Street photographer’s nostalgia – part 2: Privacy in public

Espen Eichhöfer, a German street photographer, was sued by a woman who was the object of one of his pictures and – (spoilers!) – she won. Kind of. The discussion that surrounded the case, has been rather one-sided: “OMFG, freedom of art! The future of street photography is doomed in this country!” In news media, blogosphere and social networks hardly anyone cared about the woman’s position. As things never are that simple I got curious and started a bit of reading and got drawn in. The disputes around street photography make tensions visible that have risen with our increasingly surveilled and digitally augmented lives. While some street photographers argue that the laws for our right of publicity is dated, it could actually be them who are.

I will post some humble thoughts on a few aspects of this huge topic in a 3-4 parts series this week as it got too long for one. This is the second part. (Part 1 is here.)
(German version here. Photos by me.)

streetphotographersnostalgia-pt2-1 Privacy in public

Let’s take a closer look at the verdict of the Eichhöfer case in which many German papers and blogs have seen the end of street photography dawning. The verdict says that even though the plaintiff was in a public space while the picture was taken, she obviously was in a purely private life situation (meaning: not as part of a big crowd in a public event, like a street festival, protest or sports event). It has been ruled that in this case your privacy, your right of publicity, deserves protection even if you are aware that as soon as you enter public space you potentially could be under some kind of media surveillance. (BGH v. 17.2.2009, VI ZR 75/08, juris Rn. 13) The reason the judge gives for his decision is: It would mean a considerable constriction of your right to free development of the personality if you can not move uninhibitedly in public just because of the possibility that you could get photographed without a possibility to say no. As the lines between the photo’s function as art, documentation and advertising are blurred, I think it is important to mention that the verdict does not argue this point about the picture in the gallery’s art context but because the woman was presented larger than life-sized on a poster in a big busy street to a broad public and thus got torn out of her anonymity against her will.

I understand that photographers are not happy with this decision but I actually consider it fair. The consideration “in a purely private life situation” shows respect for contextual integrity and cares for consent. It expresses that even if you opted in to this state’s terms of service by living here, you get a chance to fight back if someone abuses their freedom to potentially hurt you. To decide something like this does deserve a careful singular decision instead of the general fair game rule in favour of street photographers. That would be nothing but an “if you do not like to be photographed, simply stay at home” middle finger straight in every citizen’s face.

“Public” as in “deanonymized”

In urban space, the default setting used to be anonymity.  That was an important factor of what generations of young folks were looking for when they left rural areas for the big cities. The power to chose who gets to know us and who doesn’t. The sweet scent of freedom to explore that anonymity promises. Before social networks and smart image search engines fleeting recognizability on a street photograph wouldn’t have mattered that much. Today we no longer are a crowd but we are a lot of singular faces that can be identified by some software. Of course the more people get tracked and surveilled, the more they long for anonymity. That is why I think the verdict in the Eichhöfer case was fair: This was not about “public vs private” as in “crossing a public street vs sitting in a living room” (as the street photographer’s and their advocates want to make it look). This was about “public” as in “deanonymised”.


Nostalgia for the silence of the common people

The digital augmentation of our lives of course brings about a new jungle of rights and wrongs, and it is hard to appropriately readjust laws in the middle of those big changes. As Sixtus writes, in street photography it has led to a kind of legal vacuum. It has a lot to do with people finally realizing that online and offline just as private and public are deeply interwoven. If you post a picture from your bedroom on Facebook – is it private or is it public? Does it depend on who took it? Or under which privacy setting it was posted, as Facebook wants you to think? Or on the context in which it was taken? Sixtus laments, that, as laws are getting increasingly complicated, people turn to “esoterics”. I would strike “so er” from “esoterics”, buy an “h” and solve to apply the term “ethics” instead. Ethics have a “felt truth” quality and are build on a societal consense and change easier than laws. They are more fluid than laws but to belittle them as esoteric does not do them justice.

To exploit legal inclarity for a “can do, will do” behaviour and shrouding it in “freedooom!”-blurbs that would make Mel Gibson look pale, reminds me of the cyberspace wild west romance talk you hear from the old tech elite about a golden age of the internet. They seem to be similarly blind to systemic injustices and inequalities. Street photography never has been unproblematic, it’s just that now we are at a point at which its objects’ voices get heard, too. Street photographers and journalists complain about those pesky people who once were quiet audience or honored to be objects of their work. This nostalgia for their past authority, as gatekeeper and as experts who are the only ones who know how to catch the world in a picture as it “really” is, is nothing but nostalgia for the silence of the common people. If I have learned one thing from reading articles and blog posts for this piece here it is: Street photography is far more about narcissism than selfies could ever be. It is not about what you see on the photo, it is about what its purpose for one’s status is.


