "objects" in the sense cmason is describing. –  Uticensis Apr 29 '11 at 19:54
    
An exact duplicate is not artistic because there is no change, no input from yourself whatsoever in presentation. Put it on an easel, at an angle, in specific lighting - then you have added something and the same argument applies. The line is when you add elements together to make an image. –  Kendall Helmstetter Gelner Apr 30 '11 at 4:23
    
This is the correct answer imho! –  fmark May 6 '11 at 15:18

When public property is photographed it actually benefits the public property, since there are taxes on the equipment purchases, image sales, and profits of the photographer. Therefore, there actually are "hidden royalties" already being paid by the photographer in the form of taxes.

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To be a little US-centric for a second, what good are the taxes going to support our National Parks if the parks aren't photographed and/or visited? And if they are photographed then won't that bring in more visitors and hence fees, and decrease the tax burden a little (or make the resources go further)? –  Jared Updike Apr 29 '11 at 22:44

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