Monday, February 4, 2013

Correspondence

Blake,

I've got another book I want to do in the next year on my ex wife. You can see a dummy. Problem is she's got some depression and does not want her images made public though she didn't have a problem in the past. I have a copyright lawyer here who says my first amendment rights trumps her rights to privacy as long as I meet some requirements. He wrote her a letter stating that and I never heard back from her so I feel comfortable doing the project but will have to go it alone. No publisher will touch it with even the most remote possibility of anything legal. 


M.



Hi Michael, 
I don't know about the legal stuff but I would be cautious publishing photos of someone who felt strongly opposed. That just seems to invite bad karma, or weird karma. And doing it to an ex-wife just sounds like trouble to me. But that's easy for me to say since I'm not personally invested in the photos. 
-B



Jack Welpott, 1977

Yo,

Appreciate your caution. But I am deeply close to that body of work and feel it must not be silenced or censored by the ex or anyone.  She posed nude for Jack Welpott and it's been widely published and made no stink about it.  Jack never asked her permission. Also my lawyer says if the photos were made with her knowledge and are not demeaning than I'm free to publish. Plus if I self publish and there's no ISBN then it's considered a bound portfolio and I'm free to produce that. But someone can sue for just about anything.  I guess I'm willing to take that chance.

Take care,

m.


Hi Michael, 
Those pictures are great! Yes, they should see daylight. I recognize her from some of your other projects, both in Beautiful Ecstasy and Babe. I'd be happy to run some on the blog if you want. Or not. Up to you.  
I think you slightly misunderstood my last comment. I think you are probably in the clear legally. But morally it's way more murky. 
-B


Blake,

Thanks for the feedback and you are more than welcome to run the images.  Glad you feel the legal thing is not the big issue as no matter what a good lawyer says, I'm still quietly uneasy. As for the moral thing, I think it would be immoral for her to have gone through my early days posing, my graduate days posing, and my teaching days posing, understanding clearly what we were doing, understanding the nature of the field I'm in, having allowed me in the past to publish and show her, always with her knowledge of each photo being taken with approval, even allowing another photographer with a much bigger audience to publish her nude with her name attached, and then to say to me I cannot publish anything I shot of her… out of the blue with no explanation….  Now that would be immoral.  

I've offered her $10,000 in the past to come on board with it as I felt she deserved some compensation for all her work. She said it wasn't about money and that's all she said. When I was with iBid stock agency in Chicago early 2000, I made sure their contract included a share for her on any images of her that might be bought. She did not request that. I offered it.  She was ok with that then but now…….  WTF?  So that's my take.

Sorry for the rant but wanted to lay out the situation.  I'm still open to any thoughts.  Thanks for taking time to comment.

Take care,

m.
Michael Northrup

Hey Michael, 
I'm just putting myself in her shoes. I don't think it's about money. Maybe she was fine before with the photos but for whatever reason now she's not. People change. Who knows why. But I don't think it's ok to just ignore that change and presume the situation is still the same as before. But I feel for you. She is very photogenic, quite beautiful actually. So it seems like a huge shame to keep the photos hidden. So it's a quandary. I think Larry Rivers ran into a similar situation photographing his children at young ages with their full consent and participation. Then when they got older they decided they didn't want the photos out in public. Can't remember how that was resolved. 
I love the first part of the series with photo after photo where I can't see her face. The tension is really strong. What the heck does she look like? Then the second half reveals her and it resolves. It reminds me of a recent book of a black dog in which the dog is hidden in every photo until the last one. 
This recent email interchange might make an interesting blog post as transcript exploring moral/legal issues of publication. I'd be curious to run it but only with your permission.
-B

Hi Blake,

I'm fine with you putting up our discussion. Might get people to comment as it's kind of a loaded issue.  But between you and me, my deepest personal feelings regarding my situation with her is, unless she can show me an absolutely convincing reason for not printing them, which I can't imagine being the case, I'd risk a lot to go to press. Some things are worth fighting for and this body is were I draw the line on censorship. 

Keep in touch,

M.


Michael Northrup

Let me back up and ask more generally, should a photo subject (assuming they consent to the image) ever have some level of control over what eventually happens to their photos? Or is it always up to the photographer? Legally? Morally? I don't think there's an easy answer here but curious to hear your thoughts.
-B

Hi Blake,

Basically if I love an image enough I'd go to court for my rights to it. It's mine. I'm the creator. And if someone posed for me and knew it was to exhibit, then that's an unconditional release to me. The only exception is if used commercially. Then my client would want their keesters covered and demand a release from the subject. But to me, in the art world, once you pose with the understanding of the intentions of the photographer, then you're giving rights. That said there may be circumstances that might prevent me from using it. But the subject would have to work their asses off to convince me otherwise.  