Public space has changed

We are still at the beginning of the digital revolution, especially in Germany with all its technophobia. It doesn’t exactly help that street photographers and journalists who both make up a part of the digital elite are trying to set their status quo as new norm while there are still so many out there who don’t trust new tech (yet) because they are scared of surveillance and big data. Street photography has a lot to do with those fears and this longing for privacy but it does not like taking them serious. “Today, photography – and street photography in particular – is a contested sphere in which all our collective anxieties converge: terrorism, paedophilia, intrusion, surveillance. We insist on the right to privacy and, simultaneously, snap anything and everyone we see and everything we do – in public and in private – on mobile phones and digital cameras. In one way, then, we are all street photographers now, but we are also the most-photographed and filmed global population ever”, writes Sean O’Hagan, not getting beyond “public” and “private” as oppositions. Putting the wish for anonymity on a level with censorship, Sebastian Graalfs, Espen Eichhöfer’s lawyer, says: “It is also about the question if this society still allows a public space in which art – for example street photography – can take place. Or if this public space gets atomized into a million little spheres of privacy. That would be the unleashing of an almighty privacy-censorship that would make this kind of exhibitions and a whole genre of art impossible.” Georg Diez registers a “rising hostility towards [street photography as] art, a distorted image of the public that is garnished with distrust, and the extension of the private until it usurps even the last street corner. The city as a stage disappears in this argumentation, the idea of the street as a place of equality, visibility, every day life, social reality, the writing of history, memory, art, it disappears.”

What they seem to forget is that the city as urban public space already has lost a lot of these qualities due to surveillance, commercialization and forceful urban planning to make some city-as-a-brand vision come true. Cities are increasingly becoming standardized for global consumerism and the public space does no longer resemble the romantic picture of an open zone for social interaction and local developments. People’s distrust has risen for reasons. As the architect Selena Savić writes in an essay on defensive architecture: “contemporary urban space is becoming micro-zoned for singular use-scenarios only. … Ultimately, unpleasant design or defensive architecture doesn’t defend us from real threats: a systematic decay of privacy and anonymity in public interactions; overall surveillance and tracking; misuse of meta-data and other types of private information; structural threats to civil liberties through coupling of private interests and weak public institutions. These are the real threats to our society today.” This is the public scenario the street photographer enters today and to the changing realities of which he simply has to adapt, just like everyone else.

If at all, street photography is endangered by its democratization. More about that tomorrow.


Street photographer’s nostalgia – Part 1: Street photography fought the law

“My best pictures have always been those that I have never made.”
Elliot Erwitt

Espen Eichhöfer, a German street photographer, was sued by a woman who was the object of one of his pictures and – (spoilers!) – she won. Kind of. The discussion that surrounded the case, has been rather one-sided: “OMFG, freedom of art! The future of street photography is doomed in this country!” In news media, blogosphere and social networks hardly anyone cared about the woman’s position. As things never are that simple I got curious and started a bit of reading and got drawn in. The disputes around street photography make tensions visible that have risen with our increasingly surveilled and digitally augmented lives. While some street photographers argue that the laws for our right of publicity is dated, it could actually be them who are.

I will post some humble thoughts on a few aspects of this huge topic in a 3-4 parts series this week as it got too long for one. This is the first part.
(German version here. All photos by me.)

streetphotographersnostalgia-pt1-1, photo by eve massacre

Street photography fought the law

In Germany the right of publicity cares more about protection of the photographed than in a lot of other countries: Instead of a “public is public” law people have the right to decide if and in which context pictures of them get published. As Andrea Diener explains, it gets decided in individual case assessment wether the value as historic document or as piece of art outweighs a person’s right of publicity or not. In a recent blog post Günter Hack condemns this right of publicity as “nemesis of any street photographer”. To him and others it seems obsolete and inappropriate today because it is from another historic context. Sixtus writes, that this right is “from a pre-digital time, from an era in which ‘publication’ of a photo meant ‘newspaper’ or ‘magazine’, when it was the exception and not the rule. From a time in which not every person had a photographing machine with build-in publication button in their hands permanently.” This art copyright act (Kunsturhebergesetz) indeed is based on a case from back in 1889, when two paparazzi photographers bribed someone to get the chance to take pictures of the dying Reich chancellor Otto von Bismarck.

The discussion about the dos and don’ts of street photography has heated up in Germany when a few months ago a woman sued a street photographer for displaying a picture of her. A lot of newspapers and blogs have written about it, twitter had people in OMFGs. The photographer, Espen Eichhöfer, had snapped her without her knowledge and put her picture up in a gallery. The picture is said to show her as dominant part of a street scene, rushing over the street in front of a pawnshop. Eichhöfer took her picture down when she complained, but she still sued. While she did not get compensation, the judge did rule that the photographer has violated her right of publicity and has to pay the costs for the lawsuit. This caused an outcry from photographers, art and media folks who are worrying for nothing less than the freedom of art and documentation of public spaces: they fear for the future of street photography. Eichhöfer got a lot of publicity (including a VICE article written by himself) that helped him to crowdfund an appeal to the next higher authority, the Federal Constitution Court (Bundesverfassungsgericht). He wants a judgement that establishes a principle against the “criminalization” of street photography. His aim was to raise 14.000€, he has raised 18.000€.

