Facing the End of Street Photography

‘The End of Street Photography?’, seminar at Monash University, 2006 

Taking photographs on the street is one of the foundational practices of photography. Yet this practice now seems to be under direct attack, or at least undergoing fundamental change. Now photographers’ blogs are filled with stories of them being harassed by security guards, stopped by police and asked for ID, attacked and treated with immediate suspicion. Students have reported to me that security guards have harassed them for the taking images of the outside of office buildings, even though that practice is perfectly legal, and no copyright law covers images of built architecture. A martinet bus driver has confiscated the camera of another student, even though public transport is public space where no right of privacy exists. Another student of a colleague was actually detained for several hours by the police for taking pictures of the Adelaide Law Courts, echoing the experience of the entire Geelong Camera Club which was reported en masse for taking images of an oil refinery.

On one Sydney photographer’s web site its owner, Andrew Nemeth, is moved to say:

“Photography is not a crime. Many photographers are fed up with being treated as if they were creeps”.  JPG Magazine devoted an entire issue to that theme in February: “’Photography is Not a Crime’ is a rallying cry. It’s meant to remind everyone that amateur photographers are the documentarians of real life. We capture our world to help us understand it. We are not a threat.”

I want to tease out some recent events in Australia, the US and the UK and identify seven effects that have led to this state of affairs.

THE MALL EFFECT

Although there is no automatic right of privacy in Australia, the controllers of any coomercial or government premises can make any rules they like as a condition of entry into their premises. And more and more supposedly ‘public’ space in Australia is becoming privatized. The lost ideal of public space is the Athenean Agora, an open civic place in the middle of ancient Athens where Athenean men could interact as individuals, protected by an idea of the inherent value of civil intercourse. But for many critics of contemporary urbanity, such as Richard Sennett, Marshall Berman and Mike Davis, the dominant space of public interaction has gone from civic forum to shopping centre, from the city street to private mall. Pedestrians are no longer citizens but consumers, not experiencing democratic interactions, but having regulated retail experiences.

For instance in July this year the Southgate shopping centre in Melbourne erected warning signs featuring a camera crossed out with a bright red slash. In one incident a Chubb security guard stopped the grandmother Val Moss from taking photographs from the public footpath “because”, he said, “of the terrorism overseas’. In response her camera club, the Knox Photographic Society staged a demonstration with over 100 photographers. A spokesperson for the Mall said; “There are safety, security, privacy and copyright issues which need to be considered with all photography and filming within the centre, and we reserve the right to ask people to stop filming or photographing if it is deemed inappropriate.”  No there aren’t. Safety is not compromised by raising a camera to your eye, nor will security be breached by hand held snaps. There is no right of privacy in public space, so why should there be a right of privacy in the ‘new’ public space of the mall, and copyright is not infringed by taking photographs that will only include goods on display or advertising signs as incidental parts of a general scene.

The real reason for these kinds of blanket bans is to restrict the behavior of people using the mall. They attempt to focus the possible behaviors of customers to a narrow spectrum around the core function of shopping — buying, look into shop windows, recharging on coffee and cake, and feeling protected. This narrow band of profitable behavior excludes all other non-corporate behavior previously acceptable in public, such as mooching, or recording their environment.

THE OSAMA EFFECT

Ironically, of course, those areas in which guards prevent you from taking photographs which otherwise would be perfectly legal, are exactly the same areas which are under constant video surveillance. A generalized fear of terrorism and street crime is the justification for the surveillance cameras which cover our public and private urban spaces. But the effectiveness of this surveillance is highly doubtful, as evidenced earlier this by the investigative reporters for The Chaser. When dressed as Texan Tourists they were able to video on the Harbour Bridge and at Lucus Heights unmolested. When dressed as a pantomime sheik they only lasted three minutes.

THE iPOD EFFECT

One instinctive reaction reaction to this alienation of public space is a movement towards what could be called the ‘iPoding’ of the self whilst out in public. Cars have long been mobile lounge rooms creating a jealously guarded piece of domesticity within which to navigate through an alienating public space. Now headphones are creating an aural chassis around individuals — hard shells of indifference and distraction nobody is allowed to penetrate.

THE DOLLY DUNN EFFECT

When the notorious pedophile Dolly Dunn was finally arrested in 1997, a number of video tapes of young boys at the beach was found in his possession. This led to a general panic amongst the public of pedophiles using photographs to stalk and groom young people. And this panic is now affecting art photographers.

