Catch and (Not) Release
Monday, March 27, 2006; 4:06 PM
Probably the most frequently asked question when I lecture or teach involves how my wife and I make arresting images of people.
In virtually all cases, the questioners talk about our photographs of people captured in telling gesture or action-- "caught in the act of being themselves" as the late Allen Funt used to say on his Candid Camera television show.
Such pictures don't really just happen, I respond. Years of practice watching people and photographing them hones one's skills for capturing what Cartier-Bresson called The Decisive Moment: when all elements of lighting, gesture and composition come together to make a good photograph. Too, there is the important element -- when one's subject is aware that he or she is being photographed -- of making the subject feel comfortable, or at least not threatened. This often can be accomplished simply by eye contact, talking, smiling--yes, even asking permission to make a picture -- so that the subject finally forgets all about the photographer's presence.
That's the short response to a question about technique. But in many cases, too, the first question is quickly followed by one asking whether I got a model release from my subject to allow me to publish his or her picture.
Then my answer, though just as easy, is not so simple.
"Model releases are important to avoid lawsuits," declares the authoritative book Professional Business Practices in Photography, (Allworth Press, $29.95). Prepared by the American Society of Media Photographers, the book showcases the practical wisdom of an organization that has represented the interests of working professional photographers (myself included) for more than fifty years. (I have been a member for 20 of them.)
"The purpose of the release is to protect the photographer against an invasion-of-privacy lawsuit. Generally these actions arise when an image is used without authorization for purposes of 'trade or advertising.' In addition, a release may protect the photographer against a libel suit."
"Libel suits," the ASMP volume goes on, "generally allege that the person in the image has been subjected to some form of embarrassment, loss of status, etc., by virtue of the image's publication. The risks in these areas are extremely serious. Legal actions, when instituted, often involve claims of many hundreds of thousands of dollars..."
So why then, given all the above from an organization I support and admire, do I rarely, if ever, bother to ask the people I photograph to sign a model release? Am I not opening myself up to successful (and potentially highly punitive) legal challenge?
That certainly was the case some 25 years ago for the New York Times when Clarence Arrington, a private citizen, successfully sued the New York Times Magazine for its 1978 cover story on the emerging Black middle class. The cover photograph for the article prominently featured Mr. Arrington in a well-tailored suit and carrying a briefcase as he strode the sidewalks of New York's financial district. The color photograph was accompanied by the headline "The Black Middle Class: Making It."
Though the picture assuredly showed Mr. Arrington in a favorable light and though the tone of the Times Magazine piece was overwhelmingly positive, the photograph was made without Mr. Arrington's knowledge or consent. It was a classic "street image" made by a photographer who had a mandate from his bosses to illustrate the premise of the article. Over apparently little more than his pique at not being told he was being photographed, and the reported fact that he did not agree with the magazine story's premise, Clarence Arrington sued the New York Times Company and won.
I venture to say that, if the episode had ended there, I today would be schlepping a pad full of model releases with me every time I left the secure confines of my home.