This Little Girl No Longer Exists: Who Owns a Moment? (#715)
Updated: 7 days ago
Two years ago, in a public park in Sydney, Australia, I took a photograph of a little girl eating lunch.
I did not know her. I did not know her parents. I did not ask their permission.
She did not pose for me. I simply saw a moment, raised my camera, and pressed the shutter.
There were other people around her, but it was her expression that caught my attention.
She was holding a piece of bread in one hand and looking sideways at another child who was eating. Her mouth was expressionless. Her eyes were not. They seemed to contain an entire conversation.
Recently, looking at the photograph again, I found myself wondering what she was thinking.
Is yours better than mine?
Are you really going to eat all of that?
Perhaps nothing remotely like either of those things.
And then another thought occurred to me.
The little girl in that photograph no longer exists.
Of course, I do not mean that she has died. I mean something much more ordinary and, in its way, more profound.
The child in my photograph existed for perhaps 1/500th of a second.
She is two years older now. Her face has changed. Her hair may be different. Her interests have changed. Her understanding of the world has certainly changed. She may have almost no memory of sitting in that Sydney park eating that particular piece of bread.
But I do.
Or, more accurately, my camera does.
And therein lies one of photography's strangest powers.
A camera preserves people who no longer exist exactly as they were.
The photographer owns the photograph. But who owns the face?
That question became more uncomfortable when I considered publishing the photograph on social media.
I took the picture.
It is my photograph.
But the face in it is hers.
Those two propositions are not necessarily contradictory. Yet neither are they quite the same thing.
Street photography has always lived in this uneasy territory between observation and intrusion. The great street photographers recorded ordinary human beings doing ordinary things:
Walking. Arguing. Kissing. Smoking. Playing. Waiting. Laughing.
Those anonymous people became part of the visual record of their times.
But most of them never volunteered for the job.
Today another dimension has been added.
Once, a photograph might appear in an exhibition or a book and be seen by a few thousand people. Put the same photograph on the Internet and it can potentially be copied, searched, altered, reposted and preserved indefinitely.
The shutter may have been open for 1/500th of a second.
The resulting image may exist forever.
And when the subject is a child, that discrepancy seems particularly important.
Australia: The photograph was legal to take
The photograph was taken in Sydney, so Australian law is the obvious place to begin.
The Australian position is relatively permissive toward street photography. The Arts Law Centre of Australia summarizes the general position clearly:
Australia does not have a general privacy right that allows someone simply to prevent another person photographing them in a public place, although particular locations and circumstances can be subject to restrictions.
Australia's federal privacy regulator adds an important qualification. A recognizable photograph can constitute personal information, but when a photograph is taken by someone acting in a personal capacity, the Federal Privacy Act generally does not apply to that individual's conduct.
So, my act of raising a camera in a Sydney park and photographing the child was not, merely because I lacked parental permission, automatically prohibited.
But May I take it? and Should I publish it? are different questions.
The Office of the Australian Information Commissioner recommends particular care with children's images, and describes obtaining informed consent as good practice when photographs are being published online.
That distinction interests me:
The law may permit the shutter to click.
Ethics must decide what happens next.
France: droit à l'image
France approaches the question from a strikingly different philosophical direction.
Article 9 of the French Civil Code begins with an extraordinarily simple proposition:
Everyone has the right to respect for his or her private life.
From this tradition has developed the French concept of droit à l'image - the right concerning one's own image.
Freedom of expression and artistic or journalistic interests can compete with image and privacy rights, so the answer is not simply that every candid photograph requires permission.
Context matters enormously.
But France's treatment of children is especially revealing.
Since 2024, Article 372-1 of the French Civil Code expressly provides that parents jointly protect their minor child's right to their image, in accordance with the child's privacy rights.
Even more interestingly, French law says parents should involve the child in exercising that right according to the child's age and maturity.
That last provision fascinates me.
It recognizes something that adults - including parents - sometimes forget:
A child is not merely somebody's child.
A child is also a person.
The French approach therefore asks us to think beyond who pressed the shutter and who owns the copyright.
It asks about the person inside the photograph.
America: Another Tradition
The United States approaches street photography from yet another direction.
American law places particularly strong weight on freedom of speech and expression, and privacy law is fragmented among federal constitutional principles and state laws.
There is no single American droit à l'image equivalent to the French model.
The distinction between expressive use and commercial exploitation is particularly important.
American states recognize varying forms of privacy and right-of-publicity protection.
As Cornell's Legal Information Institute explains, right-of-publicity law is principally concerned with unauthorized commercial exploitation of a person's identity, and the rules vary considerably between states.
