The Unrepentant Flâneur’s Guide to Street Photography Part 9

Thinking

Lawyers have funny ways of speaking. It’s a result of their having to analyze the ramifications of every situation. Ask any lawyer a question on any subject and their responses, like those of insurance people, usually begin with the phrase, “Well, it depends . . .” For example, a common although variably worded question asked with regards to street photography is, are there really laws against street photography? The answer; well, it depends on where you shoot, and the end-use of the picture.

The world is a big place for this subject and this is just an art blog. There’s just not enough room or time here to spend researching every edict and case of every nation. The general thing to remember in probably most Democratic parts of the world, and I do mean only general, is that there is a high probability that you could be protected by a constitutional right to a freedom of expression as far as engaging in street photography so long as your results don’t have any commercial use. That said, even when there isn’t commercial use involved, you may still have legal problems if an image you’ve made brings any form of harm to another. I ain’t no lawyer but this latter understanding warrants a closer look at the Canadian province of Quebec, just to cause consideration for potential laws elsewhere on the planet.

If you live on the western hemisphere, you may or may not be aware that the province of Quebec just may be the only region in all of North America that actually has laws requiring that a photographer first obtain consent from anyone who is to be photographed . . . so far.

The law in the province of Quebec is based on the following premise:

“La droit d’une personne sur son image est une composante du droit à la vie privée.”

“The right to one’s own image is a component of the right to privacy.”

It certainly sounds like a noble and protective premise but is it realistic in every situation? Shouldn’t there be exceptions? Regardless of wherever on this planet you shoot, try these scenarios on:

1. You photograph a woman standing on a corner; no bus stop in sight. Regardless of what she’s wearing, and without any intent to infer that your photograph is about pimps, madams and prostitutes you put the picture on your hardly ever accessed Facebook fan page while a scant number of visitors exchange in dialogue about prostitution.
2. You shoot a young man sitting on a sidewalk with his back leaning against a large brick building. You made the shot because to you, there were beautifully poetic characteristics about his appearance and the way he sat there. You have no idea about the man’s financial or social situation. You gave permission; however, for a charity to use the image in it’s blog post about raising money for homeless youth.
3. For some reason, it’s big local news that a popular porn star comes to town for a public convention. Many citizens see her emerge from the front door of a hotel, all dressed to be seen if you know what I mean. You notice a middle-aged looking man raise his iPhone to take a cheap shot of her massive cleavage. Photographing the porn star is not quite of interest to you. Instead, you photograph the man as he takes the picture, getting in one shot a little of his facial profile, clear resolution of the woman’s décolletage appearing on his LCD, and a blurred head-to-waist view of the busty blonde posing because she’s just beyond the DOF of your wide-angle lens. Your picture, thankfully, isn’t likely to be featured on a popular porn site but in an online street photography gallery amongst thousands of others from hundreds of other street photographers. That’s where your anonymous iPhone photographer will be seen expressing some supposedly Freudian obsession about his mother.
4. You capture a young couple exchanging a pleasant little kiss on the lips while walking past a hotel on a busy public sidewalk. It’s simply a romantic image that makes it to the cover of a magazine.

Do you think that any or all of the people featured in these pictures would be justified in suing you for using their likenesses, without first obtaining permission, and causing them public humiliation? Try stepping into their shoes. What set of circumstances would be severe enough for you to call on the law? I think I know what you’re about to say. Wait for it . . .

“Well, it depends . . .”

Undercover Spy

Take the case of Pascale-Claude Aubry. When she was 17 years-old in 1988, she was photographed in beautiful black and white by street photographer Gilbert Duclos while she sat on the front steps of a Scotiabank in Montreal, QC. At first view, there doesn’t seem to be anything remotely scandalous about the image or the circumstances in which it was made. In fact, it seems rather flattering. Her short dark hair was, seemingly, dyed bleach blonde; she wore a dark heavy sweater, dark slacks and dark leather shoes. She had high cheekbones, a prominent chin and she looked drop-dead gorgeous. Some say that she may have simply eaten her lunch there on the bank steps. Duclos’ picture looks like a scene out of a touching classic film.

