FNA Presence Documents

First published in:  Documentary Across Disciplines, Edited by Erika Balsom and Hila Peleg

As you remember, nitrocellulose can be used to make either bombs, like the anarchists, or roll film, like the Viennese police. Between these two barrages, the anarchistic and the photographic, the human as collective individual explodes.

Friedrich Kittler[1]

This essay is a proposition. It is located between the two concepts of privacy and publicity rights – every individual’s right to their own image and their protection against its commercial use. Its main focus is on the image economy of photojournalism and the position of the photographed subject therein. Does the subject have any rights over his or her image? How do these rights affect the production, exchange, and circulation of a person’s image? In response to the photograph’s universal claim to show the plight and joy of humans to humans, is it possible to imagine an economy administered and regulated by a universal legal structure? How can such a “law of images” contribute to creating a more just visual culture vis-à-vis the common image of humanity?

***

Every image has a material foundation, and so every image is matter. Aesthetics discusses the surplus of the image, that which makes it beautiful or sublime, or which makes it cute, interesting, poignant, affecting, chilling, or any other kind of adjective used to describe how an image generates an emotional or intellectual response in the viewer. But an image is also a point in a series of material relations and is a part of an economy – what we can call an image economy. This includes an interconnected and diverse network of producers and consumers, distributors and mediators. From paintings and drawings to etchings, photographs, and digital images, all rely on a material infrastructure that is propelled by an industry, economically sustained and managed. In the case of painting, we can think of a chain of materials including the canvas, the pigments, the finish, the paintbrush, the stretcher, the frame, etc.; all those who manufacture, distribute, and sell these products; and also the painting itself as an object that is produced and traded in a marketplace with its own infrastructure and material foundation. This notion of the material foundation of the image goes back to the birth of art history and Pliny the Elder’s Natural History. Writing in 77 A.D., Pliny, as Georges Didi-Huberman explains, proposes a juridical and material conception of the image. Painting was no more than a “material process to be used in finishing the wax molds of the faces of the ‘ancestors.’” This process was to achieve extreme likeness. The image also, in advance of any art historical notion, was understood as a “molding of resemblance destined to legitimize the position of the individual in the genealogical institution of the Roman gens.”[2] The materiality of painting as a process to create likeness was paired with a ritual of private law that maintained the legitimacy of the halls of ancestors.

Photography also has an expansive material and industrial foundation, one that ranges from the producers of silver emulsion and celluloid to all the minerals extracted from mines; from the chemicals used to develop and fix the image to all the devices and machines used in the lab; from the paper to all that is required to produce and make it available; and, of course, the camera itself. Photography was enabled by the industrial mode of production and came of age as the economic condition of industrialism became the dominant mode for the production and distribution of goods. Photography is, then, perhaps both a symptom of and metonym for the commodity form. Théodore Maurisset’s lithograph La daguerreotypomanie (Daguerrotypomania, 1839), created only two years after the invention of the technology, shows how a whole economy and way of life was set in motion by the heliocentric image industry of photography. Every human activity is subsumed under the photographic image: every store becomes an image store, every spectacle becomes a photographic subject. All performers, from the tightrope walker to the juggler, become images of themselves. As historian of photography Roberta McGrath suggests, Maurisset “depicts photography as a commercial product and a microcosm of industrialisation itself.”[3] With photography, mechanical production expanded beyond the walls of factories and became available to consumers en masse. In the center of the image stands the Susse Frères’ commercial showroom. Cutting the image in half, it suggests that the photographic studio has become a site of production, situated at the Human actions, the lithograph suggests, are seemingly performed for the photographic image. William Henry Fox Talbot’s photograph Carpenter and Apprentice (1844), which shows two men sawing, paused mid-action, serves as a great example of how the world posed for photography and, as image production accelerated, started to spin to its pace. The camera on top of the studio in Maurisset’s lithograph is also a clock, perhaps commenting on the synchronization of time, life, and labor that occurred with the introduction of the camera.

The image is a site of convergence for all these vectors. It is what becomes visible to the eye – an opening, a window to the world, but one that is built out of its own material architecture. It is said that an image covers or conceals what it is made of, but no more than any other commodity, no more than a table conceals a tree. It is clear that there is a vast network of economic and social relations that inhere in the production of an image. The photographer is only one of the many parties involved in this economy, all of whom possess various degrees of investment and profit. The photographer is a consumer and a producer at the same time, similar to the workers in the silver factory or the owners of the photo lab. All parties consume images, as well as other commodities that contribute to the production and delivery of photography. Thus regardless of the aesthetic discourse, which analyzes the perception of the image by the senses and the mind, every image is a metonym of economic and social networks of production.

