Spencer Tunick’ s art captured by policemen’ s phones

In the early hours of Sunday June 5th, 2016, the renowned American photographer Spencer Tunick brought together 6,132 people for a large-scale nude shoot. The broad participation was surprising, not so much for the open-mindedness of its participants, but for the courage it takes to stand naked in the cold dawn of the capital city. As a result, Bogotá is now part of the growing list of cities where thousands of people have posed to be part of an artistic photography.

The event initially took place at Plaza de Bolivar, where most of the pictures were taken. Then, Tunick chose a group of women who were separated from the rest of the participants, to capture them with his lens in front of the Capitol and the Centro Cultural Gabriel García Márquez. They also took photographs near the Colón Theatre. But between the changing of locations and poses of the models, something that should have not been part of the artistic event happened. According to sources from Fundación Arteria –which was in charge of the logistics of the event- a group of policemen used their own cell phones to take pictures to the group of women.

The outrage was evident among the photographed women and others who witnessed the incident. Morally, this can be perceived as an improper conduct from the policemen who made their own fixation of the naked bodies, rather than ensuring the safety of the participants. Nonetheless, if these women were in public space, is there a legal prohibition to photograph them?

The case can be approached from different perspectives. On one hand, analyzing it from the vision of image rights and right of publicity, Law 23 of 1982[1] only grants the right to prevent unauthorized exhibition and commercial exploitation. For this reason, models cannot prevent policemen from taking pictures for personal private purposes, as long as they do not intend to either exhibit or make them available, for example, on social media.

On the other hand, the fact that women were portrayed naked, may suggest that the conduct of the policemen would infringe the right to privacy of the models. However, the Constitutional Court has “(…) admitted the possibility of photographing anyone who participates in a public demonstration, as it considers that whoever does it, has given up their privacy and intends to be seen and heard by those who are there.” (Free translation)[2] Consequently, under these circumstances the privacy of women is not affected by a person who takes nude pictures of them. According to the Court, they gave up their right to privacy as soon as they voluntarily went out to a public place, no matter who took their picture.

A less orthodox solution could be to consider the people who participated in Tunick’s photograph as part of an artwork. This is based on article 3 of the Andean Decision 351 of 1993, which defines works as “(…) any original intellectual creation of artistic (…) character susceptible of disclosure or reproduction in any form.” On this regard, the arrangement of the various participants who took part in collective action, later fixed in a photograph, is an original intellectual creation capable of being captured by photographic means to be disclosed and reproduced. Thus, even before being photographed by Tunick, women were part of the performative component of his work and, therefore, the policemen would be violating the author’s right of reproduction.

This argument is valid even against the freedom of panorama, established under subparagraph h of Article 22 of the Decision 351[3]. This exception to copyright allows the reproduction of works permanently located in a public space. In this case, even though the work was exhibited at Plaza de Bolivar, it lacks the permanency element required for the exception.

However, this solution is not guaranteed. The policemen may still argue that they reproduced a current event by means of photography and the work of Tunick was barely captured in the course of events, relying on another exception and limitation to copyright.[4] This argument could only be rebutted if they fail to demonstrate that such reproduction is justified by a journalistic purpose. But if the policemen are able to prove that the photographs were intended to be used in a news blog, such use would be covered by the exception. In fact, not even image rights legislation could prevent such use of the portraits since Article 35 of Law 23 of 1982[5] contemplates the events of public interest as a justification to freely exhibit a person’s portrait.

All in all, Spencer Tunick’s visit, plus the actions of some policemen, allows us to acknowledge the limitations of Colombia’s image rights legislation. With respect to privacy, it appears that public demonstrations constitute a waiver which allows others to freely take pictures of any person. Conversely, copyright cannot always stop people from taking this pictures. The exceptions and limitations regime permits the reproduction of artworks under specific circumstances. As it seems, the only way to protect your own privacy is by staying home and closing all the curtains.

[1] “Article 87. Any person shall have the right to prevent, subject to the limitations specified in Article 36 of this Law, his bust or portrait from being exhibited or displayed commercially without his express consent or, in the event of his death, that of the persons mentioned in Article 85 of this Law. The person who has given his consent may revoke that consent, subject to appropriate indemnification for prejudice.

[2] Corte Constitucional, Sentencia de Tutela T-235A del 4 de abril de 2002, MP. Eduardo Montealegre Lynett.

[3] “h) undertake the reproduction, transmission by broadcasting or cable distribution to the public of the image of an architectural work, work of fine art, photographic work or work of applied art located permanently in a place open to the public;”

[4] “f) reproduce and make accessible to the public, in connection with the reporting of current events by means of photography, cinematography, broadcasting or cable distribution to the public, works seen or heard in the course of such events, to the extent justified by the informatory purpose;”

[5] “Article 36. Publication of a person’s portrait shall be free in so far as it is related to scientific, educational or cultural purposes in general or to facts or events of public interest or that may have occurred in public.”