Yes, it’s only the version that edits out her face that you’re likely to see these days but I did have the opportunity years ago to see it uncensored. In ’88 I turned 18. Had I seen Pascale-Claude Aubry on the street, I may not have photographed her but would have done a double-take, honestly.

Pascale-Claude was never asked if a picture could be made, and the image became a cover for a low-circulation, now defunct, arts and literature magazine known as Vice Versa (if you Google “vice versa magazine montreal” you may be able to come across one or two PDF’s of a random issue to get an idea of the type of periodical it was). The issue with Pascale-Claude’s image on it is said, by some observers, to have sold 772 copies; hardly a volume comparable to Time, National Geographic or even a Marvel comic book. If it were around today, I’d mistake it for being a blog.

Ms. Aubry said that her schoolmates saw the picture of her and “laughed” at her. This caused her enough embarrassment to prompt her to sue Duclos and Vice Versa all the way to the Supreme Court of Canada for $10,000. By 1998, a whole ten years later, she won.

The Supreme Court ruled that for Quebec, not the rest of Canada, obtaining permission is a requirement for editorial use unless the individual is a celebrity or if the photo is used in actual news publications (paper, TV, Internet and who knows what tomorrow will bring, and the Internet was barely accessible by the public back in ‘88). If a person is in a news photo; however, they must either be the subject of the news or authorization to use their likeness must be obtained from them. It is unclear if this applies even if they inadvertently happen to step into the background of a shot of someone who the news piece is actually about.

Attentions Focused

Gilbert Duclos is a born and raised native of Montreal. After studying photography at the CEGEP (Collège d’enseignement général et professionnel known officially in English as a “General and Vocational College”) du Vieux-Montréal, he became a professional photographer in 1976.

During a twenty year period of devotion to street photography, Duclos was also quite active in the field of editorial photography. He worked with many magazines both Canadian, like Vice Versa, and foreign. His artistic photography has been published in the form of posters, postcards and in various cultural magazines. He is also a popular documentary film maker.

You can find Duclos’ website at http://www.gilbertduclos.com. You can get to it faster through my blogroll under the Photography subcategory.

While there is still a fair amount of discussion about the Pascale-Claude Aubry lawsuit and Duclos’ part in it, I find that no one seems to directly talk to Ms. Aubry or Mr. Duclos about it. So, I at least requested an interview with Gilbert Duclos. I can’t thank him enough for his participation in this entry; hopefully a chance for us flâneurs with cameras to get a better grasp of the risks we are taking by engaging in SP anywhere.

Duclos warned me that his English is quite rusty so he responded to all of my questions in French. As my French is just as rusty; if not more so, I promised him that I’d do my very best to translate and present the English equivalent (regular italics) with his French responses (bold italics) in this post.

Fussin’

Firstly, here’s a quick and dirty but necessary backgrounder for readers not familiar with the peculiarities of the Canadian legal system:

In the 1700’s, England competed with France for dominance over the lands that would eventually become Canada. Both European nations established colonies from the eastern shores to around the Great Lakes but the British wrestled control from Napoleon by 1756. As the border between Canada and the US didn’t really exist at that time, Americans share part of this history, as they too were opposed to the British presence in North America. Fearing that the French colonists would unite with Americans on the southern side of the St. Lawrence River, the British ensured that the largest grouping of the French colonies became the province of Quebec with its own Charter of Rights and right to maintain the civil law of France. By comparison, all federal laws and those of all other provinces and territories are designed off of British Law. When provincial cases are appealed to the Supreme Court of Canada, which is the federal judiciary, the SCC settles appeals on the merits of the provincial laws applicable to where cases were originally tried. So, Duclos’ and Vice Versa’s conduct were scrutinized not by British-based laws but by fairly old standards of France that are still observed today in Quebec.

Untitled by Gilbert Duclos (NYC 2007)

Quebec civil liberties law requires that Pascale-Claude Aubry had to prove that Duclos’ photographing her, and Vice Versa’s use of her likeness caused her prejudice or some other harm. There clearly wasn’t any proof presented in provincial trial court or the Supreme Court to support her claim. There is only her word that she was “laughed at” by her friends. The transcript of the Supreme Court summation indicates that three of the judges took issue with that, and had doubts about Ms. Aubry’s claim of being embarrassed and harmed but were overruled by the majority of other judges who were not in dissent with the original trial court findings. My first question, of course, was to find out what Duclos makes of this.