As Talbot’s Carpenter and Apprentice and Maurisset’s La daguerrotypomanie suggest, from the outset one of photography’s main concerns was the depiction of everyday life. While the technology at first required the staging of human life for the camera due to extensive processing time, with the arrival of the Kodak box camera in 1888, life’s fleeting moments were captured instantly. The camera penetrated all aspects of life from the living room to the battlefield, from farmlands to mortuaries. It was the camera that placed death back into the stream of life, at a time when modern institutions were sweeping it away from the everyday.

Photography’s ability to capture moments of danger gave rise to the discipline of photojournalism, which captures and distributes images of people in the face of natural and manmade disasters. Included are those photographed knowingly or unknowingly, whose lives are threatened by outside forces, who are about to vanish, or who are stripped of the material, cultural, social, and political layers that protect the lives of human beings. They are exposed to the gaze of strangers. These images use the photographic claim to objectivity to communicate to viewers something that they would otherwise not know about – that is, the pain and suffering of other human beings in another place and another context. Yet, in addition to the dire living conditions depicted, many such photographs represent economic deprivation, a condition outside or on the margins of the economy. Starving children or encamped asylum seekers are not only deprived of many basic human needs such as food, clean water, and shelter; they are further deprived of the possibility to decide how they are to be represented. These people are, in the etymological sense of the word, “exposed”: they are left without shelter or defense, while also being exposed to the camera. The moral and ethical conditions of photojournalism have been discussed at length by scholars and academics: what are the respective roles of the photographer and the viewer in this scenario? What are their moral obligations and what are their responsibilities? What are the rights to one’s image and how can these rights be established, protected, and, if necessary, defended?

Legally, the protection of one’s image or likeness falls under the categories of privacy and publicity law. As Susanne Bergmann explains, the latter is a concept originally rooted in the right to privacy and developed to protect the commercial interests of celebrities. The right to privacy safeguards against “injuries to a person’s dignity and state of mind, measured by mental distress damages,” while the right to publicity aims to protect the potential commercial exploitation of a person’s identity, image, and likeness and thus can be compared to property rights.[4] In the United States, the first to discuss the notion of a right to privacy were Samuel D. Warren and Louis Brandeis, in their seminal 1890 Harvard Law Review article “The Right To Privacy.” Chronicling various laws put in place to protect the individual – from the right to life and property to the regulation of nuisance and libel – they discuss “the right to be left alone,” particularly in the face of rapid technological developments. They write, “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life[…]. For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons.”[5] Similar discussions take place around the same time in different parts of the world. Friedrich Kittler, for instance, talks about a 1902 German Reich law granting citizens rights to their own image that “protects them against the misuse of photography.”[6]

Yet cases concerning the right to self-representation are mainly considered through publicity rights. In the United States and elsewhere, such cases focus mainly on the financial interests of the photographer or publisher and whether the subject has any rights to profits incurred by virtue of being depicted in the image. The subject’s property – his or her image, likeness, or personality – is not by default protected by a governing legal body that has established a distribution model for such profits gained; rather, it is only upon filing suit that the court will decide if any violation has occurred and, if so, what kind of remuneration will be awarded.

The first publicity rights case that was brought to the United States Supreme Court involved the 1972 television broadcast of a performance by Hugo Zacchini, a “human cannonball,” at the Geauga County Fair in Burton, Ohio. Zacchini’s fifteen-second act aired in its entirety on WEWS-TV in Cleveland, a subsidiary of Scripps-Howard Broadcasting Company[1]. Zacchini sued Scripps-Howard, alleging that the local reporter “showed and commercialized the film of his act without his consent,” and that such conduct was an “unlawful appropriation of plaintiff’s professional property.”[7] He argued that airing the performance in its entirety would reduce attendance and result in a loss of revenue. In 1977, the Court reversed the Ohio State Court’s initial decision in favor of the broadcasting company, referring to the First and Fourteenth Amendments of the Constitution, and citing that, “Amendments do not immunize the news media when they broadcast a performer’s entire act without his consent.”[8] Yet, in most cases, the two mentioned amendments generally grant immunity to the defendants in suits concerning privacy and publicity rights. The protection of freedom of speech and thus of artistic expression makes it difficult for plaintiffs to claim any rights to their images. Therefore, the right to privacy stands in conflict with the right to expression and is generally considered a less defensible kind of freedom unless it involves a large enough commercial violation for it to be considered by the higher courts. For example, in the case brought by Erno Nussenzweig, a retired diamond seller, against photographer Philip-Lorca diCorcia after appearing without consent in one of the latter’s images, the New York Supreme Court held that the photographer could display, publish, and sell street photography without the consent of his subjects. Nussenzweig claimed that the photographer had violated his right to privacy – as his lawyer put it, his client “ha[d] lost control over his own image” – but the court sided with the defense’s argument that freedom of artistic expression is protected under the First Amendment of the Constitution.[9] Thus, as Warren and Brandeis noted more than a century ago, unless there is a legal injury, unlike Roman law our system does not account for mental and emotional injuries: “However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is dannum absque injuria [loss without injury].[10]”

