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Improper Photography

Improper Photography. What a chillingly lovely and delicate phrase, “Improper Photography“.

Update: This thread appears to have awoken recently with several new commenters adding their thoughts to the Comment section below. Feel free to add yours as well.

I had run across a headline on one the many online news feeds that I read, “Webster Man Arrested for Improper Photography”.

My first though was, ‘oh, my students do that all the time!’ But no. It is a legal term and it is a state jail felony in Texas.

The story basically goes that a guy was arrested in Webster, Texas on a charge of Improper Photography or Visual Recording. He was reportedly seen photographing preteen girls playing soccer. Webster Police Chief Ray Smiley was quoted as saying, “The photographs were from the knee to the neck”, and noted that none of the girls’ faces was pictured.

The article goes on to say that police seized “a digital camera, 16 memory cards, an iPod, six USB flash drives, a computer and a collection of pornographic pictures, DVDs and magazines”. All items apparently legal in and of themselves.

The crime here is that he “is accused of photographing the children without consent with the intent to arouse and gratify a sexual desire“.

Certainly, the state has a need for statutes to protect victims of abuse, and in fact has an obligation to protect people, but the wording of the statute is what I find chilling.

_____________________________________________________________

§ 21.15. IMPROPER PHOTOGRAPHY OR VISUAL RECORDING.
(a) In this section, “promote” has the meaning assigned by Section 43.21.
(b) A person commits an offense if the person:

  • (1) photographs or by videotape or other electronic means visually records another:
    • (A) without the other person’s consent; and
    • (B) with intent to arouse or gratify the sexual desire of any person; or
  • (2) knowing the character and content of the photograph or recording, promotes a photograph or visual recording described by Subdivision (1).

(c) An offense under this section is a state jail felony.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.

_____________________________________________________________

Now there is a seriously high ‘creepo ‘ factor operating here in this case. I’m not disputing that the charges might be warranted.

But I am also creeped out by what appears to be a legally prohibited thought crime. “intent to arouse or gratify the sexual desire of any person” That’s like kind of really broad, isn’t it?

Here is a pic I saw in a blog piece about another arrest under this statute. It would certainly seem that this photo could be seen as evidence of a similar violation.

Improper Photography?

I shoot lots of photographs of all kinds of subjects including street photography and pix of people on those streets, and in other places in the world. For example, I like to shoot people in museums looking at ‘art‘. A subset of these show what many would consider ‘inappropriate behavior‘.

Vincent Van Gogh - Starry Night Flash at MOMA

Forbidden flash in the museum. Now, how is anyone else to know my ‘intent‘ ? Maybe I really like museum ‘flashing’ 😛

Something About to Happen

Bad Behavior about to happen in the museum.

Odd Inappropriate Behavior in the Museum

I saw lots of people acting oddly in the context of the seriousness of the museum venue. This kid was just one of the many people I photographed that day. I found their actions mildly funny, in the ‘ha-ha’ sense.

But, what if I’d cropped it…

The Cropped Version - For Illustrative Purposes Only

This kind of fits the description of the objectionable ‘Improper Photography’ cited above. Again, who is to decide my intent? I certainly don’t want some overly-anxious helicopter parent, or passerby, or museum guard, etc. to decide my legal fate for taking a quick grab shot; one out of hundreds.

I recently wrote a post about a bad use of Adobe Photoshop in a lingerie catalog,
Victoria’s Secret Catalog Lingerie Model Cruelly Mangled in Bad Photoshop Mistake Disaster.
Technically, several of the images might fit as a violation of the statue being that the models didn’t give me consent to rephotograph them even though they most likely did consent to the original photographer. Even the scans of the catalog fall under ‘other electronic means visually records’. I posted them, so maybe someone else gets off on it? Sheesh.

Too bloody poorly written a statute is what I’m saying. Legislators! Get your heads out of the corporate lobbyist trough long enough to get some oxygen and craft a better law!

Disclaimer: None of my photographs were taken, recorded or scanned electronically or otherwise in, or even near, the state of Texas. Oh, and my intent does not come under this wobbly ordinance either.

