The Centre for Innovation Law and Policy’s Institute for the Study of Law, Technology and Culture
Presents
A Colloquium on Law, Photography and Other Recording Devices
Date: Friday, March 27, 2009
Time: 9a.m – 2:00 p.m. (including lunch)
Place: Faculty Common Room, Flavelle House, 78 Queen’s Park
*Lunch will be provided and seating is limited, so please RSVP to centre.ilp@utoronto.ca*
Agenda:
9-9:15 Introductions
Abraham Drassinower (Law, University of Toronto)
9:15-10:45 Panel 1: The Rights of Photographers and the Rights of the Subjects of Photographs:
Christine Haight Farley (American University Washington College of Law): Art Photography as Legal Category
Andrea Slane (Centre for Innovation Law and Policy, University of Toronto): Fear of Webcams and the Privacy Harms to Children and Youth Featured in Child Pornography
10:45-11:15 break
11:15-12:45 Panel 2: Interdisciplinary Perspectives on the Legal Challenges Raised by Visual and Audio Recordings:
Louis Kaplan (Director, Institute of Communication and Culture, UTM and Graduate Department of Art, University of Toronto): Ghosts in the Courtroom: The Strange Case of William Mumler, Spirit Photographer
Simon Stern (Law, University of Toronto): Risk Analysis, Permanent Electronic Recordings, and Omniscient Narration
12:45-2:00 Lunch and informal discussion
Abstracts:
Christine Haight Farley: Art Photography as Legal Category
How do speech rights measure up against privacy rights? In the case the right of the photographer versus the right of the photographed, much depends on whether the photograph is "art." In the 2006 case of Nussenzweig v. diCorcia, in which a photographer captured a candid shot of Orthodox Hasidic Jew who took offence to the artwork and its sale, a New York court ruled that the subject's privacy rights did not extend to artistic speech. Remarkably, that court was untroubled in both announcing an "Art exception" to commercial speech, and applying that exception in the case of photography. But these are thorny issues for courts to determine, especially as the history of law's treatment of photography demonstrates how courts strain to understand the artistry in photography.
This case is one example of how art achieves a privileged status in private disputes. In privacy law, right of publicity law and trademark law, judge-made doctrines except art from liability for violations of property rights. In these cases, courts are willing to state the vulnerable proposition that art cannot be deemed commercial speech even when undertaken for profit. Although these cases acknowledge that value judgments are inherent in determinations of commercial speech, they imply that the category of art is objective. What these cases reveal is that financial success of artists rather than complicating their defense, aids the court's acceptance of their status as artist.
Andrea Slane: Fear of Webcams and the Privacy Harms to Children and Youth Featured in Child Pornography
This paper will discuss the growing Canadian case law dealing with the harms suffered by children and youth who are the subjects of photographs which qualify as child pornography under the Criminal Code. Proceeding from the discussion of harms to the subjects of sexual abuse photographs in R. v. Sharpe, subsequent case law has applied this discussion to the further categories of photographs which do not record sexual abuse, but rather where the harm lies in the taking of the photograph itself and/or in its distribution outside of its intended context. The paper considers the dignity and autonomy based interests put forward in this case law, and reflects on how the privacy interests articulated therein are and are not reflected in popular anxieties about youth use of webcams and other visual recording devices.
Louis Kaplan: Ghosts in the Courtroom: The Strange Case of William Mumler, Spirit Photographer
In the spring of 1869, William Mumler appeared before Justice John Dowling in the Court of Special Sessions at the Tombs Police Court in New York for a preliminary hearing on an unusual charge. For Mumler had been accused of fraud and larceny for making and selling photographs that purported to bring back the spirits of the dead on glass plate negatives. This sensational and highly publicized case put the religious movement of Spiritualism and its belief in communication with the dead itself on trial. It featured colorful witnesses like the impresario P.T. Barnum who stated that he knew a “humbug” when he saw one and the Wall Street banker Charles Livermore who testified that Mumler’s images had summoned the ghost of his dearly departed wife. This presentation will take up the Mumler spirit photograph case at the intersection of photography and law. It will examine how this fascinating case raised questions about the status and meaning of the photograph as evidence in a court of law. It also will review the the testimony of the witnesses and the legal arguments offered by the prosecution and the defense about Mumler’s contested photographs whether deemed to be darkroom tricks and manipulations or Spiritualist proofs and images made by supernatural means.