A candid photograph used as journalism, documentary photography, commentary, or art, therefore occupies very different territory from the same child's face being used to imply that she endorses a breakfast cereal, clothing company or holiday resort.
The American instinct tends to begin with the photographer's freedom to observe and communicate.
The French instinct gives considerably more prominence to the photographed person's control over his or her image.
Australia, in some respects, lies closer to the American position when it comes to simply taking photographs in public.
None provides a complete answer to my question.
Because my question is no longer really a legal question.
What was she thinking?
When I first revisited the photograph, this was what interested me.
I enlarged her face. I looked at her eyes. She seemed intensely interested in the child beside her.
Perhaps she was envious. Perhaps amused. Perhaps suspicious. Perhaps simply lost in thought.
Then I realized something slightly disturbing.
I was constructing an inner life for a child I had never met.
She had never told me what she was thinking.
The camera recorded the configuration of her face. Everything beyond that was my interpretation.
That is another peculiar power photographers possess.
We don't merely capture moments.
We subsequently give those moments meaning.
A title changes a photograph. A caption changes it again.
Put Jealousy beneath this image and we see jealousy.
Call it Friendship and we begin searching her expression for affection.
The child has no voice in any of this.
She simply ate her lunch.
Then I changed the photograph
There is another layer to this particular image.
I began with a black-and-white photograph. Then I selectively returned color to it.
The bread became golden. Her hands acquired their natural skin tones. Her hat became brilliantly pink. Finally, I restored color to her face.
And suddenly she seemed more present.
The background remained monochrome, but the little girl stepped visually out of the past.
That experiment made the ethical question even more interesting.
Photography already selects reality. I had now selected it twice - first when I pressed the shutter and again when I decided what the viewer should notice.
The photograph became less documentary and more explicitly my interpretation of somebody else's moment.
I own those artistic choices.
But I still don't own the childhood they depict.
Imagine meeting her twenty years from now
This provides, perhaps, the simplest ethical test.
Imagine that twenty years from now I somehow met the woman this little girl became.
I showed her the photograph.
“That's you," I would say. "Sydney. More than twenty years ago."
Perhaps she would laugh. Perhaps she would love it. Perhaps she would ask for a copy. But perhaps she would look at me and ask:
"Why did you photograph me?"
And then:
"Where did you publish it?"
That second question is the one that matters.
Would I be comfortable answering it?
If the answer is yes, perhaps I have behaved responsibly.
If I would feel compelled to explain myself - to say that technically I was entitled to take the photograph, that she was in a public place, that the law permitted it - then perhaps the law was answering the wrong question all along.
The right to be forgotten
Children today may become the most photographed generation in human history.
Before they can meaningfully consent, their childhoods are documented by parents, grandparents, schools, sports clubs, tourists and strangers carrying phones.
The photographs accumulate.
Australia is itself wrestling with children's digital privacy. Its developing Children's Online Privacy Code explicitly treats photographs and videos as forms of children's personal information and places children's interests at the center of the emerging framework for covered online services.
There is an extraordinary irony here.
Previous generations worried that their childhood photographs might be lost.
Today's children may eventually worry that theirs can never disappear.
The little girl who no longer exists
I keep returning to that sentence.
The little girl in my photograph no longer exists.
Somewhere there is now an older child who once sat in a Sydney park wearing a floppy hat and eating bread.
I don't know her name. I don't know where she lives. I don't know whether she remembers that afternoon. And I certainly don't know what she was thinking when she looked sideways at the other child.
Yet I possess something that she may not possess herself:
A remarkably detailed record of one tiny instant of her childhood.
That is an extraordinary privilege.
Perhaps photographers should think of it precisely that way:
Not as ownership, but as custodianship.
The law can tell me whether I was entitled to stand in a public park and press the shutter.
Copyright can tell me who owns the resulting photograph.
Privacy law can tell me something about when and how it may be published.
France, Australia and the United States draw those boundaries differently.
But none can entirely answer the question that now troubles me most.
What do I owe the stranger whose moment I have preserved?
Perhaps the answer begins with recognizing that a public place does not make a human being public property.
Especially a child.
I still love the photograph.
Perhaps I love it more now because it makes me uncomfortable.
It reminds me why I became interested in street photography in the first place.
A photograph stops time - but only inside the frame.
Outside it, everything continues.
Children grow. Families move on. Parks change. Photographers grow older.
The moment disappears.
The photograph remains.
And perhaps that is why the responsibility of the photographer does not end when the shutter closes.
The photograph may belong to me.
But the life inside it never did.
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