Update: Feb. 1, 2010 Teen accused of improper photography
(scroll to bottom of article, before the comments there)
A 17-year-old Lake Travis High School student has been charged with improper photography after nearly 150 close-up photos of females’ bodies were found on his cell phone, according to an arrest affidavit filed Monday .

All 39 females were clothed in the photos, but they appeared to be taken without their consent, the affidavit says.

Anthony Marco Gigliotti was reported Jan. 6 when a student saw him photograph a girl from behind during class, the document says.

According to an affidavit, Gigliotti told an assistant principal that he took the photos because sex education was lacking at the school.

Again, the state has a need and obligation to protect citizens.

So, What have you got on your cell phone… on your hard drive… on your mind?

  35 Responses to “Improper Photography or What the Texas Troopers Thought Police Think You’re Doing with That Camera Hanging Around Your Neck”

  1. As a Photographer who shoot pictures all over the world, I am certain some of those pictures would fall under the law of “Improper Photography.” I think that the public should be protected from unscrupulous persons, but someone needs to take a good look at how that should be done relative to photography.

    • Thanks for your comment Bernard.

      I totally agree.

      In the years after the World Trade Center bombings, there was an increase of misplaced threats against photographers. Add to that these kind of statutes which unwisely splatter all photographers as potential bad guys/gals.

      ‘Unwisely’ in that real dangers may be missed by over-zealously misdirected alertness.

  2. Just one question…..does that model’s fingers go with that hand, or is there some “improper” Photoshop action going on???????????????
    Great article however!!
    Love the museum action…….

  3. Well, after all it is Texas…….they have their own rules there….yee-haw

    • Now, that’s just geographicalistic prejudice there, misty! 😛

    • And here I was thinking that the rest of the country had their own laws! lol We Texans are an unique bunch and pride ourselves in that fact. At least we don’t have a mayor telling us we cannot have a soft drink larger than 16 ounces.

  4. Well after all this was a soccer match and all (legal) activity goes on from the knees down and above the neck. Maybe he was looking for illegal moves that the refs missed.

    And though i might be accused of geographicalisticism, I know a Texas photographer who would probably find this awful, though she’s actually from Austin.

  5. Austin is its own little geopolitical island in the sea of Texas, or so I’ve heard……….

  6. I agree with this author, and figures only Texas would come up with stuff like this.

    Freedom OF Expression or Freedom FROM Expression?
    Freedom OF Speech or Freedom FROM Speech?

    I see this entire situation as a pure shift to numbing people to accept subjective censorship, with no merit.

    If the real issue (which I doubt) is the alleged creepy thoughts or actions someone may have — taking away the medium that inspires their subjectively deemed intentions as Images, Songs, Art, Words — does not stop their thoughts. So it does nothing.

    So what next, we control and track thoughts too?
    A ministry of thoughts releases guidelines on acceptable art and imagery?

    I say keep it simple. If you’re in public you’re fair game.
    Just ask the paparazzi leaches that can publish images on national covers that are twisted to not be true at all. Those are beyond “Improper” and commercially beneficial without consent, but continue on.

    This “Intention” determination is flakey. I could possibly see some value IF:

    1) You put someone on an ad campaign without a release, or consent even though they are in public. However existing laws cover that. But news industries make money showing pictures without consent, and not always showing people at their best.

    2) You grossly modify a once “pure” image obtained in public and distribute it and it defames them. If they prove that it was malicious intent existing laws already cover that.

    Aren’t people allowed to have different view points anymore?
    Isn’t that what art is?
    Or are they trying to directly enforce what that is too?

    3) No one is FOR crazy people doing twisted things in their minds. But this type of censorship of thought or personal mental intent soon leads to a bad state of affairs far greater than one individual’s personal fetishes.

    Soon any Photos or films documenting a corrupt politician, or anything else in public for that matter can be seized by the Gov’t as Improper Photography.

    “Your honor, these images of the president clearly capture him at his worst. These are therefore Improper photography. This photographer is also not of either Republican or Democratic party and therefore a traitor to this nation. Releasing these photos is a defamation of our nation’s character. No one would show our nation’s officials improperly without wanting to do harm to this country. Therefore we find this photographer guilty of “Terrorism”, since these are clearly ‘Intentions of Tyranny’.