While Nussenzweig’s “dignity” was invaded, Florence Owens Thompson felt ashamed by the photograph of her that was taken by Dorothea Lange during the Great Depression.[11] Hired by the Farm Security Administration (FSA), Lange travelled across derelict American landscapes to document the plight of the poor and displaced. In March 1936, Thompson and her family set up a temporary camp in the Imperial Valley in southeastern California after their car broke down near a pea-pickers’ camp. Lange visited the camp and took a number of photographs, one of which became the Migrant Mother (1936), an iconic image of the Great Depression. Yet, years later, in a story reported by the Associated Press in 1978, Thompson expressed how she was exploited by Lange’s portrait: “I wish she hadn’t taken my picture[…]. I can’t get a penny out of it. [Lange] didn’t ask my name. She said she wouldn’t sell the pictures. She said she’d send me a copy. She never did.”[12] In a CNN interview, her daughter Katherine McIntosh said of the photo, “We were ashamed of it. We didn’t want no one to know who we were.”[13] This is yet another example of unaccounted for commercial and emotional injuries suffered by a photographed subject with no rights over her image’s circulation and exchange.

Departing from Warren and Brandeis, in 1964’s “Privacy as an Aspect of Human Dignity,” Edward J. Bloustein proposes that the issue of privacy should be regarded as a dignity tort. He argues that,

the harm caused [by the violation of privacy] is not one which may be repaired and the loss suffered is not one which may be made good by an award of damages. The injury is to our individuality, to our dignity as individuals, and the legal remedy represents a social vindication of the human spirit thus threatened rather than a recompense for the loss suffered.[14]

Bloustein argues that if the Fourth Amendment protects the privacy and thus the emotional and mental tranquility of the individual against government intrusion, the United States does have the legal tradition to protect such rights in civil cases involving similar issues.

Yet every day, the industry of photojournalism produces numerous images documenting human life and distributes them across the globe in newspapers, websites, and other news media outlets. Most of these images are produced without the consent of their subjects by professional photographers and, with the rise of citizen journalism, an increasing number of amateurs. The claims that these photographs make are similar to those made by The Family of Man, the 1955 exhibition at Museum of Modern Art in New York. Curated by Edward Steichen, the exhibition featured “subjects pertinent to all cultures, such as love, children, and death.” It “focused on the commonalties that bind people and cultures around the world” and served “as an expression of humanism in the decade following World War II.”[15] In the words of Dorothea Lange’s open letter to photographers of the world, this exhibition attempted to “show Man to Man across the world[…] to reveal by visual images Man’s dreams and aspirations, his strength, his despair under evil. If photography can bring these things to life, this exhibition will be created in a spirit of passionate and devoted faith in Man. Nothing short of that will do.”[16] The same appeal to human dignity is used both in defense of and against photography’s depiction of the individual in the face of life and, ultimately, death. For instance, in “One Image Right Can Sweep Away Another,” Jacques Rancière notes that genocide and other kinds of human atrocity deny a “primary ‘right to the image,’ prior to any individual’s ownership of his/her image” which he calls “the right to be included in the image of common humanity.”[17] Referring to two proposed bills in France – one prohibiting the publication of images of crime suspects wearing handcuffs and the second prohibiting the publication of image of individuals in “situations that undermine their dignity” – Rancière laments the commercialization of the human image via the proposed publicity laws.[18] He argues that this direction of the law will eventually restrict the representation of the underprivileged who are already lacking representation in the political sphere and as such will also become less visible in the visual sphere. But the question still remains as to whether or not the representation of those in “undignified” conditions improves the “image of common humanity.”[19] This image, which represents all humans regardless of their race, ethnicity, class and geographical location, is an abstract and impersonal construction, independent of any particular representation of a human being under inhumane conditions. It appears that the suffering and the most vulnerable are also the most immediate candidates to represent humanity as an abstraction, while the better off have more power over their representation. In Regarding the Pain of Others, Susan Sontag questions the construction of this common image on the back of the underprivileged and interrogates how all but a privileged few are subsumed under this image as representatives of their occupations, ethnicities, and plights.[20] The image of Aylan Kurdi, the drowned Syrian boy washed ashore at the threshold of the fortress of Europe in September 2015, is not a mere contribution to the common image of humanity. Kurdi’s image, like thousands of similar photographs, needs to be measured against this common image, as it represents what needs to be prevented at all costs.