Here's a real example. I have 10 years of images of Pam, taken over 20 years ago and want to do a book on her.  All the images were taken with her knowledge, with her understanding that they'd be exhibited, none are demeaning or defaming. I have shown her in the past with no problem. She has been photographed by other photographers nude and semi nude and never complained about their usage. She was published with total frontal nudity with her name in the title, by a famous international photographer and published in one of his major books and shown throughout his representative galleries. He is a world renowned teacher, a highly ethical man, a great artist photographer and greatly respected.  He did not even ask for her permission. He assumed there was an unquestionable understanding between them both in the very fact that she "posed" for him. This is the understanding that I have had in all my years in this medium and the understanding that all my peers have shared. She never questioned or sought compensation or demanded the removal of that image of her from this photographers usage.  But after 20 years of showing my images of her, she now says she no longer wants me to show those images. 

Unless she can show just cause for not publishing her then I would feel it not immoral for me to use those photos. They are mine. They are my creation. She is not literally in those photos, only her likeness. After all, a photograph is just a 2 dimensional plane with a map of varying shades and colors designed to evoke something in its viewing or mimic some reality. Pam has no rights to that object as it is not her property. It is my creation entirely. Only her likeness is suggested and only seen as such by applying a projected interpretation to that 2 dimensional surface. So if I'm expected to sit on all those images and throw them under the bed, denying me my progress in my field, my communicating with my peers, my income, my rights to this work?…. I say no way Jose and will continue to work towards publishing this work.  fini.



Keep in touch,

m. 

          ________M.E.N._________
                 Michael  E.   Northrup
             www.michaelnorthrup.com
        nothinkingifthinkingthinknothing.



Hi Michael,
I'm preparing our email exchanges to run on B today or tomorrow, along with a few of your photos. I think they're pretty interesting.

-B


21 comments:

Anonymous said...

would be interested to know from lawyer(which I am not)... though copyright prob not an issue.... whether you may be at risk for libel damages if publishing would be detrimental to career or mental well being of your ex (eg job sensitivity or political aspirations, etc), especially if she can argue that their intent was personal as a married couple or at most gallery display, ie before the internet.... your lawyer , though in the right, may not want to take that to a jury and you both might have to pursue settlement... could get dirty and juries are human........

Blake Andrews said...

Good questions, Anonymous. I've referred them and the entire post to a lawyer specializing in photography issues. I'll post a response here if I get one.

pepeye said...

As a lawyer, I can tell you that libel is a non-issue here. I think he probably has all the rights he needs to publish if he wants to without risk.

What puzzles me is that he clearly consulted her about using these photos. He must have, at some level, felt he should do so before proceeding. Why did he bother to ask her if he wasn't prepared to respect her answer? He didn't get the answer he wanted. So now its f' her, on with my art? Not cool.

Jon U.N. said...

In fact, there seems to be several separate questions hidden within this discussion:

1) The legal question of who owns the rights to a photograph and thus the right to make decisions concerning its publication.

2) The moral question of a) the content of the photograph, and b) the treatment of this content. Is there some wrong in what is depicted? Would it be right to publish it?

3) The aesthetic question of the artistic value or quality of the photograph. Is it any good? Is it worth publishing?

4) The question of publication: To publish or not to publish?

In fact, before deciding any of these questions, a more fundamental question appears, namely which of question 1) through 3) should be taken into consideration when deciding upon question 4). In my honest opinion, only 3) should have any bearing upon 4), at least ideally.

This makes the decision easy, at least for me. I have looked through the photographs and find them beautifully touching, especially as a collected set and with the context in place. So I would say: Publish the Hell out of her.

Juanjo said...

For me the issue here is only moral. As spotted by pepeye he felt the need to ask her, but is not going to accept her negative unless is well explained by her argumenting the reasons why she does not want this body of work to be published. And further more, something that intrigues me is the fact that exposing all this in a blog post, including the dummy of the book, mails with her thought on the case, to an audience, is not another kind of publishing, ergo, not taking in consideration her wish?

Not saying that the blog post is wrong, on the contrary, it just made me thought about all this, and a lot of questions of difficult answer came to my mind.

Regards, Juanjo.

Blake Andrews said...

Yes, Juanjo. The blog post was a deliberate attempt to push and blur that fuzzy line. Does it count as "publishing"? Will Pam see it? Who knows. I think also the format of the post raises similar questions of privacy. It's written as a window into a private email chain. I asked Michael's permission, but what if he changes his mind later? Many interesting issues here...

