More Than 1000 Words — THIS WEEK IN TORTS

I grew up in a household of photographs. My father was (and is) an avid photographer, and wherever we went, so too did his camera. This was the day of film, where every shutter actuation mattered and where you had to wait a week to see if the shot came out. My dad was a pretty amazing photographer, as evidenced by the photos he took as a Peace Corps volunteer in Guatemala with an entirely manual camera.

I had sniffles of the photo bug for years, but only came down with the full-blown illness when I started going on adventures as a way to combat my Multiple Sclerosis. Then came kids and I had a full-time, live in set of subjects. But in between the adventures and the babies' first moments, I've often found myself taking photos of everyday things. Photos of people living their lives, of happiness and sadness, chores and hard work. I don't know why I started to do this, but ultimately those photos became just as valued to me as any documentation of my own life.

Although I stumbled upon it unintentionally, it turns out that this sort of photography has a name: street photography. And not only does it have a name, it is having something of a renaissance. This is no doubt due to the stratospheric explosion of the number of cameras in this world. Sure, sales of elaborate system cameras are way, way down. But just about everybody you know is carrying a digital camera in their pocket capable of taking photos as good as a $1000 camera from 10 years ago. Add in Facebook and Instagram, and we've never lived in a more photographed world.

When I take a street photograph, I tend to put my camera into a silent mode and otherwise try to conceal what I'm doing. In a sort of Heisenberg Uncertainty Principal of photography, if a person knows they are being photographed they immediately change their expression and instead of capturing real life you are just capturing an image of somebody being photographed. But there's another reason I take my photos in an inconspicuous way: a lot of folks don't like being part of somebody else's little art project.

It turns out that this is quite an issue, as street photographers all around the world have been met by glares, glowers, verbal abuse, and even physical attack. And given what I do, one has to wonder if taking those photos is somehow illegal. Is it a tort? Am I violating a duty to my subjects by taking their photo without their permission?

As a baseline matter, it turns out that in the United States, street photography like what I sometimes do is entirely legal. It is based on the assumption that what you do in public is, in fact, public. Whatever you allow people to capture with their eyes and mind can also legally be captured by a lens and sensor. But let's imagine a world in which a street photographer is in fact a tortfeasor. What would the underlying tort look like? Presumably it would be a dignitary tort, like defamation or invasion of privacy.

In fact, the world in which street photography is illegal would look something like France. It turns out that France has a law that specifically prohibits the practice of taking somebody’s photo without their permission, part of “Article 9.” It is based on a theory that a person’s likeness is part of their personality, which sounds a lot like the French conception of copyright as well. As a result of this law, street photography in France is practically unheard of....which is a little sad given that one of the most important street photographers of all time was French. From the early 1930s to the late 1960s, Henri Cartier Bresson captured ordinary moments in the ordinary lives of ordinary Parisians. And in doing so he gave us a window into the soul of France. So while the French have gained a bit of perceived privacy, they may have lost something larger in the process. That’s certainly the take of Aurélie Filippetti, France’s minister of culture from 2012 through 2014, who says that “[b]ecause of [Article 9] we run the risk of losing our memory...Just to think that Cartier-Bresson or Josef Koudelka would have been prevented from doing their work is unbearable.”

Of course, taking a photo of a person and using the photo of that person are not the same. So while one can take a photo of a sad-looking person in the United States, that image can't be used without permission in an advertisement for, say, antidepressants. This falls generally under the category of the “right to publicity,” a somewhat vague concept that plays out differently from state to state. Essentially, the “right to publicity,” says that your “name, image, likeness, or other recognizable aspects of [your] persona” cannot be used for commercial gain without your permission. Perhaps unsurprisingly, right to publicity charges are frequently brought by celebrities. In 2000, several blues musicians successfully sued the record label, Collectibles, and music producer, Roy Ames, for using their names and photos in music catalogues and on the album covers without their permission.

Before I wrap up my legal analysis of street photography, I want to spend a moment discussing a left-field possibility. Is there any way that aggressively taking a photo of a person could represent an assault? Assault is defined as intentionally causing someone to fear imminent bodily harm or other form of offensive contact. Here, I would hope that there is no fear of bodily harm or offensive contact. But what if we adopted a France-like regime where capturing a likeness that is itself offensive? Might holding a gigantic camera or flashing a bright light in someone’s face be enough to trigger assault? As a photographer, I can attest that certain cameras do seem to have a threatening impact on subjects. There is even a niche market for high-end cameras designed specifically to be nonthreatening for the purpose of street photography.

So if street photography can be threatening, potentially violates a person’s dignity, and also may infringe on personality rights, is it moral for me to take the photos I take? What’s more, is it acceptable for me to post some of them in conjunction with this article? Given the nonprofit nature of what we’re doing, and the fact that I am using the photos here to illustrate an article about street photography, I’m leaning “comfortable” with their use today.

And in the end I am also comfortable with practicing street photography. It is a small way for me to see and understand the world better, and It has trained me to observe and to empathize with people more. I’ll never be Henri Cartier-Bresson, but I understand what he did and its value. And although I am a very private person (“Ellis!”), I would not mind if somebody took an unsuspecting photo of me. So if you see a street photo of a person ambling down a sidewalk with a shiny metal cane, that might be yours truly. And you have my blessing to tip your cap to the photographer who took it. - Ellis & Acton