In preparing for her exhibition of portraits of her son’s soccer team, Under Twelves, at the Ground Floor gallery in Balmain in late 2005, Ella Dreyfus was scrupulous in making sure all parents knew what she was doing. She showed them a sample of the style of her shots, and all agreed to her project enthusiastically. “Young boys are beautiful; their mothers know this, but does society allow us to acknowledge their beauty?” asked Dreyfus. But a few days before the show some parents got nervous and accused her of inadvertently inciting pedophilia. Amongst a vaguely expressed fear of her pictures of their children being used by pedophiles, Dreyfus suddenly found that two images were withdrawn from the exhibition, and six were marked not for sale.

The media deliberately provoked other panics. In early 2005 the Brisbane Courier Mail found a website with non-pornographic, non-offensive photographs of children playing at Southbank on it, the created an unsubstantiated panic that international child pornography rings had linked to the site. They hadn’t. Ultimately no action was taken. In Victoria, a site with close-ups of schoolboy rowers, which had been linked to by other pornographic sites, was also found.

Subsequently several urban councils attempted, unsuccessfully, to use their municipal powers to stop parents photographing on their sporting fields and council beaches. Shortly after Surf Life Saving Australia called for a complete ban on pictures of its 40,000 young members, know as nippers. It said: “its young member can ‘reasonably expect’ privacy — even if they are in public areas — which could be violated with new technology such as camera phones. The organization says passers by should only be allowed to take photographs if they have the written permission of parents. It intends to advise its staff to record the appearance, attire and car registration numbers of anybody they spot breaking this rule.” SMH 5-6/11/05 Subsequently they backed down, but still seemed unaware of the irony of ‘recording the appearance, attire and car registration numbers of anybody they spot breaking their rule in order to protect their own supposed privacy.

This paranoia over photographs of children has led to some extreme examples, such as this article extolling the benefits of private schools, which felt compelled to blur the faces on a stock shot of some generic school children used as illustrative, not an editorial image. Why? How could this blurring possibly protect the children photographed, from what? And since the photograph was not being used for a commercial purpose, was not being used to sell any product (other than the benefits of private education) there was no obligation even for the photographer to obtain model releases.

THE MARK LATHAM EFFECT

Recently many Australian photographers have been physically attacked in public, on the spurious grounds that they were ‘invading the privacy’ of somebody. In the lead up to Mark Latham’s resignation as leader of the opposition police had used anti-gang laws to clear photographers from the front of his house. Later Latham smashed a photographer’s camera after he was photographed eating a hamburger with his children. He pleaded guilty to malicious damage and replaced the camera. In 2005 there were two other cases of photographers being assaulted

Currently there is no right of privacy in Australia. Existing privacy laws only refer to the use of personal data by organisations and government. There is noy yet any such crime as the photographic ‘invasion of privacy’. As Justice Dowd said in a 2001 ruling “A person, in our society, does not have a right not to be photographed”. Nor is the taking of a photograph for the purposes of art, documentation or as a hobby a commercial use, even if the photograph is sold, so the subjects are not ‘models’ with a commercial contract with the photographer. Instead many other laws regulate the area, including the passing-off law, the trade practice laws, trespass laws, stalking laws, defamation laws, offensive behavior laws, apprehended violence orders, confidentiality agreements, contractual laws, and entry regulations for commercial or government premises. So the girls who are suing Denise O’Rourke over their portrayal as the town’s under-age sluts are suing him under trade practice laws, because they are claiming, he entered into a prior agreement with them about the subject of the commercial documentary he wanted to make with them.

However specific anti-photography laws are being bought in. The state of NSW bans photographing a person for the purposes of sexual gratification without their consent in a state of undress or engaged in a private act. Other jurisdictions prohibit taking photographs of private intimate activities in private personal places such as toilets or change rooms— where people might reasonably expect to not be observed

Police have also attempted to stop people using mobile phones on public beaches to take pictures of topless bathers. But so far they have only securing a conviction when one of the people they arrested for offensive behavior under the Summary Offences Act caved in and pleaded guilty. Taking photographs of topless bathers is something nationally celebrated photographers like Rennie Ellis had been doing for decades, so it is the surreptitious networking and ditribution capabilities of the mobile phone that the police found so offensive. There have been a slew of new offensive behavior laws that try to more specifically cover ‘inappropriate’ behavior with mobile phones, covering the surreptitious use of mobile phones in change rooms, or for upskirting. Queensland was the first state to introduce these new laws and they have prosecuted ten people, whereas in Victoria stalking laws were used for one prosecution. The state Attorneys-general have now agreed to review their diverse laws. (SMH 29/7/06)