Everyday, as Maurisset anticipated, millions of images are produced, circulated, and exchanged. Recent technological advancements have shortened the gap between the production and reception of the image, rendering it nearly immediate, in what seems to be the livestreaming of life. New media, with its accelerated rate of transmission and its real-time immediacy, has created a new visual landscape in which image-making carries some of the attributes of speech, as the subject and its photographic representation can occupy the same physical and temporal space. We have arguably entered an age of photographic literacy, as virtually everyone – from a boatful of refugees to tourists in world financial capitals – carries a device that is able to document every fleeting moment.[21] Yet, we still lack a legal infrastructure – beyond copyright – that defines and distributes the rights of the various agents involved in producing and distributing journalistic images. How can one define one’s own conditions of representation in the image economy of a visually saturated post-digital world?

Bloustein notes that we have the legal tools to resolve the notion of the individual’s privacy rights, including the right to one’s image. The question then becomes: what kind of framework, internationally and locally, needs to be developed to implement such a legislative body?[22] Tracking down and identifying every person photographed seems draconian and perhaps impossible. Yet if such rights were chartered and defined, photographic subjects would have the possibility to refer to the legal system and make claims. These claims could be evaluated in a court of law, via clearly defined channels and according to regulations that are agreed upon in international legal systems. What is the subject’s share in the image economy of photojournalism, and how can his or her image be legally circulated? How can the subject (or their legal guardians or heirs) as the owner of their image be legally remunerated proportionate to the commercial value of the photograph? How can one imagine a “law of images” as a “juridical space on the boundary of public and private law?”[23] This is Pliny’s concept of the image, explained by Didi-Huberman as “evaluat[ing] images as just or unjust, legal or illegal.”[24] This concept of the image is one prior to the separation of ethics and aesthetics, unlike the modern discourse on images that insists on such boundaries. A law of images and the subsequent judicial space can provide a legal framework for the representation of every individual, even if it is defined and operates within capitalist social conditions. These laws will regulate the production and circulation of images and provide a pathway for the photographic subject to pursue rights to their own image and its conditions of representation. The sphere of representation is one that operates within the totalizing apparatus of the spectacle. In this sphere, to divert Pliny’s discourse, the concept of the image is one of material and juridical foundation. Therefore, the struggle for representation is guided by and relies on this foundation to be operative. The negation of this sphere as a whole due to its total recuperation under the current dominant social and economic condition does not dismantle it, but rather contributes to the elimination of the underrepresented.

But the image, following Giorgio Agamben’s formulation in the essay “On Potentiality,” becomes visible against its absence; it puts itself forth through darkness into visibility. We can imagine representation and spectatorship as potentiality. “If potentiality were, for example, only the potentiality for vision and if it existed only as such in the actuality of light, we could never experience darkness”; but since we experience darkness, we therefore have the “potential not to see, the possibility of privation.”[25] The image economy of photojournalism belongs to the potentiality for vision; it is in the scope of the visible and representable. It falls and functions under the spectacle and is governed by the latter’s rules of production, exchange, and circulation. The common image of humanity is an invisible, negative image, but one that is measured against the visible, against images of the pained and the suffering. Yet, this does not imply that the rights of the latter need to remain unrecognized and unaccounted for. It does not mean that we can abandon the conditions of representation within the current legal and economic apparatus. The subject needs to be redeemed from representation, yet occupy its position within it. It needs to surpass being reduced to an example or mere evidence of human suffering, while at the same time interrogating the conditions that create such states of agony and pain. The image violates that which it represents, existing as a battleground through which the subject becomes visible and simultaneously turns into an abstraction.

Perhaps one can think of privacy rights as the negative double of publicity rights in the totalizing movement of the spectacle: if one can imagine publicity rights as every individual’s rights to their image within the contemporary image economy, the right to privacy is the right not to be represented as such, the right to belong to oneself, to be left alone, set apart, to not belong to the state or the market. It is, to borrow from Agamben, a right to privation. This right to privation is what makes up that abstract common image of humanity and belongs to the aspect of the image that Pliny calls dignitas. This common image needs to be uncompromisingly and constantly constructed, reviewed, and re-imagined – against its totalizing other.