FR: “Je m’explique encore difficilement la décision des juges de la Cour Suprême.”

“À la même époque en France, il y avait énormément de procès sur le droit à l’image des personnes et même de leurs propriétés. Les juges ont peut-être été voir ce qui se passait là-bas car le Québec contrairement au reste du Canada est plus près du code Napoléon français que du Common Law. Il y a eu aussi la mort de Diana à Paris en 1997 qui a nuit énormément aux photographes.”

EN: “I still find it difficult to explain the decision of the judges of the Supreme Court.”

“At the same time in France, there were a lot of trials on the image rights of persons and of their properties. The judges may have been observing what was happening there as Quebec, unlike the rest of Canada, is closer to the French Napoleonic Code as is the Common Law. There was also Diana’s death in Paris in 1997, which legally impacted photographers enormously.”

Although the answer was obvious to me, it was only fair that I asked Gilbert if he or Vice Versa intend to embarrass Pascale-Claude Aubry. He replied:

FR: “Jamais de la vie. Si la photo paraissait dans le magazine, c’est parce que nous jugions que la photo était inspirante et intéressante d’un point de vue documentaire et artistique. Elle représentait une jeune femme vivant dans la ville. Probablement que des étudiants ont réagit devant la photo de Aubry dans le magazine Vice Versa, certains ont peut-être trouvé ça cool et d’autres peut-être pas . . .”

“Curieusement, aucun témoin n’est venu témoigner en première instance. Et Mme Aubry n’a jamais voulu parler ni s’adresser à personne officiellement. Plusieurs journalistes ont voulu avoir son témoignage en vain. J’ai moi-même voulu lui laisser une tribune dans mon documentaire mais elle a refusé.”

EN: “Not on your life. The photo appeared in the magazine because we felt that the picture was inspiring and interesting from a documentary point of view, and artistic. She was a young woman living in the city. It is likely that students reacted variably to the photo of Aubry in the magazine Vice Versa; some may have thought it was cool, while others didn’t think so.”

“Curiously, no witnesses testified at trial. Aubry never wanted to talk or contact people officially. Several journalists tried unsuccessfully to get her side of the story. I myself wanted to give her a forum in my documentary but she refused.”

I had to ask that question because intent is an important factor in most; not all, Democratic tort law. That question and Gilbert’s predicted response to it had to be followed up with the question of if he thought the intent of making the photograph or its use was ever a consideration in court.

FR: “Les images utilisées par Vice Versa faisaient partie de ma collection d’images de rues. Ce numéro de Vice Versa était dédié à la ville. Mes images ont été placés dans une double page entourés de textes sur la ville. Il a été établis dans le procès qu’il n’y avait aucune corrélation entre les textes et les photos.”

“Je ne sais pas réellement ce que le tribunal a pu penser mais pour nous les images illustraient la notion de vivre dans la ville. Etre dans le décor d’une ville. Au lieu d’une jeune femme cela aurait pu être un jeune homme. L’important était que l’image ne soit pas préjudiciable à cette personne.”

EN: “The images used by Vice Versa were part of my collection of images of streets. This issue of Vice Versa was dedicated to the city. My images were placed in a double page of text about the city. It was established in the trial that there was no correlation between the text and photos.”

“I really do not know what the court was thinking. For us the pictures illustrate the notion of living in the city; being in a city setting. Instead of a young woman, it could have been a young man. The important thing was that the image is not prejudicial to that person.”

I guess it was during mediation that Duclos offered to pay Pascale-Claude the equivalent of what he would have paid a model back then. I wondered what the reason she gave for turning it down was.

FR: “Je ne sais pas, je ne lui ai jamais parlé. Son avocate nous a dit qu’elle refusait toute entente à l’amiable et qu’elle poursuivait pour 10,000$ dont 5,000$ pour dommages punitifs . . .”

EN: “I do not know. I’ve never spoken to her. Her lawyer told us that she refused any settlement agreement and pursued for $10,000 including, $5,000 for punitive damages.”

