Photographs Push First Amendment Boundaries

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I don’t know much about Richard Prince, but I like to think that he’s in the business of operating at the edges of what’s acceptable. Whether he’s pushing the boundaries or just working in the grey area I think it’s important for art to have trouble makers. I’m more comfortable thinking about blank canvasses and drawing on top of images as important for pushing boundaries that other work can be built upon than worrying about whether this is something that will be admired centuries from now. I believe the title of this piece Jonathan Blaustein wrote for me: “You Don’t Always Get Art, But We Still Need More Of It“.

So, what about the grey area when it comes to photography and privacy. This is certainly a contentious and topical issue when it comes to paparazzi chasing celebrities or people taking pictures of slaughterhouses. Recent attempts at legislation in those areas (here, here, here) suggest people would like to limit the first amendment right to photography in public places. An exhibition at the Julie Saul Gallery in Chelsea seems to be pushing the boundary of privacy and photography. Photographer Arne Svenson shot pictures of residents in a neighboring building with a telephoto lens from his own apartment across the street. In a story for the New York Times Magazine, Photography Director Kathy Ryan contemplates the artistry vs. privacy issue:

These particular pictures are problematic, even for those, like me, who overwhelmingly side with artists and journalists when it comes to questions of freedom of expression. I support the artist’s right to make and exhibit his art and feel Svenson has the right to exhibit these pictures. But if images surfaced in a gallery of my daughter in our home, shot by a photographer using a long lens without our knowledge, I wouldn’t be happy. So the question arises, is it art when it’s a photograph of someone else, but not when it’s you or your family?

(Read the rest here)

I think in the end Arne Svenson may run into “a reasonable expectation of privacy” which is what makes street photography and making pictures in public possible and taking pictures of people in their homes illegal (Note: consult a lawyer, this is just my opinion).

But, I agree with Kathy in her conclusion that “the freedoms enjoyed by artists and journalists are worth possible breaches of privacy.” Boundary pushing is good for art, we don’t always “get it”, but it allows other artists to build upon it.

There Are 18 Comments On This Article.

  1. Meanwhile, homeless people don’t get any expectation of privacy, even when sleeping in a box on the street that amounts to their home. All humans have an expectation of dignity though, and dignity is really what privacy is about. I care a lot less about some rich person too obstinate to close the blinds or let the drape down, than a homeless person too indigent to afford even a wall, let alone nice big clean widows.

    • However, with things like Google Glass, Autographer, and more things like that, I do think it’s pretty clear that everyone’s expectations of privacy are going to be adjusted downward, whether they like it or not. Tech companies made sure copyright law didn’t interfere with their businesses, and they’ll do the same for privacy.

    • I agree with the point you make about photographing homeless people. (I personally think that it borders on exploitative, and in many ways is too… easy?) But the part about targeting a rich person because you think that they’re somehow snotty demonstrates my argument. We don’t know anything about the people in the photos and that’s one of the points of the art. The problem for me comes about when we stop thinking of the subjects in a photograph as real people and instead treat them as animals in the zoo, numb to our intentions. To suggest that it’s somehow okay because they are rich is as irrelevant as if they were homeless. To then make money off of them selling them as art makes the whole thing stink.

      Having said all that, I actually really do like the collection, even if I’m uncomfortable with how they were made. But hey, art is about contradiction, right?

      • Yeah, that’s part of my problem too: I like the collection, but I don’t think I’d like being in one of them.

  2. I guess I’d have to disagree with most of this. I don’t believe that the rights, privilege, and discretion of an “artist” is somehow more important than the rights, safety and reputation of everyone else. I think that these images totally cross the line. XX many stories up, I believe that there IS a reasonable expectation of privacy. I am personally not a fan of *most* street photography (as opposed to photojournalism) for the same reason. The idea that a self-identified “fine arts photographer” can and/or should make covert photos that cast someone in an unflattering light, absent context or research, simply because they think that it’s “Artsy” is egotistical. (I am NOT talking about photographers who have the balls to actually TALK to their subjects, like “Humans of New York” or “The Sartorialist”.) Having said this, I acknowledge that there has to be at least a fuzzy line somewhere between public and private, so I recognize that it’s more dangerous, on balance, to restrict the right to make photographs in public places than to outlaw it.

