Photo Stroll through Prague and Controversies – a legal and ethical history of photography: Part 1

is an exhibition organized by Musée de l’Elysée, Lausanne at the Rudolfinium Gallery in Prague with curators Daniel Girardin (senior curator of the Musée de l’Elysée), Christian Pirker (attorney, Member of the Geneva Bar) and Associate curator Petr Nedoma (director of Galerie Rudolfinum).

” Since its invention in 1839, photography has provoked numerous controversies and sensational trials. The photographic image has been at the centre of important ethical debates and legal questions throughout the 19th and 20th centuries.

“As a symbol of free expression and the rights of individuals, but also of power and money, it has frequently come into conflict with authority and has had to face censorship and manipulation. It has provoked impassioned debates in the worlds of art, science, politics, journalism, fashion and advertising that have often ended in court. Most major photographers have been drawn into legal proceedings or controversies that have had important repercussions on their careers.”

“The Musée de l’Elysée has brought together a wide range of photographs from the beginnings of photography to the present day that have been the focus of controversy or legal proceedings. Some of these are very well-known, others are less so. Taken together, these pictures give a better understanding of how a society or culture looks at itself, and thereby enable us to consider contemporary debates with a critical eye.” Press release.

All iPhone photos © Miranda Gavin.

There is a warning too:
“The exhibited photographs may be shocking. The organizer recommends that sensitive persons, minors and those who do not wish to be confronted with shocking images consider whether they wish to visit the exhibition.


  • Garry Gross (1937—2010), Untitled, 1975, C-print, vintage, Musée de l’Élysée, Lausanne

In July 1978, at the age of thirteen, Brooke Shields made front page news in Photo Magazine. The
young American film prodigy was promoting the film Pretty Baby directed by Louis Malle. In the magazine, a ten-year old Brooke is shown wearing makeup, her glistening body posed naked in a bathtub. The picture comes from a series taken by Garry Gross, an advertising photographer from New York who was regularly employed by Brooke’s mother to photograph her daughter, then a model with the Ford agency. At the time, Gross was working on a project for publication entitled The Woman in the Child, in which he wanted to reveal the femininity of prepubescent girls by comparing them to adult women.

Brooke Shields therefore posed for him both as a normal young girl and in the nude, her body heavily made up and oiled. She received a fee of $450 from Playboy Press, Gross’s partner in the project. Her mother signed a contract giving Gross full rights to exploit the images of her daughter. The series was first published in Little Women, and then in Sugar and Spice, a Playboy Press publication. Large prints were also exhibited by Charles Jourdan on 5th Avenue in New York.

In 1981, however, Brooke Shields wanted to prevent further use of these pictures and tried unsuccessfully to buy back the negatives. A legal battle then began between Shields and Gross with Gross being sued for a million dollars. Brooke Shields claimed that her mother had agreed to give up her rights for one publication only and that the photographs caused her embarrassment. In addition, they had been published, and would probably be published again, in revues of dubious morality. Her lawyers immediately obtained a provisional measure forbidding the use of the pictures until the end of the trial. The case was won by Gross with the court considering the contract signed by Brooke Shields’ mother to be valid and binding on her daughter. Brooke Shields appealed and once again obtained a provisional ban on the use of the photographs.

Finally, after a procedure lasting for two years, the appeal court confirmed that Brooke could not invoke her right to annul the contract and that she was legally bound by her mother’s signature. The court once again reaffirmed Gross’s right to freely exploit the use of the pictures other than in a pornographic context. After the failure of their arguments concerning the validity of the contract, Brooke’s lawyers decided on a new strategy, attacking Gross for violation of Brooke Shields’ privacy.

The actress claimed that the publication of the images caused her distress and embarrassment. Brooke Shields’ acting career, however, weakened the credibility of this argument since it had clearly been built by projecting an explicitly sexual image of herself. Whatever the case, the court considered that “these photographs are not sexually suggestive, provocative or pornographic, nor do they imply sexual promiscuity. They are pictures of a prepubescent girl posing innocently in her bath”. The court rejected all Brooke Shields’ claims and decided in Gross’s favour. The trial however, had ruined him financially and had tarnished his reputation. In addition, a change in attitudes towards the “politically correct” had sullied the photographs.

The story, nevertheless, had an unexpected development. In 1992, a contemporary artist called Richard Prince approached Gross about buying the rights to use and reproduce the image of Brooke Shields. In his artistic work, Prince appropriates pictures by rephotographing them, recontextualizing them and giving them a title. The picture of Brooke Shields, for example, is entitled Spiritual America. Gross was willing to retrocede his rights to Prince for a series of ten prints. Prince became a star of the contemporary art scene and his picture was sold at Christies in 1999 for $151,000.