Yes, it’s a me . . . me . . . me world. Realistically, I had to question the possibility that Ms. Aubry’s embarrassment over the photo might not have been genuine and more so a narrow-minded attempt to get rich quick through scandal.

FR: “Je pense qu’elle a été mal conseillé au départ. Il semble aussi qu’elle avait accès grâce à sa mère à un bureau d’avocat empressé de s’occuper de ce cas précis pour des raisons d’affaires.”

“Le montant d’argent qu’elle demandait au départ était énorme considérant l’utilisation documentaire d’une image dans un magazine culturel dont seulement 700 exemplaires du magazine avait été vendu.”

EN: “I think it was ill-advised to begin with. It also seems that her mother obtained a lawyer’s office that was too eager to take on their case for business reasons.”

“The amount of money for what was originally called a documentary was enormous considering the use of an image in a cultural magazine which only sold 700 copies.”

The saying goes that; “Everybody hates lawyers until they need one.” I don’t hate them, good lawyers are an asset but the whole case does read as though there were slick opportunist lawyers involved in Pascale-Claude’s circumstances. I doubt she understood that her case would drag on for as long as it did, and cost as much as it did.

FR: “Non je ne pense pas. Lorsque nous avons perdus en première instance, au lieu de payer les 2,000$ demandés, nous avons décidés de demander la permission d’aller en appel à la Cour Supérieure pour des raisons de principe. La cause a été acceptée, ce qui nous à mener finalement jusqu’en Cour Suprême.”

EN: “No, I do not think so. When we lost in the first instance, instead of paying the $2,000 requested, we decided to seek permission to appeal to the Superior Court for reasons of principle. The case was accepted, which eventually lead us to the Supreme Court.”

L’homme à la pipe – “Man with Pipe” by Gilbert Duclos (Montréal1985)

As of this post, it’s been fourteen years since the final verdict and twenty-four since Gilbert made that fateful photograph. A lot has changed in society that should, despite the laws, have a profound impact on how photography in the public domain is practiced. What is it like to do street photography in Quebec today?

FR: “Pendant les quelques années qui ont suivi le jugement, il a été plus difficile de faire de la photographie de rue. Les gens interpellaient les photographes en leurs disant qu’ils n’avaient pas le droit de les photographier. Il me semble qu’aujourd’hui, cela s’est un peu calmé. La photographie est devenu le hobby no.1 au monde alors il y a pas mal de photographes dans les rues. Sans compter tous les téléphones qui ont intégrer la photo et la vidéo dans leurs fonctions.”

EN: “During the few years that followed the judgment, it was more difficult to do street photography. People shouted at the photographers telling them they were not allowed to photograph. It seems to me that today it has calmed down a bit. Photography hobby became no.1 in the world, and there are now a lot of photographers in the streets. Besides, all phones now have integrated photo and video functions.”

I asked Gilbert if he thinks that the requirement to obtain consent [written] from a person prior to photographing might or will become law across Canada. He said:

FR: “J’espère que non. Le juge en chef Antonio Lamer qui avait présidé mon procès m’avait déclaré au téléphone (malheureusement je n’ai pas l’enregistrement donc je ne me souviens plus exactement de sa phrase) que la décision de la Cour Suprême était finalement un mauvais jugement. Il avait accepté de s’expliquer dans mon documentaire La rue Zone interdite.”

“Malheureusement, il a été terrassé par une crise cardiaque juste avant le début du tournage et est décédé quelques mois plus tard . . . Peut-être qu’un jour ce jugement sera renversé.”

EN: “I hope not. Chief Justice Antonio Lamer who chaired my case had told me over the phone; unfortunately I did not record so I do not remember exactly his words, that the decision of the Supreme Court was ultimately a bad judgment. He agreed to explain that in my documentary ‘This Street Off Limits’.”

“Unfortunately, he suffered a heart attack just before the shooting and died a few months later. Maybe one day this decision will be reversed.”

I asked Gilbert if he is personally aware of such laws existing in other countries.

FR: “Cela dépend bien sûr des pays. Les pays anglo-saxon sont réputés pour être plus tolérant. La France est redevenu depuis 2005 plus tolérante quant aux photographies publiées lorsque la pratique du photographe à une valeur artistique et documentaire.”