[1] I first learned about this case from artist Kobe Matthys

[1] Friedrich A. Kittler, Optical Media: Berlin Lectures 1999, trans. Anthony Enns, Cambridge, UK: Polity, 2010, p. 145.

[2] Georges Didi-Huberman, “The Molding Image: Genealogy and the Truth of Resembelance in Pliny’s Natural History, Book 35, I-7,” Costas Douzinas and Lynda Nead, eds., Law and the Image: The Authority of Art and the Aesthetics of Law. transl. Peter Goodrich. Chicago: University of Chicago Press, p 78.

[3] Roberta McGrath, Seeing Her Sex: Medical Archives and the Female Body. Manchester: Manchester University Press, 2002, p. 148.

[4] Susanne Bergmann, Publicity Rights in the United States and Germany: A Comparative Analysis. 19 Loy. L.A. Ent. L. Rev. 479 (1999). http://digitalcommons.lmu.edu/elr/vol19/iss3/1

[5] Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy [The Implicit Made Explicit],” Ferdinand D. Schoeman, ed., Philosophical Dimensions of Philosophy. Cambridge, MA: Cambridge University Press, 2007, p. 76.

[6] Friedrich Kittler, Optical Media, p. 144.

[7] Zacchini v. Scripps-Howard Broadcasting Company, 433 U.S. 562 (1977). http://law2.umkc.edu/faculty/projects/ftrials/communications/zacchini.html.

[8] The First Amendment to the United States Constitution protects the freedom of speech, freedom of the press, religious freedom, freedom of assembly, and right to petition. The Fourteenth Amendment addresses citizenship rights and equal protection of the laws, and was proposed in response to issues related to former slaves following the American Civil War.

[9] Philip Gefter. “Street Photography: A Right or Invasion?” New York Times, March 17, 2006. http://www.nytimes.com/2006/03/17/arts/17iht-lorca.html?pagewanted=all&_r=0.

[10] Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” p. 78.

[11] Philip Gefter, “Street Photography: A Right or Invasion?”

[12]It is important to note that in 1983 Thompson’s cancer fund (the Migrant Mother Fund) was filled with donations from across the country due to the photograph. Further, the wide circulation of the image at the time of its publication did result in delivering food and care to the camp, albeit after Thompson family’s departure. Geoffrey Dunn, “Photographic License,” New Times, accessed November 16, 2015. http://web.archive.org/web/20020602103656/http://www.newtimes-slo.com/archives/cov_stories_2002/cov_01172002.html#top.

[13] Thelma Gutierrez and Wayne Drash, “Girl from Iconic Great Depression Photo: ‘We Were Ashamed,’” CNN, accessed November 14, 2015. http://www.cnn.com/2008/LIVING/12/02/dustbowl.photo/.

[14] Edward J. Bloustein, “Privacy as an Aspect of Human Dignity,” Ferdinand D. Schoeman, ed., Philosophical Dimensions of Philosophy, Cambridge, MA: Cambridge University Press, 2007 p. 188.

[15] Museum of Modern Art, “Edward Steichen at The Family of Man, 1955,” http://www.moma.org/learn/resources/archives/archives_highlights_06_1955

[16] Dorothea Lange’s letter written January 16, 1953 is quoted in John Szarkowski, “The Family of Man,” The Museum of Modern Art at Mid-Century at Home and Abroad. New York: Museum of Modern Art, 1994, p. 24.

[17] Jacques Rancière, Chronicles of Consensual Times, transl. Steven Corcoran, London: Continuum, 2010, p. 51.

[18] Ibid., 49.

[19] Ibid., 50.

[20] Susan Sontag, Regarding the Pain of Others. New York: Farrar, Straus and Giroux, 200, pp. 78-79.

[21] In his “A Little History of Photography,” Walter Benjamin notes how the illiterates of the future will be those who are ignorant of photography; Michael W. Jennings, Howard Eiland, Gary Smith, eds., Walter Benjamin, Selected Writings, 1931-1934, Volume 2, Part 2, transl. Rodney Livingstone and Others, Cambridge, MA: Harvard University Press, 2005, p. 527.

[22] Admittedly Bloustein’s argument is rooted in the American legal tradition, and this essay comes far short of a comparative study of the image’s rights internationally. Yet photojournalism, with its global distribution and its multinational media channels, makes universal claims. As such, establishing an international body that protects the rights of photographed subjects seems urgent.

[23] Georges Didi-Huberman, “The Molding Image,” p. 79.

[24] Ibid.

[25] Giorgio Agamben, Potentialities: Collected Essays in Philosophy, trans. Daniel Roazen, Palo Alto, CA: Stanford University Press, 1999, p. 181.