In September this year an amateur photographer called Jodie snapped a young man at Flinders Street Station in a generic homeless-youth style shot. However he decided not to play the role of a powerless homeless person, but an exotic ‘third world’ subject snapped by a ‘first world’ tourist photographer. He came up to her and demanded $5.00. When Jodie said she didn’t have $5 he demanded the film, when she told him it was digital camera he got even more pissed off. Finally she deleted one photograph in front of him and walked away, with him hurling abuse at her. The other shot she kept, and uploaded to Flickr, but with his face blacked out and a short caption wondering if she had done the right thing and asking for help in balancing her right to free expression with his supposed right to privacy. This photograph replicates a classic colonial relationship between rich powerful authoritative photographer looking down at a generic type who must passively bear the gaze, but only now the face is erased, as an after the fact attempt by the photographer to restore some supposedly violated ‘right to privacy’ to her subject.

Many people in Australia think that there should be a general tort of privacy, and this is following a world-wide trend. The most extreme laws are in France, where the law protects anyone from an intrusion into their privacy, or that of their family. In France it is illegal to print a picture of someone without their permission. But this prohibition against publishing seems to be interpreted by many as a prohibition against photography itself. Police are not sympathetic to paparrazi or photographers generally. The pack of photographers chasing Diana would not have found a legal outlet for their photographs in France, and three of them were convicted of taking photographs inside the wrecked car after the crash.

Kate Moss had no legal grounds to stop the publication of surreptitious image of her snorting coke at a recording studio. But in 2004 Naomi Campbell was awarded the princely sum of £3500 from a British newspaper which photographed her leaving Narcotics Anonymous, the money was awarded under new European Human Rights legislation on the grounds that a photograph of somebody attending NA would damage their efforts a self-rehabilitation. So in these limited circumstances at least, when a photograph is taken on the threshold of a site dedicated to self-therapy, private space had now spilled out onto the street.

Australia is not far behind. By 2005 following the few instances of images of children playing at playgrounds being posted on websites, and the proliferation of camera phones, the Standing Committee of Attorneys General to commission a discussion paper Unauthorised Photographs on the Internet and Ancillary Privacy Issues, it included the statement: “publishing images of a person without their consent removes their freedom to choose how they present themselves to the world.”

Justice Michael Kirby has also argued for that extending the law of privacy in Australia would be consistent with international human rights law, he said “any development of the common law in Australia, consistent with [human rights] principles, should provide effective legal protection for the honour, reputation and personal privacy of individuals. … In recent years, stimulated in part by invasions of individual privacy, including by the media, deemed unacceptable to society, several jurisdictions have looked again at the availability under the common law of an actionable wrong of invasion of privacy.” Aust, 10/7/03 B01

Some also predict that the recent capping of defamation payouts to a quarter of a mere million dollars, and the introduction of truth alone as a defence, rather than truth and public interest, will mean, that there will be a push by the rich and powerful towards stricter privacy laws in Australia.

THE NICOLE KIDMAN EFFECT

The celebrity’s commercial capital is their recognizable face, their desirable lifestyle, and their enviable body. So it is in their interest to regulate and control the production, interpretation and distribution of their image as closely as possible. There are now at least 30 paparazzi in Sydney and they are at war with celebrities. In 1993 Tom Cruise and Nicole Kidman unsuccessfully tried to use privacy as a grounds to stop New Idea publishing images of their daughter Isabella. In early 2005 Nicole Kidman took out an interim restraining order against two paparazzi Jamie Fawcett and Ben MacDonald after she claimed they had endangered her life by chasing her across Sydney at high speeds. The restraining orders were lifted after they agreed to not approach her house within 500metres.

Note that privacy was not the issue in this case. The interim AVO against Fawcett and McDonald was because of harassment, not invasion of privacy, in the words of her publicist they had made her feel “threatened, intimidated and unable to leave her home without fearing for her safety.” But when her wedding rolled around a kind of truse had been established. The paparazzi sang happy birthday to her through her intercom, and she sent out a slab of beer. The value of any of their pictures was planned to be pre-emptively devalued by her releasing an official wedding photograph immediately after the ceremony.