    I will have to re-read 1984. :)

    • Al,

      It is scary.
      Politicians and other persons with presence in the public media domain have been judged by the courts to have limited recourse because of their ‘public status’.
      This extends to such individuals as wannabe celebs, and entertainment figures, including sports entertainers.

      What is more scary is that there is a shrinking protection for photographers of non-celebs. And by ‘photographers’ I mean anyone with a camera or photo-enabled device.

      Thanks for your comment.

  7. Ken,

    I am with you on this. There are several threads I have started on this over at Nikon Gear. This case seems to be following a pattern where underage girls are photographed and either its “knees to neck” as we have here, “close ups of the groin or buttocks”, or pictures taken “without regard to the overall appearance of the person.”

    The law is so vague there is really no way to know when you are safely shooting on the street.

    In Webster the defendant was reported to be a hospital pharmacist. these guys are well paid and he would probably lose his license if convicted. He has a lot at stake, so a constitutional challenge is possible here, if he has some money.

    Google “Texas improper photography” and you will find several other chilling cases in Victoria, Lubbock and San Antonio.

    Meanwhile I shoot pictures of beautiful adult women on the street, with their head included, which can be seen at “Ron’s Photo Houston” on flickr.

    • I have more to add here. I believe the authorities are trying to leverage some successful prosecutions in the Federal child pornography in these improper photography charges where there has been no invasion of privacy. In other words the don’t show anything anyone else could have seen who was there at the time.

      In ones I am thinking about the children were photographed wearing swimwear or underwear or were otherwise covered up. They were not engaged in any sexual activity, but clearly the intent of the photographer was to make the child appear as a sex object. As I recall the court decisions were a bit vague in their language and made reference to camera angles and focusing on certain areas. I don’t recall if the heads were cut off. these images, while clearly wrong and exploiting the children probably fell short of the “explicit sexual activity” standard in the statute. However, it appears to have established the principle that innuendo coupled with bad intent is enough.

      There is something else I see here in the drafting of the Texas statute. By relying on intent rather than content, the drafters are trying to circumvent first amendment rights that make it difficult to outlaw content. Of course the end result is a vague law.

      This statute can be interpreted to require a separate consent for capturing the image and for uploading it to the internet, or transmitting it in the language of the law. That means uploading any sexually suggestive image, even when taken with consent, is a violation of this law. An Austin attorney, Lance Stott, prepared a very good brief on this point which can be accessed here:

      http://www.scribd.com/doc/19459209/Writ-Draft

      Additionally, the statute makes the images toxic in much the same way that the Federal child pornography law does. If you receive an image that would would be improper photography on your mobile phone and forward it to a friend, its a felony.

      My deepest fear is that these prosecutions involving photographs of underage girls will embolden the authorities to move on to images of adults and a greater variety of images, not just the ones that are of certain body parts. How about if a woman is walking down the street wearing an extremely sexy outfit simply to attract attention? What about prostitutes who dress to attract sexual contacts?

      If this guy is convicted in Harris county, its open season on photographers in Houston.

      -Ron

      • Hi Ron,

        Thanks for the detailed comments.

        I haven’t read the brief you linked (thanks)but it is quite a conundrum.

        “relying on intent rather than content” is the frightening part in a nutshell.

        And, if the intent makes the content toxic, it is hard to see how that toxicity can rub off on someone else who might not have the same intent. What about the other way around?

        I took a few photos years ago of an extended family gathering. At one point a child who was being bathed popped out and I got a great shot of him, with his mother and police officer father, and his grandparents. Our intent was familial and goodhearted.

        Can the toxicity go the other way? Can any of the participants be tainted by the intent of a viewer of those images?

        Thanks again for your comments.

        • Ken,

          I am not exactly sure by what you mean by “going the other way”. However, If someone walks down the street with the intent of being an attractive target, say a prostitute wearing lingerie, I don’t think this particular statute can touch them. They may be culpable of something else.

          As for infants doing strange things in the tub, that just happened here yesterday, but I was not nearby with the camera.

