The Right to Privacy versus The Right To Make Art in Germany
The right to privacy conflicting with the right to create art is critical issue for news and street photographers, both amateur and professional. I fully believe in the right to privacy and I also fully believe in the right to create art, which is a pain, because they do not mix well together. The issue is there is no clear cut barrier between the two, as they are totally different concepts instead of opposites.
As photographers in the public space, we are voyeurs hunting for a range of situations, of which the intimate moment out in the open is perhaps the most prized and esteemed. The most touching images in street or documentary photography give us an insight into the lives of their subjects and the Zeitgeist. All of the greats from Cristina Garcia Rodero, Cartier Bresson, Eugene Smith, Graciela Iturbide, to Robert Doisneau, Sally Mann, André Kertész, Robert Capa or Vivian Maier created street images that are perceived as cutting through facades and giving an eloquent insight into the lives of their subjects and society. The current trend could see such street photographers caught up in court cases for years by any unhappy subject that happens to be identifiable in the image, regardless of how great, innocent or banal the image might be.
Then again, we all should have the right to protect our personal image and what happens to pictures of us.
The Eichhöfer Case
In May 2013 Espen Eichhöfer photographed a woman on the street in the Berlin district of Charlottenburg. It was not a particularly significant, alarming, or good image in my opinion (understatement of the year) but it was later displayed in front of the C/O Gallery as part of an exhibition by the Ostkreuz Agentur. The woman in the picture recognised herself and subsequently sued the photographer and the C/O gallery for damages (circa EUR5,500) on the grounds that her right to privacy had been breached, and no permission or licensing rights to her personal image had been obtained, agreed to, or paid for. She was denied compensation in the end, but the Berlin courts ruled that her right to privacy had been breached, opening the doors to similar law suits in the future.
As far as I understand, I have tried to summarise the arguments put forward in this case.
Arguments for the right to privacy:
- Everyone has the right to decide what happens with their personal image
- The photographer did not ask for permission to take the lady’s picture
- The lady is clearly identifiable in the image
- The lady is not famous, newsworthy, or of public interest in a journalistic sense
Arguments for the right to photograph in public:
- The lady was in a public place – a well known street in the district of Charlottenburg
- The photographer was on public ground, not subject to photographic limitations in Germany
- The street photographer was creating art, for which there is a long standing legal right
- The image was not specifically taken for commercial purposes
The end result of the ruling is that anyone recognisable in a photograph needs to give their explicit permission before an image is published. In street photography, particularly where there can be many people in any given frame, this task is virtually impossible. The ruling is being disputed, thankfully, and we will have to wait and see what the outcome is, but should it stand, the outcome would be a very bad omen for street photography. Having said that, with the avalanche of media being produced and published every day through Instagram and other social media, effective policing would be impossible, and the chance of being sued remains miniscule.
Caveats of the ruling:
- There is still no definition of how identifiable someone needs to be in a picture for it to count. The current rule of thumb is if a group of friends would recognise the person. This arbitrary rule depends on a million variables including how big they are in the picture, how many other people are in the picture, how in focus they are, and how large the print is.
- There is no definition of where publication is allowed. Apparently the image would have had more protection if it had been exhibited inside the gallery rather than on the street outside. This means nothing in the virtual world.
The best ways to protect yourself as a street photographer:
Common sense is always the best approach.
- Take respectful images and think about whether you would like to be photographed in such a situation, and how you would feel if someone published such a picture of you.
- Carry around a bunch of waiver forms including all possible outcomes for your images, and have everyone you photograph sign one. A daunting task, and often impossible, but the most legally watertight protection. If someone says no, that is fine, deal with it and move on.
- If you don’t have a form, simply asking subjects if you can use the picture will usually work too. If someone says no, that is fine, deal with it and move on.
- Quickly respond to any person who has a complaint about your image. Communicating directly and finding out people’s concerns and reacting to them is far better than a law suit.
- Get legal insurance.
Some buildings and trademarks are copyrighted, and some privately owned but publicly accessible areas such as parks or train stations can also have restrictions which could land you in hot water, so always ask or do your research. Laws are different in the case of newsworthy situations or people of public interest and are the realm of a different and equally important discussion.