Photographer faces law suit

Started Aug 23, 2013 | Discussions thread
CliffB
Veteran MemberPosts: 3,982
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Re: Music analogy
In reply to larrytusaz, Sep 15, 2013

This is my main point.

The way I see it (I love music analogies), if John Mellencamp can do a very "folksy" album like "No Better Than This" and record it in mono with a 1950s era tape machine using 1 microphone, and say about doing it that way I want to do it this way, and if I can't do what I want at this point, I'm not going to do it. If it's not fun, I'm not going to do it. I'm through digging a ditch" and to also say "I have only one interest: to have fun while we’re doing this and maybe have something that somebody might discover,"then I think photographers also being people who are creating artistic creating works of expression should be able to do the very same thing. If that means not doing the "bed & breakfast/Instagram" style of photos, or not photographing a gay wedding because you don't agree with such unions, or not photographing obese women in lingerie, so be it.

If the law says otherwise, then the law is wrong and, frankly, screw the law (and change it while you're at it).

You  are applying an argument that follows the old adage of "comparing apples and oranges."

Photographers can, in fact, "...do the very same thing."  A photographer can legally do exactly what John Mellencamp does.  Mellencamp creates a song, records it, and then tries to sell that song, its recordings and its performances to the public.  In a like manner, a photographer can create any photo that he or she wants to, and then try to sell it to the public. Neither Mellencamp nor such photographer be required to create any particular music or photograph.

I am not a professional photographer, but I have sold numerous photos to magazines, book publishers, and to the public through galleries and photo shows.  As such, I can create whatever makes me happy and then attempt to find a market for those photos.  Neither I, nor Mellecamp, is offering a service to the general public.  If I, or Mellencamp, do not want to create any particular photo or song, we do not have to.  We are entirely ruled by our personal wants and desires.

This is not analogous to someone offering a service to the general public.  Whether you are a photographer, plumber, auto mechanic, doctor, etc., etc., etc., if you are offering those services to the general public, you bring certain laws into play.  In offering those services to the general public, the law, in the US, restricts one from refusing those services to certain groups.  One of those groups would be due to someone's sexual orientation.  If one is offering wedding photography services to the general public, he or she cannot refuse to serve a potential customer simply because he customer is gay.  In the eyes of a court, the  questioned posed is likely to be framed in the question of whether, in viewing such a photography business, a gay wedding is different from a heterosexual wedding. I expect that the photographer would have to argue that there is a fundamental difference.  I would also be surprised if such a court did not find that a wedding is a wedding is a wedding.  From a photographic point of view, there is no difference; and, as such, it is unlikely that a wedding photographer, offering such service to the general public, would be on solid legal ground by refusing to photograph a gay wedding, an interracial wedding, an interreligious wedding, weddings of particular racial groups, etc.

I might also point out that, even though Mellencamp and I can create whatever artistic creations that we desire, when we sell that art we cannot refuse to sell it to gays, blacks, whites, Christians, Moslems, Jews, whites, Catholics, Methodists, Baptists, etc.  When I have a public  photo show, or Mellencamp performs a public concert, the gallery or auditorium cannot refuse entry to gays, etc.

However, it still remains that there is a great difference between creating a product for later sale to the public, and offering the sale of services to the public.  In the former, I can create whatever I want, but may be restricted in whom I can refuse to sell that product.  If the latter, then what I am selling is the service, not the product, and I will be restricted in whom I can refuse to sell that service.

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