Week 8: 7/10-7/16 Professional, legal, ethical issues
Misplaced: Ethics and the photographs of Vivian Maier.Let's start with an examination of the concepts of copyright and privacy.
Copyright is a limitation on the reproduction of an author’s work. Copyright is a property of the work that exists beyond the physical manifestation of the work itself and can be bought, sold, or transferred. It is legally brought into existence by the agency of the Federal government of the United States of America and is theoretically protected by the agency of the courts of the federal government. It is not an absolute property and is itself limited by the Federal government by the concepts of freedom of speech and fair use provisions as well as government claims on the secrecy of sensitive materials and protection of the national interest.
Privacy in this context is a limitation on the visibility of an author’s work (secrecy of private correspondence, etc). Privacy is not explicitly defined in the Constitution of the United States with the first precedent for a right to privacy being established in the Post Office Act of 1792 which “barred government officials from opening personal letters to monitor domestic subversion” (Chandler, 58-59). The elements of a right to privacy rest on several court cases including Griswold vs. Connecticut, Roe vs. Wade, HIPAA and as well as the adoption of the secret ballot in the 1890s throughout most of the United States.
These are both complex concepts with legal constraints that make them difficult to apply in a broad, general scope – especially in an archival context. As information technology has evolved the notions of copyright protection and privacy have struggled to keep pace. As the ability to reproduce a work has gotten simpler, cheaper, and more widely available, copyright protection has struggled to provide protection for authors of works. And with the growth of anonymous, broad scope planetary network delivery, protecting the ability to limit reproduction of one’s work has been severely compromised starting with the printing press in the 1400s to the photocopy machine to the OCR-enabled scanner. And with the move to digitize collection materials contained in archives (and the accession of digital-born materials), documents (in the broad sense) are no longer protected by the barrier of a physical wall. The archive has become porous to the world network.
The archivist now has to balance the demands for open access to materials with the legal and ethical claims of the documents author(s) (and their heirs) and assume the role of broker with or without the expertise to fulfill that role. As many of this week's optional readings illustrate, archivist place themselves and their institutions in a precarious position as they step forward into the roles of public presentation of archival materials from the traditional sphere of being more neutral with their collections - acting more as organizers and preservationists, controlling access, and allowing researchers to bear the brunt of legal/ethical challenges to the reproduction and dissemination of information found in archival collections.
Reading through Coffee’s article regarding the display of Vivian Maier’s photographs highlights this problematic state of affairs. The physical objects (prints, negatives, films) of Maier were legally purchased by several parties in auctions after the tragic event that Maier was unable to pay the rent on her warehouse holding these materials. While the author’s political opinions bleed out in the article, they do not overshadow the ethical and legal violation of several non-profit institutions who staged public showings of reproduced works from Maier’s negatives as well as the legal violation of those parties who have produced published works reproducing Maier’s photographs and distributed materials via YouTube. Coffee points out the ethical breaches of the professional standards of ethics by several institutions and blames this on something he labels neo-liberalism and a post modern ‘turn’ – while un-ironically using Vivian Maier’s plight to advance his own interests to publish an article, advance his agenda, and gain reputation through the commodification of that plight.
“It’s complicated,” as they say.
Unless someone brings a lawsuit or stirs up public opinion (which is an element of Coffee’s article), nothing much is going to happen on a legal basis - which is part of Coffee’s critique of the existing social/legal system – and now, I, as a reader of this article, am morally compromised in that I want to know more about the photographer and see her works from the vivid opening paragraphs of Coffee’s description (helping present her as a commodity) but know I shouldn’t be looking at illegally reproduced materials.
“It’s complicated,” as they say.
And the privacy of the person's depicted in the photographs? While Coffee doesn't address it, it does seem fair to ask the question of whether or not Vivian Maier obtained consent in all the case of her subjects? And how does that further cloud the issues surrounding this tragic story?
From an archival perspective, it's damn complicated and I'm heading off to surf. Ha!
Chandler Jr., A. D. & Cortada, J. W. (2000). A nation transformed by information: How information has shaped the United States from colonial times to the present. Oxford, England: Oxford University Press.
Coffee, K. (2014). Misplaced: Ethics and the photographs of Vivian Maier. Museum Management and Curatorship, 29:2, 93-101. DOI: 10.1080/09647775.2014.888817
Millar, L. (2017). Archives: Principles and practices (2nd ed.). New York, NY: ALA Neal Schuman.