Alex with Camera
On a visit when she was 10, my granddaughter Alex borrowed one of my old cameras and began taking pictures of everything in sight. She wasn’t the least bit intimidated by all the dials and buttons on a high-end SLR camera. I set it on automatic, and she just banged away. Nothing seemed to escape her notice, including the overhanging tree branches seen by looking straight up through the skylight in our living room. They were duly captured in a photograph. Since the camera was digital, I had no qualms about letting her shoot to her heart’s content, because there was no expensive film to process.
My granddaughter instinctively embraced advice a photography teacher once gave to my class: “Don’t be afraid to take a bad picture.” I thought back to when Alex was barely walking, and she grabbed everything within reach. You had to hover close to make sure this little omnivore wouldn’t put something dangerous in her mouth. Now she was taking pictures omnivorously, which was the best way to learn. There was no need to hover close. She could click through all the pictures she had taken and delete the bad ones herself.
I’ve given some thought to what is meant by “taking” a picture. The word “take” is one of the most common in the English language and can have any number of meanings. Do you “take a photograph” the same way you “take a look”? Yes and no. In both cases, you can dispense with the word “take” altogether, and simply use “photograph” and “look” as verbs and mean the same thing. But as any photographer can tell you, taking a picture involves far more than the mechanical act of pressing the shutter on your camera. If you want to photograph another person, you have set in motion a subtle transaction that involves taking something that belongs to someone else. This is why it is usually considered polite to ask for permission to take someone’s picture. It’s also why you can’t use such images for commercial purposes without compensating the subject or at least obtaining a release.
Small children who start out grabbing everything in sight must learn not to take what does not belong to them. Photographers are similarly constrained not to take pictures of everything in sight. This was a lesson I learned the hard way in the aftermath of 9/11 —and the resulting security crackdown. I tried to take pictures of cranes along the waterfront in the Red Hook district of Brooklyn and was told my camera would be confiscated if I didn’t stop immediately. In France, copyright law covers any man-made object, including buildings. The Eiffel Tower is now in the public domain, but not the lights that were installed on the structure in 1985. As a result, photographs taken of the Eiffel Tower at night may not be reproduced without permission of the copyright owner. Similarly, the Pebble Beach Company has trademarked the Lone Cypress, an ancient tree perched on a granite outcropping along the California coastline, south of Monterey. A sign warns tourists that any photographs or renderings of the tree for commercial purposes are forbidden without written permission of the Pebble Beach Company, which uses the tree as its logo.
“There is no way to suppress the tendency inherent in all photographs to accord value to their subjects,” Susan Sontag wrote in On Photography. Those who live in the public eye — athletes, entertainers and the like — are acutely aware of this and expect to be compensated for any commercial use of their images. Courts have likewise ruled that private citizens have a reasonable right to privacy, although not if they are photographed in a public space.
Some years ago the photographer Philip-Lorca diCorcia was taken to court over an exhibition of large-format photographs of pedestrians on a sidewalk in Times Square. The subject of one the pictures, an Hasidic Jew, came across his image in an exhibit catalog and filed suit. He claimed that his privacy had been invaded and that the photograph violated religious strictures against the making of “graven images.” The judges in the case conceded that the plaintiff may have found the photograph deeply offensive on religious grounds. But they ruled that diCorcia’s right to free artistic expression under the First Amendment trumped the plaintiff’s privacy rights.
One does not often encounter the biblical injunction against the making of graven images in a civil court case over intellectual property rights. The commandment reads: “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.” As broadly interpreted by the plaintiff in the diCorcia case, this stricture would put every photographer in the world out of business, since it would preclude all subject matter in heaven and earth, as well as in the water under the earth. It should be noted, however, that this sweeping injunction is followed by the words, “…you shall not bow down to them or serve them.” In context, the commandment would appear to forbid worshipping those images, not taking them just to put on Facebook or Instagram.
The word translated as “image” in the Old Testament first appears in the biblical creation story when God says, “Let us make man in our image.” The word (Tzelem in Hebrew) can mean either “likeness" or “idol,” depending on the context. In sense, you could argue, as the plaintiff in the diCorcia case did, that God owns the copyright to everything in creation, since he made them — especially those litigious creatures he fashioned in his own image. As a practical matter, people should be entitled to some control and compensation for the use of their own images. This is especially true of people like me who make or take such images. Yet I would hope I never forget where those images ultimately originated, even if I am the one who snapped the picture.