Recently Lara Bingle, the body behind the Australian Government’s latest international tourist campaign, claimed the men’s magazine Zoo Weekly had defamed her by implying that she was the sort of girl who would consent to have revealing images of her posing in a bikini published for the sexual gratification of men in the magazine Zoo Weekly, even though she had clearly approved of the original photographs being taken for a photographer’s model folio 11 months before, but before she became the fresh-faced face of Australia overseas.

In all of the above examples of the war between celebrity and paparrazi laws other than privacy laws were used.

THE Nussenzweig EFFECT

There is now a democratization of celebrity culture. Everybody is potentially a celebrity, however briefly. Fantasies of instant celebrity are enacted in reality TV shows. The world of the celebrity has never been more porous, open to those who have accidentally found themselves heroes in the public eye. For instance, the trapped Beaconsfield miners discussed who should play themselves in the inevitable movie after their rescue (Russell Crowe and Heath Ledger). The settlement of their first TV deal with Eddie McGuirre was delayed because they were locked in a fight with mine management over potentially lucrative video footage and photographs the pair took to aide the rescuers during their confinement. The hours of footage and dozens of photos, which could have been worth hundreds of thousands of dollars as part of a media deal, was held on to by the mine’s managers despite repeated requests from the two men.

So the celebrity logic of the face being one’s own private commercial capital has now spread from actual celebrities to all of the rest of us. In 2001 the photographer Philip-Lorca diCorcia set up his camera above a sidewalk in Times Square in New York, as people walked towards his camera and reached an x taped onto the sidewalk 20 feet below it, he stook pictures of them with a strobe light attached to construction scaffolding. Out of the thousand of images he took he selected 17 for an exhibition Heads at Pace McGill Gallery. Number 13 of the 17 he selected was an archetypal old-style European Jew, an image redolent with the weight of European history. The person who diCorcia had shot was Erno Nussenzweig, a fundamentalist Hasidic Jew from a small sect based in New Jersey. He wasn’t aware that his face had been used until almost four years after it was first exhibited, after it’s edition of 10 had completely sold out at US$20,000 to US$30,0000 a print, and until after it had won the Citibank Prize in London. When he did find out, three and a half years later, he sued the photographer and his gallery. He was seeking US$1.6 million damages for two reasons: that his image was being used for advertising or trade purposes without his permission, and that it violated his deeply held religious belief in the second commandment, thou shalt not make graven images. As his lawyer succinctly put the case: “It’s a beautiful picture. But why should this guy make money off of your face?” But as diCorcia is reported to have replied: “if he is as otherworldly as his face makes him out to be, why would he care?”

The defendants, diCorcia and his gallery claimed that the photographs were art, and were therefore protected by the First Amendment, guaranteeing the right to free speech. The judge agreed with the defendants that the photographs were art, even though they were reproducible photographs and not paintings, because they were accepted as art by the art world. Even though they were made for sale, this commercial use which was necessary to prevent the artist starving in his garret, was ancillary to their art value. As art they were protected by the first amendment. In addition although the court accepted that Nussenzweig was distressed by his religious aversion to graven images, the constitutional protection of the right to practice your religion only applies to actions of the state, not those of other free American individuals.

In the end this was a very satisfactory outcome, and clearly the correct one. But it will probably be only the first of many, and it does indicate a disturbing trend. Clearly Nussenzweig was resentful that somebody was making a living off of his face, and he had sympathisers. He had worked hard acquiring such a symbolic face, his Klausenberg Sect had been almost completely wiped out in the holocaust, and he had spent a lifetime in new Jersey as a diamond trader, now the face that he had grown had been removed from him, without his permission. No wonder his Lord had brought down a commandment against graven images. On the other hand, those who had supported the photographer replied that he had voluntarily gone out into a public space, Times Square no less, perhaps the most over-exposed place on earth, where everything was surveilled not only by CCT security cameras, but by out-of-town tourists taking it all in as the sights of the big city. His face was therefore in public, and part of the common wealth of the street. But nonetheless there is still something predatory about diCorcia’s approach to photography: the hidden camera, and the strobe lights erected on scaffolding that automatically fired when the unsuspecting subject passed within 20 feet of his camera, set him up as the ultimate disengaged hunter.