  • Frank Fournier (born 1948), Omayra Sánchez, Armero, Colombia, 1985, C-print, later, Musée de l’Élysée, Lausanne

This picture was taken by Frank Fournier in Columbia on Saturday 16 November 1985, a few days after the eruption of the Nevado Del Ruiz volcano. The landslide provoked by the eruption had already killed 24,000 people as the local authorities had taken no preventive measures despite the warnings of vulcanologists.

In this natural catastrophe, the young Omayra Sánchez was caught in the town of Armero in debris transported by the mud. For two full days and three nights, rescue workers tried to free her with the whole world following her ordeal on TV or in the papers. The crane and the hydraulic pump that were needed to clear the debris didn’t arrive in time. Omarya’s hips had been injured by metal bars and her legs were trapped. She was exhausted and despite her impressive faith and calm, she died of a heart attack on 16 November.

For Frank Fournier, a member of the agency Contact Press Images and the author of documentaries published worldwide, the feeling of powerlessness was overwhelming. He was unable to save the victims who urgently needed medical aid and professional care. He realised that all he could do was record the suffering of the young girl in the hope that this would help mobilise international aid.

Although he had considerable success in the media, winning the World Press Photo prize in 1986 for this portrait of Omarya, Frank Fournier was understandably gnawed by doubt. The agonising death of a young girl, surrounded by journalists and photographers, was followed live on television all over the world. Fournier’s reactions show how deeply a photographer can be forced to question his work and to doubt its legitimacy. This case highlights the terrible dilemma of either showing reality as it is and running the risk of shocking the public, or of refusing to record such tragedies.

Fournier found himself at the centre of a major controversy: in such a situation, wouldn’t it have been better to offer help rather than to take pictures? Is it possible to show the suffering of others without violating their right to have their privacy respected? For some people, broadcasting the drama of Omarya’s death was obscene.

The case illustrates the vicious commercial circle in which news programmes are trapped nowadays, their obligation not to be outdone by the competition and a coverage of events oscillating between the extremes of voyeurism and sensationalism. Confronted with these issues, many photographers insist on their ethical probity and their sense of personal responsibility. For them it is of the utmost importance that the public be informed.

  • Oliviero Toscani (born 1942), Kissing-Nun, 1992, Dye transfer print, vintage, Musée de l’Élysée, Lausanne

Oliviero Toscani is a well-known fashion photographer whose work has appeared in magazines such as Elle, Vogue, Harper’s Bazaar and Stern. However, it is his work for Benetton from 1982 to 2000 that made him world famous. Over a period of eighteen years, he created a very strong visual identity for the firm which helped establish its reputation. By the year 2000, Benetton had become one of the five most famous brand names in the world with stores in more than one hundred and twenty countries.

Toscani began the advertising campaign with a series of variations on the slogan The United Colors of Benetton, bringing together strongly contrasting opposites in the same image. In this way he created a direct, provocative message that conveyed a whole range of positive values such as the acceptance of differences, multiculturalism, the fight for equality and peace. He then began to move gradually away form the original intention of the advertisements, which was the presentation of Benetton clothes, with pictures of a black woman breastfeeding a white baby, of a white wolf and a black sheep or of a tiny black hand held in a large white one.

The themes became increasingly provocative, focusing on news and current affaires, and began to generate intense controversy that in some cases ended in court. In 2000, the Death Row campaign, using portraits of 26 American prisoners who had been condemned to death, created an outcry in the public but also amongst distributors of the clothes and the families of the prisoners. Benetton decided the time had come to end its collaboration with Toscani.

“Kissing-nun” deals with the theme of religion, contrasting a profane, sensual kiss with the sacred vows pronounced by men and women who enter religious orders. By challenging the principle of religious celibacy, the picture encourages viewers to refuse traditional constraints and thereby directly attacks the basic values of Catholicism. Inevitably, part of the public felt deeply offended and in Italy, bowing to pressure from the Pope and the Vatican, the use of the image was finally prohibited.

In France, the Office for the Surveillance of Advertising Practice demanded the withdrawal of the posters after receiving numerous complaints lodged by religious associations. The problem reoccurred, as it inevitably does whenever a picture challenges religious beliefs, with the poster for the film Amen (2002), also designed by Toscani, which shows a Christian cross transformed into a Nazi swastika. The demand for the prohibition of the poster was nevertheless refused by French law courts on the grounds of previous jurisprudence dealing with the issue.

Toscani succeeded in freeing advertising from its traditional codes rooted in consumerism by using of the power of images to add a social dimension to an activity that had previously been purely commercial. Infringing taboos with the use of forceful pictures, he provoked the intense debates which are the sign of a successful policy of communication in contemporary society.


One response to “Photo Stroll through Prague and Controversies – a legal and ethical history of photography: Part 1

  1. Pingback: Photo Stroll through Prague and Controversies – a legal and ethical history of photography: Part 1 | Photography Now |

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