The Face in the Photograph: What Rex Made Me See (#716)
This essay follows a previous blog titled: This Little Girl No Longer Exists: Who Owns a Moment?
Two weeks ago, I was traveling along the Canal du Midi aboard the Saraphina.
Our guide was Rex, and on one particular day he was introducing us not simply to southern France, but to the history, architecture, streets, and people of Narbonne.
I was doing what I always do when I travel.
Watching. Learning. And taking photographs.
Outside one of Narbonne’s great old buildings stood an extraordinary sculpture. Children were irresistibly drawn to it. They climbed on it, hid behind it, touched it, and incorporated it effortlessly into their games.
Adults might have seen a work of art.
The children saw an invitation.
I photographed two little girls playing around it.
One photograph showed a girl partly concealed behind the enormous bronze figure. She was peering around its body, caught in that wonderful instant when play becomes exploration.
Her face (blurred in the image above) was visible.
In another photograph, a younger girl stood beside the sculpture with one hand resting upon it. She faced away from me. We see her dress covered in hearts, her sandals, her blonde hair, and the extraordinary difference in scale between the child and the enormous figure beside her.
But we do not see her face.
To me, both were examples of street photography:
Spontaneous observations of children interacting with public art in a public place.
Rex saw something else.
He asked me about sharing photographs in which children’s faces could be seen.
It was not an accusation. It was a question. But it stopped me.
I had been thinking as a photographer.
Rex made me think about the person being photographed.
Two Photographs. One Important Difference.
Looking at those two Narbonne photographs now, I see a distinction I had barely considered when I pressed the shutter.
In one, the child is recognizable.
In the other, she is essentially anonymous.
That distinction matters particularly in France.
French law recognizes a strong droit à l’image - a person’s right concerning the use of his or her own image - alongside the broader protection of private life in Article 9 of the French Civil Code.
The issue is not quite as simple as saying that nobody may ever photograph or publish an identifiable person without permission.
Freedom of expression, journalism, art, public events and legitimate public interest can all enter the balance.
But France gives particular weight to the rights of the person inside the photograph, and children receive special protection.
French law now expressly requires parents to protect their minor child’s right to his or her image and, remarkably, says the child should participate in decisions concerning that right according to age and maturity.
Suddenly, Rex’s question seemed much more significant.
The first Narbonne photograph identifies a particular little girl.
The second does something different.
A child photographed from behind, without a visible face and without accompanying information that identifies her, comes much closer to what I would call anonymous street photography.
That does not mean that turning one's back to the camera magically eliminates every privacy concern. People can sometimes be identified by clothing, location, companions, tattoos, or circumstances.
But there is an important difference.
The second photograph tells us something about childhood without necessarily telling us who the child is.
And perhaps that is enough.
What If I Had Taken these Photographs in Sydney?
This question immediately took me back to the photograph that prompted my previous essay - the little girl eating bread in a public park in Sydney two years ago.
Australia approaches street photography rather differently from France.
As a general proposition, photographing people - including children - in a public place in Australia does not automatically require their permission or their parents’ permission.
There is no broad Australian equivalent of the French droit à l’image giving every individual a general right to control photographs taken of them in public.
There are important exceptions and qualifications.
Harassment, surveillance, indecent imagery, particular restricted places, defamation, misleading commercial use, and other circumstances can bring quite different laws into play.
But an ordinary candid photograph of a child behaving ordinarily in a public park is not generally unlawful merely because the photographer did not first obtain parental consent.
That answers one question:
Could I take it?
Probably.
But it doesn't answer Rex's question.
Should I publish it?
That is different.
Once an identifiable child's photograph is placed on a publicly accessible blog, I have changed the nature of what I did.
The child may have been visible to perhaps fifty people in the park.
My photograph can make her visible to thousands.
The people in the park would forget her.
The Internet may not.
Australian law may give the photographer considerable freedom, but Australian privacy guidance nevertheless encourages particular care with children's images and consent when photographs are placed online.
Once again, legality and responsibility begin to separate.
And What If It Had Been America?
Move the same sculpture to New York, Chicago or San Francisco and another legal tradition comes into view.