“Les photographes Français Luc Delahaye et François-Marie Banier ont tous les deux gagner leurs procès dans des affaires de publication. Malheureusement, aujourd’hui c’est probablement au Québec que la jurisprudence est la plus sévère. De façon anecdotique, Il est fort probable qu’en 1988, un tribunal d’Ontario ne m’aurait pas condamné car la notion du droit à l’image est plus souple dans le Common Law.”

EN: “This of course depends on countries. Anglo-Saxon countries are known to be more tolerant. Since 2005, France is again the most tolerant about published photographs when photography is practiced for artistic and documentary value.”

“The French photographers Luc Delahaye and François-Marie Banier have both won their cases in the trial publication. Unfortunately, today it is probably the case in Quebec that is the most severe. Anecdotally, it is likely that in 1988, an Ontario court would not have condemned the notion of law because the image is more flexible in the Common Law.”

Naturally, I had to ask if anyone else has tried to sue Gilbert for making candid images of them without prior consent.

FR: “Non au contraire, dans tous les autres cas, j’ai été remercié. Par exemple, lorsque l’image de l’homme à la pipe a été publiée à la une du Globe and mail section culturel, sa fille m’a appelé, m’a remercié profondément et m’a acheté quatre exemplaires de mon livre. ( Gilbert photographies 1977-1997 était alors sur la short list du prix Roloff Beny de 2002)”

EN: “No. To the contrary, in all other cases, I was thanked. For example, when the image of ‘Man with Pipe’ was published in the Globe and Mail cultural section, his daughter called me thanked me deeply and bought four copies of my book ‘Gilbert Photographs 1977-1997’; it was then on the short list prices Roloff Beny, 2002).”

Today, there are a lot of street photographers, and more people taking an active interest in the genre everyday. Most of what’s being produced is winding up on the Internet. Even that, times have changed so much since Duclos shot Ms. Aubry in 1988 that it’s hard to find anyone who hasn’t posted pictures or video of themselves or others on YouTube, Facebook, MySpace, Twitter or some other social network, image hosting or news site.

Wonderful things, depressing things, extremely personal and private things; they could be tacky pornographic images of themselves or pictures of military snipers killing children in the streets of Syria. Things that have never been captured in street photography and might still be unlikely to be captured in street photography. It’s pretty much an expected way of life now for most parts of the planet. It seems to me that the world, although it may not yet fully realize it, has moved far beyond the controversies of an actual art like street photography.

To me, this all indicates that what we do as street photographers is something refined, honest and incredibly important; perhaps now more than ever. With these aspects and the final court decision of the case in mind, I asked Gilbert what’s his standpoint with regards to conducting street photography without asking permission in the present and the future.

FR: “Quand c’est possible de demander une permission, il est préférable de le faire bien sûr. Par contre lorsque l’on pratique la photographie où l’instant présent est très important (l’instant décisif à la Cartier-Bresson), il devient extrêmement difficile pour ne pas dire impossible de courir après les gens pour leur expliquer que l’on vient de les photographier et que peut-être un jour leur image sera publiée tout en leur demandant de signer une autorisation cédant leur droit sur leur image.”

“Les plus belles images de rues ont été prises sans permission par les plus grands photographes et on les admire encore aujourd’hui…Je pense qu’il faut continuer cette école de photographie avec ou sans permission.”

EN: “When it is possible to ask for permission, it is best to do that, of course. On the other hand, when practicing photography where the present moment is very important; ‘the decisive moment of Cartier-Bresson’, it becomes extremely difficult if not impossible to run after people to explain to them that we just photographed them and maybe one day their image will be published while asking them to sign an authorization transferring their right to their own image.”

“The most beautiful pictures of streets have been taken without permission by the greatest photographers and are still admired today . . . I think we should continue this aspect of photography, with or without permission.”

Célèbre inconnu – “Famous Unknown” by Gilbert Duclos (Montréal1988)

I should add at this point that while Ms. Aubry won her case, she was awarded approximately $2,000 in compensation out of the $10,000 she originally sued for. That’s a loss of about $800 a year for every year that efforts were dedicated to pursuing the final judgment.