Simon Stern: Risk Analysis, Permanent Electronic Recordings, and Omniscient Narration
This paper will discuss the s.8 jurisprudence relating to "permanent electronic recordings." The Supreme Court has permitted a limited form of "risk analysis" in s.8 jurisprudence, which makes surreptitiously gathered evidence admissible if the accused "assumed the risk" that an undercover police officer would have access to that evidence. However, the Court has rejected the idea that "risk analysis" may justify collection of the same evidence by electronic means, because of the danger that such methods pose to a free and democratic society. The U.S. has taken a very different view, not only allowing electronic recording devices in contexts where they are prohibited in Canada, but also extending the sweep of the "assumption of risk" to forms of evidence not captured in the Canadian jurisprudence. I argue that in the U.S. version, the rule ultimately produces the equivalent of an omniscient narrative perspective which, because it cannot be limited in advance only to criminal wrongdoers, in effect governs the relationship between law enforcement and citizens more generally. This insight from narrative theory provides an additional justification that helps to clarify the rationale for the more constrained version of the rule that the Canadian courts have adopted.
Biographies:
Christine Haight Farley is Professor of Law and Associate Dean for Faculty and Academic Affairs at American University Washington College of Law. Professor Farley joined the law faculty at American in 1999 and was appointed Associate Dean for Academic Affairs in 2007. Professor Farley teaches courses in Intellectual Property Law, U.S. Trademark Law, International and Comparative Trademark Law, and Law and the Visual Arts. In addition, she serves as Co-Director of the Program on Information Justice and Intellectual Property. Before joining the faculty, Professor Farley was an associate specializing in intellectual property litigation with Rabinowitz, Boudin, Standard, Krinsky & Lieberman in New York. Prof. Farley's scholarly work is in the areas of on intellectual property, international law, and art law. Her current projects study the intersection of art and IP; and the unstable basis of rights in the development of trademark law.
Andrea Slane is the Executive Director of the Centre for Innovation Law and Policy (CILP) at the University of Toronto, Faculty of Law. She received her J.D. (Honours) from the University of Toronto in 2003, and was called to Ontario bar in 2004. She has a PhD in Comparative Literature (Cultural Studies) from the University of California, San Diego. Before joining the Faculty of Law in 2006, Andrea practiced trade-mark, copyright, privacy and technology law. She has chaired two international symposia on Online Child Exploitation on behalf of the CILP, in 2005 and 2007. She has published articles on unsolicited bulk email, online hate complaints, and international online defamation cases. She has done policy research for the Department of Justice (on online hate), and through the Contributions Program of the Privacy Commissioner of Canada (on information sharing between private entities and law enforcement), and is currently working on a project on online child exploitation crime prevention materials and strategies, funded by Public Safety Canada. She will join the Faculty of Criminology, Justice and Policy Studies at the University of Ontario Institute of Technology in Oshawa in May 2009.
Louis Kaplan is Associate Professor of History and Theory of Photography and New Media in the Graduate Department of Art at the University of Toronto and Director of the Institute of Communication and Culture at the University of Toronto Mississauga. His latest book on The Strange Case of William Mumler, Spirit Photographer (University of Minnesota Press, 2008) has recently been nominated for the John Hope Franklin Publication Prize of the American Studies Association. He is also the author of Laszlo Moholy-Nagy: Biographical Writings (Duke University Press) and American Exposures: Photography and Community in the Twentieth Century (University of Minnesota Press). He has published numerous essay in journals and collections in the fields of art history, visual culture, photography studies, and Jewish studies. He is a member of the international advisory board of the journal Photography and Culture and a member of the advisory board of the Jackman Humanities Institute at the University of Toronto.
Simon Stern is Assistant Professor in the Faculty of Law and the University of Toronto. He completed his Ph.D. in English Literature at UC Berkeley in 1999 and graduated from Yale Law School in 2002, where he was Editor-in-Chief of the Yale Journal of Law & the Humanities. After law school he clerked at the U.S. Court of Appeals for the Ninth Circuit, practiced litigation at Shea & Gardner in Washington, D.C., and then served as a Climenko Fellow and Lecturer on Law at Harvard Law School. Prof. Stern's primary areas of research include comparative criminal law and procedure, law and literature, law and cognitive psychology, and sexuality and the law. In addition to his appointment on the Faculty of Law, Prof. Stern is also an Associate Member of the graduate faculty in the Department of English, an affiliate member of the collaborative program in Book History and Print Culture, and a member of the steering committee of the Sexual Diversity Studies program.