    And yes, if I saw a photo of my child in his bedroom on a gallery wall that was taken through the window, you bet your ass I would burn it up on the spot. Some shmuck’s art doesn’t trump my family’s privacy and safety.

  3. While I understand you do not write for others’ approval, I am completely floored by your position here and even more so given your influence in the field. Svenson can spy on his neighbors for hours and hours, all in the name of art, all for waiting for that one moment. And what photographs has he taken that are not yet published? Now that this broken boundary is declared art, what about the next round of photographs. When do you draw the line? The thing is, our country is founded upon a balancing act–that the rights of the few do not trample the rights of the majority and the reverse of that as well. That juggling act doesn’t always work well. But if we allow artists to have unlimited “rights” which ignore the rights of others while they are in their own homes, what kind of society are we becoming? If we as a society accept these photographs as a premise of “it is art” and it is ok to “breech” the privacy rights of others–then at what point do we begin to blur the lines and say the same actions are ok for anyone to do? Are you really saying it is ok for artists to treat people in their homes as animals in cages to be photographed and displayed at an artist’s will?

    Privacy in one’s home is a fundamental right in this country and very much founded upon the reaction to troops quartered in people’s homes. It should not be violated by paparazzi, by artists, or by the average citizen. Somehow today, we are accepting more and more intrusions by spying, whether done by corporations or police. And now you seem to be supporting we can add artists to the list of that. I have to wonder how the gallery owner would feel knowing someone was constantly watching and photographing the moments of the owners life. The subjects of these photographs had no choice in this and now live with the knowledge that someone has been constantly watching them for hours on end. It is not art when it happens to someone else; it is not art when it happens to you. Instead, when artists support “art” like this, they may very likely contribute to increasing laws that restrict freedoms we all enjoy. I have heard you speak about supporting photography in ways equivalent to the tide raises all boats. The tide can also lower them. I cannot understand how this gallery or any critic can support this photographer’s actions or this series of work in the name of art. In effect, they are saying anyone can do this under the guise of “it is art because I say so.” We enjoy a great many rights and privileges that have taken centuries of sacrifice to earn. Do we really want artists contributing to throwing those rights away? Do artists want to support that? What do other artists build on here? How far are you prepared to support giving artists unlimited rights and privileges at the expense of the rights of others?

    This is not art; it is exploitation and it is not ok. There is a huge difference in breaching privacy unknowingly and supporting deliberate spying into the homes of other people under the umbrella “it is art.” So then, corporations hire photographers to take photos into people’s homes under the umbrella “we are just trying to enhance our services to our customers.” What a very slippery slope you are supporting here.

      • Yes, but just because technology can enable and facilitate constant surveillance, doesn’t mean we as a society should accept that or stand aside and silently give up basic rights. I know it is happening and it is puzzling that, except for a small minority of people, we just seem to say we accept this. But it is a scary thing to me when we say it is ok for artists to contribute to that.

    • I’m sorry you are floored by my thoughts on the subject, but I was trying to carefully outline the contradiction I feel: that pushing boundaries is good for art and yet still I don’t think much of Richard Prince’s work other than that idea and I believe this body of work is an invasion of privacy.

      I was surprised to not find much in the way of case law on this subject (using google anyway) so I suspect we will see this define the boundary on the subject.

      I think Kathy felt a similar contradiction, but I’ll let her leave a comment if she feels like it. I know she was interested in debating the topic, so I appreciate your thoughtful comment.

    • Watching other people in the building across the street is a pretty regular practice in Manhattan, so it’s not like someone living there doesn’t know it’s happening, and it hardly amounts to spying. So in this situation, I’m not even convinced there’s any more of an expectation of privacy than out on the street.