Are you shaking your head? Hang on, I think I know what you’re about to say:

“Well, it depends . . .”

Yes, I was hoping to quickly track down Pascale-Claude Aubry in hopes of getting her side of the story but I have been unsuccessful. If she reads this, I do hope that she expresses her position here.

I am left viewing Duclos as a most admirable street photography soldier or warrior; battle hardened. He’s been to the front, taken a hit and is soldiering on until it’s time to return home to receive a well deserved Medal of Military Valour. Perhaps it’s the wrong way to see him but I can’t help it.

Thank you again Gilbert Duclos for your input for this post.

I also can’t help but feel a little sad for Aubry. It seems she was used as a pawn by lawyers whose only objectives were to use her case to turn a profit and make a name for themselves and their firm by exploiting a tired old Napoleonic Code. A code that was on the verge of collapsing under the weight of globalized photography and information sharing we have today. I suspect that the presiding judges saw that, and that’s the real hidden reason why they granted her $2,000 instead of nothing at all.

At Rest

Here’s a paradox. As a result of providing the photo of Ms. Aubry to the Supreme Court of Canada for the trial, the picture automatically became part of public domain, and as a result of filing the lawsuit her name, Duclos’ photo and this case has been quite frequently discussed for the past fourteen years, and is likely to be discussed for fourteen more. Duclos calls the image “Famous Unknown”. Interestingly, there is no suit against the Canadian government about this outcome on the grounds that the law infringes on a person’s constitutional right to privacy.

For further consideration of that, we do know this; Section 8 of the Canadian Charter of Rights and Freedoms states that:

“Everyone has a right to be secure against unreasonable search or seizure.”

“Tout le monde a le droit d’être protégé contre les fouilles, les perquisitions ou les saisies abusives.”

This section has in fact been applied by the Supreme Court of Canada to protect the “reasonable expectation of privacy” (Hunter et al v. Southam Inc.). Lawyers have written that while the Canadian Charter of Rights and Freedoms does not directly apply to private rights or to the common law, the Supreme Court has, nevertheless, clearly held that the common law (law developed by judges through court decisions and legal tribunals instead of through legislative acts of statute) should be interpreted in a way consistent with “Charter values” (Hill v. Church of Scientology of Toronto). Beware; there is still real risk in practicing street photography.

In the context of section 8, the Supreme Court has also defined privacy as encompassing three zones of protection; territorial, personal and informational.

• Territorial privacy refers to places, such as the home, which are typically considered to be private (this seems to rule out most public places where there isn’t “a reasonable expectation of privacy” [e.g. public bathrooms]);
• Personal privacy is concerned with the human body (e.g. likeness or other physical appearance, physical and mental health, ability); and
• Informational privacy relates to information about a person concerning their health, age, sexual orientation, medical or employment records, whether or not he/she has a criminal record, etc.

Longwinded and complicated isn’t it? Well, that depends on if you find this information useful to you; hence my considerations below.

To All

In consideration of the common question referenced at the start of this post, you’re going to have to research the laws of the jurisdiction where you’re going to shoot, possibly where you’re picture may be publicized, hope that you can interpret the laws and bylaws correctly if you do not have legal representation to help you, and then factor what you discover into deciding how you will go about shooting that community, if you shoot it. You never know if the laws of Quebec are similar or even more restrictive on street photography somewhere else in the world.

Remember what happened to Google Street View. Compensating for the varying privacy laws all over the world are why everyone’s face on GSV is blurred, and that may not have happened if the woman who didn’t want her face shown on GSV hadn’t drawn public attention to her likeness and concern.

Even if your from another country, if you want to read the Supreme Court summation on the case between Aubry, Vice-Versa and Duclose, Canlii (Canadian Legal Information Institute) still maintains a PDF online in English at the following address – http://www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.pdf.

If you are aware of how the law is applied to street photography in your neck of the woods, I’d love to hear about it.

Tags: Adventure, Art, Exploration, Inspiration, Life, People, Photography, Street Art, Street Photography, Thoughts

• September 16, 2012
• Street Photography, The Unrepentant Flâneur’s Guide to Street Photography
• 11 Comments