          In addition to the two elements the authorities are sticking to presently, underage and images that are framed without regard to the overall appearance of the subject (body parts), there seems to be a third factor of external but legal items used to establish intent. This seems to manifest as having pornography in their car at the time of the arrest, or having a large trove of “suspect” images with them.

          Personally, I am not concerned about falling into any of those categories, but i do feel chilled. I don’t know if I can walk down the beach in Galveston and safely shoot adults in swimwear even if every single shot is a beauty or glamor image, albeit without consent. If someone decides to make a fuss, too much is left up to the responding officer. I don’t want to be another Vogel.

          -Ron

          • What I meant was that if the images can acquire legal ‘toxicity’ from the intent of the photographer, can the image also acquire toxicity from the intent of the viewer, and then taint the photographer?

            If, say, a web publisher (or flickr user) posts a pic, and someone links to it, or re-posts it with some ‘questionable text’ or on a ‘questionable site’, can the photo and the photographer be tainted by the ‘unauthorized’ reuse?

            Also, what happened to the well adjudicated term of ‘reasonable expectation of privacy’? People in public places don’t have such an expectation, or so the courts have declared.

            I have a student who told me he was going to Venice Beach, a place known for people sometimes ‘showing off’ this weekend. Should I have warned him (I know, it’s not Texas…) to beware of photographing people without a written release?

  8. Ken,

    Regarding your question about a photograph becoming toxic as a result of its subsequent use, I believe its possible, but only because the way others react to the image would be used by the prosecutor to establish what the photographer’s intent was in the first place. That is another reason why this statute is so dangerous.

    As for “reasonable expectation of privacy” it really only applies to dressing room and toilet areas. Invasion of privacy is mentioned in that part of the statute, but its probably redundant. Everywhere else in Texas, all that is needed are the improper thoughts plus a lack of consent to be photographed or have the image transmitted (uploaded).

    There is also a third part of the statute dealing with distributing images produced by others, provided the actor knows what the nature and content of the image is. In other words, you can get busted without taking a picture.

    -Ron

    • Ron,

      Not to beat the point, but with the vagueness of the statute, and how it has been applied…if someone uses a photographer’s image in an ‘improper’ manner, and the image is traced back to the source, the ‘use’ might be deemed as proof of ‘intent to arouse or gratify’.

      On “reasonable expectation of privacy”, there have been cases (in other jurisdictions) where this has been applied in a very loose manner.

      I have since found other cases and related issues that I’m looking into, likely for another post.

      Thanks for all your responses.

  9. Being a native born Texan I am qualified to testify to the fact that Texas is a very backward thinking state. This statue has been used and charges preferred in my hometown and other local communities. My personal knowledge of the offenses is only from news accounts and they sound pretty much like if someone complains to the authorities the cops file charges. One incident was at a small town swimming pool and the perp supposedly took pics of young girls. The other cases were school related. The law in Texas as to what is inappropriate is pretty much in the mind of the person being photographed. You would have to live here to understand how people see evil in everything. It like the joke about the old lady that called police to complain a man was indecently exposing himself. The cops come to her house and she shows him the man shaving in his bathroom next door. The cops say all they see is his chest and head. The lady says to the cops “Stand on this stool and you will see what I am talking about.”

    • Hah!

      W,
      amusing comment. thanks.

      I bet it gets crowded somtimes
      up there on that stool!

    • The swimming pool incident that W mentioned was in in the Victoria area. There was nothing in the press reports that would indicate that there was anything odd about the pictures. The police said they were “not typical tourist pictures” and “not wide area shots of the park”. The only other factor mentioned is the defendant had an 8×10 print of a local underage girl in his car. No information as to whether the pictures followed the usual pattern of being close ups of the groin or buttocks.

      He was released on $30,000 bail. That is very high because he had close ties to the area. He was arrested a few days later for taking pictures of teen girls playing tennis somewhere else. He was not able to make bail immediately. The only other information available is that he had been seen frequently photographing underage girls at tennis courts. I don’t know how the case was disposed of.

      Again, it appears to be a thought crime as what should pass for sports photography is now a felony, based on what the defendant was thinking at the time. There is no invasion of privacy, another feature of the Texas statute. Generally the commentary is this law makes creepy into criminal.

