What is the philosophical justification generally accepted by photographers on why they should be able to profit privately over public property?

Question

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.

Answer 1

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 @JoanneC 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.

Answer 2

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.

Answer 3

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?

Answer 4

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.

Answer 5

If a person unobtrusively photographs of a public statue, monument, building, or other such work, such action will not materially interfere with any benefit anyone else might hope to receive from that work. If there are people who would like to have photographs of the monument, and none are available for sale, someone who takes such photographs and offers them for sale at an acceptable price would be profiting by providing a service to the purchasers--a service which other people might have been able to provide, but which nobody was providing.

If one person is selling pictures of the monument when another decides to take his own pictures and sell those, the second person's entry into the market may reduce the profit available to the first person, but unless the first person has some unique right to sell pictures without competition, the second person would have just as much right to take and sell pictures as the first. As more people enter the market, the profit available to each will diminish, but the reduction in profits will encourage current and prospective participants to seek out new markets that are less well served.