Another case that got a heated discussion, was the “Lex Edathy”, a change of law that – in rather vague phrasing – criminalizes it to make or spread an unauthorized photo that could be used to harm the pictured person’s reputation. This of course raised complains because this phrasing could be abused to make critical photo journalism impossible.

streetphotographersnostalgia-pt1-2, photo by eve massacre

For the freedom of art

Eichhöfer sees himself in the tradition of artists like Henri Cartier-Bresson, Garry Winogrand or Robert Frank:” My photographs have been made in this tradition, they capture spontaneous everyday situations, that happen unstaged in front of the camera. A well-made street photography is a compression or intensification of life on the street, in the best case it is a document of time, a part of collective visual memory.” This kind of documentation in his eyes is far more meaningful than the depicted person’s wish, even if he says he understands that some people do not want their photo publicly displayed.

The street photographers’ sorrows are easily summed up and they pop up in many discussions in blogs all over the web. Here are some that Sixtus has written about:

  • It is technically impossible to ask every person in the street for their permission.
  • Even if it was possible to ask people for permission, most of them still wouldn’t do so because it would destroy the documentary aspect of the picture: As soon as people know they get photographed, they change their behaviour and the picture would no longer show an authentic scene.
  • Today everybody has smartphones and takes and shares pictures in public all the time.
  • Taking and sharing pictures has become like communication, hence to ban photographing means banning communication.

Günter Hack added the surveillance argument:

  • There is omnipresent commercial and state surveillance, criticize them first because they could harm you more and they have helped normalizing this situation. Why should a citizen have less freedom to document people’s lives than the state?!

For the freedom of omission

While not disagreeing with many of those points, it somehow bothered me that I only came across articles that were on the photographer’s side. The woman who had sued Eichhöfer stayed a mute object in a public discussion that had headlines like “Who owns the face of the woman in the leopard coat?” for articles that seemed to only care about the opinions of curators, street photographers and Eichhöfer’s lawyer. Things never are that simple and I got curious and started a bit of reading and got drawn into this subject. Most of these articles and even Eichhöfer’s crowdfunding pledge only speak of the version of the photograph that hung in the gallery. In Jörg Heidrich’s text though, I read that this picture was also used for the larger than life-sized poster that was used to advertise the exhibition. That led me to skim the actual verdict (available here) and it does mention another detail: The photo was also visible on the gallery’s Facebook page.
Those details got left out of most people’s pieces on this subject.

I think it matters, as it means different contexts and different nuances of publicity. In a gallery you discuss it as work of art in an art context. On a huge poster on a public street it is used in an advertising context and also deanonymizes the woman far more. With her picture ending up on a public facebook page, her face is a target of facial recognition ware. That could help finding other pictures of her and it could be used to track information about her. To paint this in proper digitally augmented world’s colours: That she was pictured in front of a pawnshop could lead to a slightly worse credit report for her. She could get trolled for wearing fur. She could hide from an abusive former husband and the picture could help him track her down. And as the saying goes: what’s uploaded to the web is there forever, so the possible future consequences can not be foreseen. Yes, I am exaggerating but then so do all those pieces that act as if the woman’s perspective doesn’t matter at all. With those possible consequences considered I would say that the right of publicity in its german version might be from pre-digital times but especially in its single case assessment approach it does not seem so inappropriate to  me.

streetphotographersnostalgia-pt1-3, photo by eve massacre

It takes balls

The story of the ease with which social photography has become so widespread in many parts of the world is the story of the dominance of the social groups who have least to fear from being photographed. Their voice also shapes the media discourse about it. People who reject being photographed in public are considered vain and the tone as well as the content of most german articles I have found about the Eichhöfer case shows no sympathy for the photographed woman. It’s all about the photographers: They need freedom to do what they want because they make important art and important documentation work for the sake of humanity. Meike Laaf worries about the self-censorship of those important artists without acknowledging the self-censorship that it can mean for their objects: “Dance as if no one was watching” has become “don’t leave your home if you are not okay with someone taking a picture of you that singles you out and puts you on huge public display”.

“To be a street photographer today, you need ‘obsession, dedication and balls”, the street photographer Martin Parr once said, and indeed it seems to be quite a masculine sphere if you look at the tone in which the photographed get described. Eichhöfer shames the effort of people like the woman who sued him as “hysterical”. Günter Hack calls them “self-appointed victims”, and he mocks them: “I don’t steal little souls, my dear, fragile natives, I am only interested in how the light hits animate and inanimate bodies”. As if a photographer was less self-appointed in his claim for the right to intrusion, to acquisition. As if the fear of one’s soul being stolen was not actually a good metaphor for the fear of being shamed, outed, trolled, stalked, etc. Sixtus also mocks the possible objections of his objects sarcasticly, this is one of the subtitles for a picture he uses in his text about street photography being doomed: “I guess this lady also didn’t want to be photographed. At least I think so according to her expression. In the service of art I have ignored her wish.”

Sixtus goes for the “everybody does it” argument and points to the omnipresence of digital social photography, the future omnipresence of life-logging and Google Glass. He ignores that this is not (yet) the reality of everyone around him. As it slowly becomes reality, more and more people start getting sensitive and long for new definitions of what is acceptable.

To be continued.