      • “The police said they were “not typical tourist pictures” and “not wide area shots of the park”.”

        Yikes.
        I like to think that at least some of my travel-related pix are not ‘not typical tourist pictures’ or else I’m wasting my time!

        “this law makes creepy into criminal”
        We do have a need to define the line carefully in order to protect people. The fact that governmental agencies can take endless images of these same people (in parks, etc.), as well as corporations in public place like malls, makes it important to protect individual photographers also.

        • “We do have a need to define the line carefully in order to protect people”

          Protect people from what? If somebody takes a picture of a person in public with the intent of later using it in private in a sexual or other manner not condoned by the established religious or other sensibilities of those in the community does it somehow defile the soul of the person photographed? Where does the photographer’s intent harm the person photographed. If the intent is translated into some sort of PUBLIC action which involves the subject of the photograph in a defamatory or harmful manner (perhaps by having their picture used by a prosecutor as an example of the deviant behavior of the photographer!!!) then I can see a cause for legal action, but not until then.

          The problem with many of the comments I have seen here is that they buy into the basic premise of the law – that the mere taking of a photograph of a person in public may, by and of itself, have harmful consequences. That is BS unless you also buy into the “Defilement of the Soul” argument. Oh yeah, is using a Victoria’s Secret catalog for sexual purpose illegal in Texas? If so then 95% of the adolescent males and probably 15% of the adolescent females in Texas should be in jail….if they aren’t already – Texas being Texas.

          • Hi george,

            “Protect people from what?”
            Actually, I was thinking there of the photographers primarily, and the subjects secondarily.

            Agreed that the ‘public’ use crosses the line. I’m not in favor of penalizing ‘thought crimes’ of individuals, though.

  10. These are the kinds of articles that I expect real photographers to write regarding the Texas Improper Photography law

    […] […]

  11. the lake travis kid that they convicted is a close friend of mine the whole line of sex education being lacking was never said by him, they actually brought that up in court against the school. also his pictures weren’t all that provocative, they where fully clothed full body shots and yet the girls at the school acted as if he where the wost type of scum, what teenage boy HASN’T had a fantasy about some hot girl at their school. its complete and udder BS that the law even exists.

    • Hi Steve,
      I hope that everyone involved has been able to gain at least something out a bad situation.

      I think that many times laws are intended, by some people, to be helpful, yet the laws are written so that they can be potentially punitive in other situations.

  12. my son is dealing with this now and it is from a pic took 2 years ago in high school and its just crazy…..be careful who u take pics of today….whether they are clothed or not…..like facebook too many freaks and not enough circuses today…..

    • As an active photographer, this is often in the back of my mind.

      Since I travel a bit, I’ll say that such attitudes are specific to our culture; people in other areas of the world don’t necessarily have such vile ideas of photography.

  13. Just ran across this thread. Hope it’s still active. I live in a planned community in Texas with a pool. I also run the Neighborhood Watch. The person who does our newsletter was told by the police he could not take pics of people, adults with kids, at the pool for publication in the newsletter. This is crazy. We have other problems at the pool and the police say to install video cameras!!!!! Talk about being confused! Still pics are bad but recorded video is OK?
    I asked the Chief of Police once about a law regarding alcohol at the pool. He said it was an arrestable offense. I asked the same question the the Lieutenant at the same police dept. and he said no law is being broken.
    So when you call a cop in Texas, you are gambling on what you get for a response. I call the slot machines with a badge……

  14. There was a local case that came up today in an East Texas city. A guy was taking photographs of fully clothed women outside of a public gym, someone complained, and now he is in trouble. The pictures, according to the news story, was not specific in the body parts being shot–they were full body shots. However, his “mistake” was in admitting they were for his personal gratification. I take pictures all the time but this law truly makes it a scary situation when one is out photographing on the street. In today’s society, with the cell phone cameras, the compact cameras, and the socialising of people on Facebook, Twitter, etc, I think that this law is really too broad and left up to the interpretation of the police and courts. It does give one something to think about when out shooting pictures.

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