DiCorcia was photographing a melodramatic urban alienation. He was looking for photographs of faces that concealed rather than revealed. As the essay to the show, by Luc Sante stated: “You can take your deepest conflicts aad darkest designs out of the cell of your bedroom and air them on the avenue. Naturally, if you live in the city, many of your readiest thoughts  will just naturally be conflicted and dark. Even if someone catches you in the act — if an old friend, say, spots you before you see him, or if you are somehow included in a crowd shot that makes it onto the TV news — you do not have to feel vulnerable about looking troubled, since that is the uniform nearly all city faces wear when they walk alone. The look of doubt and worry even has its practical aspect; it can double as armour. It says ‘Go away’ and ‘Don’t ask’, and maybe even ‘I’ve got a gun’.”

This armoured face is the familiar twentieth-century face of street photography. The street photographer is someone who, in Susan Sontag’s words, is an “armed version of the solitary walker, reconnoitering, stalking, cruising the urban inferno, the voyeuristic stroller who discovers the city as a landscape of voluptuous extremes.” Their streets were no utopias, street photographers photographed a fragmented, alienating society, certainly. But at least it was a society. Everybody might have been going in different directions, and avoiding each other’s eyes, but at least they were sharing the same street. In Walker Evans’ photographs of commuters on the New York underground in WW2 the commuters are in their own private bubble, certainly, but their reveries are cradled by the public space of the subway.

Recently however, I think you can detect a change in the picturing of the street, to one where fragmentation and isolation, one person divided from another, is emphasized, as in the work of Phillip Lorca diCorcia, Beat Streuli and Trente Parke.

As part of this tendency the face itself is becoming increasingly privatized, just like public space itself. It is now less something we take with us into a space of public interaction in order to shield us from our equals, our fellow citizens; we now carry our faces into public in a similar way that celebrities have habitually taken their faces into public: it is now our commodity, something we own, something we have carefully grown, groomed and cultivated, something we can always potentially make money off of.

It is interesting that so many photographic interventions are happening to images of the face. At the same time as faces are being jealously guarded by their owners, they are also being erased, blurred by scared photographers. The celebrity face is leading the way here. The logic of the celebrity face is less an assemblage of orifices, the ‘white wall/black holes of Deleuze and Guattari, with which to interact with the world, even if that means screening it our, and more like a logo, a stamped unchangeable rebus of the self, a trade mark always potentially on the verge of infringement.

The logic of the media martyr perhaps follows the same logic as the celebrity. The faces of martyrs, such as assassinated politicians or ordinary people suddenly caught up in great events, become abstracted, commodified and deterritorialized. And in the same way each of us is potentially a celebrity, each of us is also potentially a martyr.

CONCLUSION

So we have a series of effects change street photography. In summary they are the:

THE MALL EFFECT
THE OSAMA EFFECT
THE iPOD EFFECT
THE DOLLY DUNN EFFECT
THE MARK LATHAM EFFECT
THE NICOLE KIDMAN EFFECT
THE Nussenzweig EFFECT

This change has happened in a period in Australia’s history when public space is undergoing unprecedented forces for fragmentation. This is a second narrative in the theory of contemporary public space, which parallels the first narrative of corporate enclosure. This parallel narrative sees the ideal public sphere as a mutually agreed space where different types of people — the young and the old, the poor and the rich, the black and the white — can interact directly, mix, mingle and compete, and at least attempt to come to a mutual accommodation with each other. But it sees contemporary public space becoming a place of segregation and division where, for instance, those with cash in their pockets are allowed in, those without are moved on by security guards. In this new city there is no longer any central space which it is agreed will be shared, rather each neighborhood or precincts is assigned a different class, ethnicity and function and quarantined from the other. This gives an appearance of increased order, harmony and control, until one of those divisions is suddenly breached, and neighbors who have remained strangers to each other meet in rage or riot.

Perhaps the closest thing to the Agora in Australia is the beach, and the Cronulla riots are an excellent example of the way that politics is spatial, and power is expressed through control of public space.

More than ever, therefore, street photography has a vital role to play in this context. Photographers should fight for their rights to freedom of expression in public space. They should fight against the seven effects I have identified. I suggest all photographers carry cards in their wallets outlining their rights and the phone number of a pro bono lawyer. And we should take back the streets.

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