Anyway, I got this note today from Carolyn Wright, photo attorney. She provided a few helpful links.

Hi, Blake.

Thanks for your note. Unfortunately, my schedule is slammed right now with our client's cases so that I won't be able to take the time to fully understand the issues. My blog entries here may be helpful to you:

http://www.photoattorney.com/?p=39

http://www.photoattorney.com/?p=430

http://www.photoattorney.com/?p=364

Best,
Carolyn

Juanjo said...

'Does it count as "publishing"? Will Pam see it?'. And I would add, would it be valid if she does not seen it even when she's not keen to accept this "publishing". Yes, many interesing issues here with equal interesting and difficult answers. Interesting post Blake, really interesting.

Juanjo.

pepeye said...

The fact that we've been able to look at these photos means they've been "published" as the law would define that term. I think that's a non-issue here. Slander/libel are "false light" torts and there no indication that these photos depict her in a false manner (i.e. her head on the body of a water buffalo with a representation that that's what she really looks like) that would be actionable.

The really issue issue here is over the difference between having the right to publish these photos verses choosing to do so when it will potentially hurt someone he once cared about and who, when asked, said no to his request.

An "artist" who behaves like a dick is just a dick who thinks he's an artist.

Anonymous said...

If there is no model release, don't do it. Do not fake a model release--it can land you in jail. Even if there is a model release, judges have been willing to find sensitive images outside the bounds of the release--no matter how all-inclusive you may think it is.

She's apparently said no. It's not only about copyright (I don't know why photographers get hung up on the copyright question when it is not the only legal right at issue), it is about rights of privacy AND rights of publicity. Possibly even public dissemination of private facts.

I am a lawyer, licensed in California for almost 20 years, and before that I was a pro photographer for about that long.

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Jon U.N. said...

Rubbish. A lot of great artists and thinkers were dicks. I'll even go out on a limb here and say that most of them were. A person's moral qualities has nothing do do with his/her ability to produce great works.

Juanjo said...

That's exactly what I meant with my post pepeye, the right to do it vs the choosing to do it. But I also agree with Jon U.N. Being a dick has nothing to do with artistic capabilities, world of art is full with examples of bad behaviour (ethics, moral as described in a society) and great art. Properly full. I guess every one draws its own line in moral and ethics and just stick to that, it's really a blurry one.

Talking just about me, if that counts, I would draw the line here based on her current depression. Knowing how little things can affect someones psique in that kind of mental state or illness (based on experiences in my own family) I would not think about it and just not publish them. But that's only based in my own experience.

pepeye said...

Fair enough, plenty of artists are dicks. But does being an artist excuse being a dick? That makes it OK to hurt people for the sake of art? Does art make the immoral act moral?

Juanjo said...

No, of course not. Still, I can understand that having a body of work like that and not being able to share it has to be painful. He basically has lost any right he had over the photographs if he decides to take her negative answer to publish them. Not justifying him, just saying.

Blake Andrews said...

Here is a link to the Larry Rivers situation I referenced in the article. Some similarities, but also different because it involves children:

http://www.nytimes.com/2010/07/08/arts/design/08rivers.html?_r=2&scp=2&sq=larry%20rivers&st=cse&

China Plate said...

Jim Goldberg has a book on/about his ex-wife which has not and will not be published for legal reasons. Maybe speak to him, but I know he would publish it if he could.

Blake Andrews said...

Jin Zhu has posted some interesting thoughts on this here:

http://www.killeryellow.com/blog/2013/02/07/consent/

John King said...

This is a fascinating issue and it deserves our attention for lots of reasons. A couple of minor points I don't see mentioned yet are:

1. The introductory text of the book says: "It exists through collaboration with Pam..." The "it" in the statement probably refers to the body of work rather than the book. To publish this work, with that statement, against Pam's wishes, seems quite wrong. I think Pam is entitled to oppose the publication for *whatever* reasons she may have.


2. It seems that the intent is to publish a book that would presumably be available for sale. I'm not a lawyer, but I think publication for sale qualifies as commercial use and would require a signed consent form.

Some other observations...
-Jin's commentary is thoughtful and provides a compelling analogy.

-The Larry Rivers film is disturbing in every dimension. I think this situation is very different, especially in the comparison of how one might define the "consent" that was originally given by the subjects.





Hernan Zenteno said...

Pepeye, why you said this photos can hurt people? I don't find any defamatory issue here. For me this case is a matter of ex couple fight, is really a personal issue. I like some photos, I don't like others but Is not a denounce or an attack to someone. Is more, the feelings that left me the photos are positive feelings.

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