Pro-Imaging

15 September 2008

Much has already been written regarding photographer Jill Greenberg’s  Photoshopping of the John McCain images she shot for The Atlantic. For those of you who are not aware of the Greenberg back story, in a nutshell

Ms. Greenberg (no relation) is a self-proclaimed “hard-core Democrat”.  She was hired by The Atlantic to shoot Senator McCain for its cover.   According to the New York Post, she proceeded to trick him to stand over light sources to a deliberately unflattering effect, and afterwards, heavily Photoshopped the images to portray Mr. McCain in an unbecomingly manner.  Subsequent to the shoot, she posted additional image(s) on her own website, one of which contained blood drops streaming down from the Senator’s mouth and the copy “I am a Bloodthirsty Warmongerer”.

            Go to PDN online, the New York Post (Sept. 14, 2008) and especially the Atlantic’s own site for additional background and facts. Ironically, The Atlantic ran a story by Kenneth Brower in its May 1998 edition entitled “Photography in the Age of Falsification (http://www.theatlantic.com/issues/98may/photo.htm

            There are numerous articles, rules and codes regarding photography in this “age of falsification”.  These codes and standards are used by news agencies, magazines and courtrooms and serve to permit and prohibit, the extent to which imagery may be altered for their respective purposes.  We urge each of you to be aware of the ethics involved when altering imagery.  It is a subject we teach at The School of Visual Arts.

         Perhaps the best set of guidelines are those of The National Press Photographer’s Association  (http://www.nppa.org/professional_development/business_practices/ethics.html)

Other notable references worth more than a look:           

            http://cbe.ivic.ve/ftp/clasebioest/pdf/Digital_Imaging_Ethics.pdf

            http://blogs.reuters.com/blog/2007/01/18/the-use-of-photoshop/

            http://commfaculty.fullerton.edu/lester/writings/chapter6.html

            http://photoshopnews.com/20 05/04/03/kate-doesnt-like-photoshop/

            http://www.scottkelby.com/blog/2007/archives/693

            http://forensicphotoshop.blogspot.com/2007/12/rules-of-engagement-for-using-photoshop.html

You can draw your own conclusions as to whether based on the reports of Ms. Greenberg’s activities you believe that she has or has not, violated ethical standards. A full discussion of the ethical issues raised can not be done in this post.  Nor do we address  here what effects such behavior may have on one’s professional reputation.  Rather, we bring the “Greenberg matter” to your attention for a wholly other purpose – its possible effect on your bank account.

            Regardless of whether your written contract, agreement, invoice or if (God forbid), you are operating without a written agreement, all contracts by law contain what is called an “implied agreement to deal in good faith”.  In plain English, a party to a business transaction or agreement is required to be “fair” and act in good faith with respect to the other party.  Such requirement exists in virtually all states and again, does not require an explicit, written clause be in writing.  It is part of all transactions.

            If a client believes that the photographer has not performed his/her services in good fait h and without its permission or consent intentionally or negligently caused the client embarrassment, diminution in reputation or lost income, the client can assert that the photographer is in breach of his agreement or contract.  The client would/could then refuse to pay the photographer and/or seek monetary damages from him/her.  Theoretically, a photographer who intentionally generates images which are calculated to distort, make the client, its product, look bad or are otherwise derisive, defamatory, libelous, etc. could subject him/herself to a lawsuit seeking punitive damages.   While Mr. McCain is a public figure and libel cases are exceptionally difficult to bring against such persons, most of the people you shoot are not public figures.   Additionally, you really do not want to pay a lawyer to find out if the local mega car dealer or former city council member or current president of the local PTA are “public figures” for libel or slander purposes, do you?

            A shooter creating images for artistic or parody purpose s on his/her own initiative would have no such concerns.  If however, you are being paid to create imagery on behalf of a client whether it be editorial or advertising, and the images were shot in such manner as to violate the spirit of your agreement, you are governed by the legal concepts of fair dealing and implied good faith.  You simply do not have the freedom that you possess by creating work on spec or for parody or as fine art or in any other situation where you do not have a client who is paying for your services or licensing your imagery.   If for example, you intentionally disparage a brand, trademark, product or model using such product, litigation may ensue.

            If you have reservations against shooting particular products, persons or categories stand by your convictions.   We provide in our representative/photographer contracts that a photographer may refuse an assignment for any reason or no reason at all.   Intentionally doing20a job in a manner not contemplated or authorized by your client can result in non-payment or worse, getting sued.   It is our view that professional photographers edge closer toward extinction each time the authenticity of a widely circulated image comes into question.

September 15, 2008

Edward C. Greenberg, PC

570 Lexington Ave.

17th Floor

New York, NY  10022

(212)697-8777