The United States gives exceptionally strong protection to freedom of expression. Street photography, documentary photography, journalism and artistic expression, benefit from the First Amendment, while privacy and right-of-publicity laws vary considerably from state to state.
An important American distinction concerns expressive versus commercial use.
A candid photograph appearing in a photographic essay, exhibition, news report, book or piece of social commentary occupies very different legal territory from using that same recognizable child's face to sell shoes, breakfast cereal or holidays.
Put differently, the United States tends to begin with the photographer's freedom to observe and communicate.
France makes me think more immediately about the photographed person's control over his or her image.
Australia, at least regarding photography in public places, sits somewhat closer to the American tradition.
Three democratic societies.
Three somewhat different balances between two legitimate interests:
My freedom to make the photograph.
And,
The subject's interest in controlling what happens to their image.
The law draws lines between them.
But those lines do not necessarily tell me what I should do.
Perhaps Anonymity Doesn't Diminish a Photograph
This is where my second Narbonne photograph has become particularly important to me.
Before talking with Rex, I might have assumed that hiding a child's face weakened a photograph.
Now I am not at all certain.
Look at the younger girl standing beside the sculpture.
We don't need her face. Her hand tells us something. Her stance tells us something. Her heart-covered dress and tiny sandals tell us something.
Most of all, the extraordinary difference in scale between this little human being and the massive sculpture tells us something.
There is curiosity in that hand reaching toward the bronze. There is childhood in the picture. There is a story.
And we don't know who she is.
Perhaps that makes the photograph more universal.
She ceases to be that particular little girl in Narbonne and becomes something larger:
A child encountering something enormous and strange.
That realization has changed something for me.
Anonymity need not destroy intimacy.
Sometimes it may actually create it.
The Face Changes Everything
Now compare it with the other photograph.
There she is. A face. Eyes looking sideways. Hair falling across her forehead. An expression frozen at precisely the instant I pressed the shutter.
Immediately we begin doing what human beings instinctively do when confronted with another face.
We wonder. What is she looking at? What is she thinking? Is she apprehensive? Curious? Playing? Has she noticed me?
We construct a personality around an expression lasting a fraction of a second.
That is exactly what I had done with the little girl eating bread in Sydney (in my previous blog).
And suddenly I understood that the face does much more than make a photograph visually compelling.
A face converts an anonymous human story into somebody's story.
That may be the most important distinction of all.
Rex Changed the Way I Look Through a Camera
I have taken photographs for decades.
Wildlife. Landscapes. Buildings. Streets. People.
I have thought endlessly about composition, light, perspective, expression, timing and story.
But until that afternoon in Narbonne, I am not sure I had thought seriously enough about one other element.
Consent.
Rex made me do so.
And his question followed me home. It followed me as I looked through my photographs from France. It followed me when I compared these two photographs from Narbonne.
And eventually it led me back two years to Sydney and to the little girl eating her lunch.
Australian law may have allowed me to take that photograph.
American law might have protected a similar photograph as artistic or documentary expression.
French law would make me considerably more cautious about publishing an identifiable child's face.
But after Narbonne, none of those answers seems entirely satisfactory.
Because Rex had inadvertently asked a much simpler question:
Just because you can, does that mean you should?
That question is not answered by a statute.
It is answered by the photographer.
Postscript: For Rex
Rex, this essay is really yours.
You may not remember the conversation as vividly as I do.
It was a small moment during a day filled with much bigger things: Narbonne, its cathedral, its history, its streets, its extraordinary architecture.
You asked a question about photographs of children.
And we moved on.
But I didn't.
Your question has stayed with me.
It has caused me to look again at these two photographs. One child has a face. The other does not.
Both photographs tell a story. Both preserve a moment. Both are photographs I value.
But now I understand that they are not ethically identical.
You made me realize that when I look through a viewfinder, there are always two people involved.
There is the person behind the camera.
And there is the person in front of it.
For years I have thought principally about the responsibilities of the first.
You made me think much harder about the rights of the second.
And, rather wonderfully, you accomplished something that the very best guides occasionally manage to do.
You showed me something I had not traveled to France expecting to see.
Not another cathedral. Not another medieval village. Not another vineyard.
You showed me my own photography differently.
Thank you, Rex.
I am still thinking about your question.
I still don’t have a satisfactory answer.
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