      It works both ways though–exhibitionists often use their own window for shows, causing people to have to close their blinds if they don’t want to see it. I’ll spare you any examples of what I saw living there, but let’s just say if I’m forced to close my blinds if I don’t want to see what’s going on inside someone’s window, others can do the same if they want to prevent anyone from seeing inside. (it’s also why Kramer was the first one out of “The Contest”).

      But it’s not like I don’t see both sides. Living all packed in together can get difficult, and we do need rules.

  4. scott Rex Ely

    The provenance of a 2 dimensional object doesn’t necessarily automatically justify its celebration, value or worth based on expert recognition of that provenance.
    What’s next, beautifully crafted pictures of people defecating that mid-to top level arbitrators find haute?

  5. If you look at the body of work, Mr. Svenson has been pretty safe about not revealing the faces of his subjects. You have to think he chose frames that protected the identity of the people. There’s a whole lot of other photography to raise a stink about, especially Richard Prince’s work. Svenson’s work is beautiful and thoughtful. Until it crosses into becoming exploitative, I have no complaint.

  6. Last year I exhibited a series of portraits of train commuters taken in Sydney, Australia.

    http://www.johnslaytor.com/commuters.html

    There were two reactions to the work. On the one hand many people responded positively to the images. On the other hand, far too many people asked me if my activity was legal (it was).

    What I am trying to say is that we (in the minority world) now seem to be living in a self-censoring society and that may condemn artists to only repeating what has already been done. Hopefully, my work shows it is possible to produce new imagery but Svenson’s work may restrict the production of new work by giving legislators carte blanche to impose new privacy rules.

  7. scott Rex Ely

    I’d have to take issue with KR’s comment: “But, I agree with Kathy in her conclusion that “the freedoms enjoyed by artists and journalists are worth possible breaches of privacy.” Boundary pushing is good for art, we don’t always “get it”, but it allows other artists to build upon it.”

    To me, she’s specifically associating the limits on journalists with limits on artists and I think she’s saying they both have equivalent protection by the first amendment. I don’t think. . .
    The people aren’t going to contemplate their freedoms being extinguished if art becomes censored out of all established recognition. However, if the press is limited by what truths they can reveal about a government the people could very well decide to make some physical changes for their own protection.
    I think its kind of a fig leaf persuasion device to justify some fetish driven 2-dimensional art that was perversely constructed.
    Knowing more about the art and how it’s made is important, no?
    This stuff doesn’t float my boat ethically, but I wouldn’t ban it. I just think journalism is higher up the first amendment totem pole.

  8. when you look back at the old masters of photography you have to ask yourself- did the photographer get permission from the subject. Look at the work of Robert Frank- would his Americans work been produced today. Things change with society and we have to adapt to fit the current trends in public privacy. Shame but that is where we are and I doubt we will ever return to the freedom once enjoyed by the previous generations.

  9. I personally would probably be freaked out to find out my neighbor was taking pictures of me in secret, but I would not say it is harmful to me. So I do not see the problem and it besides it does not seem like there are any faces in these pictures, there might be, but I would have to say no harm no foul.

  10. I find the reaction to these images really surprising. When I saw the show, I was immediately struck by two defined responses: First, the work is quite beautiful, with its subtle color palette and a general feeling of “softness” in the prints, with a slight cinematic-still quality, and secondly, that the artist seemed to be really holding back in terms of actually depicting his subjects, seemingly preferring mystery over illumination.

    The amount privacy-backlash that the images have garnered seemed out of proportion when contemplated in the presence of these restrained and mysterious “portraits.” From reading about the work’s response, I was expecting to see people fresh out of the shower, fully rendered in brutal, high-res detail, the entirety of their social security card somehow visible in hand. In that regard, the work seemed tame by comparison to earlier (and highly publicized) images from Michael Wolf’s The Transparent City. Imagine if Martin Parr was controlling the shutter.

    Though I of course understand why a lot of people wouldn’t like the idea of someone taking photos through their windows, I believe when it comes to privacy, artists making soft-hued prints of unrecognizable feet are the least of our worries.