Man arrested for taking photos of cheerleaders pt. II

Michael Fryd said:

REBlue said:

Michael Fryd said:

...

Click to expand...

In summarizing the Knox case, you leave out some critical language:

The tapes contained numerous vignettes of teenage and preteen females, between the ages of ten and seventeen, striking provocative poses for the camera. The children were obviously being directed by someone off-camera. *** In some sequences, the child subjects were dancing or gyrating in a fashion not natural for their age.

...

Click to expand...

Yes. I left a lot out. We could easily fill this thread with a discussion of how many of the Knox elements are necessary. Or whether or not the person who choreographed the cheerleaders counts as someone off camera directing them. We've already seen some discussion as to whether cheerleading routines are age appropriate.

This is likely not the best venue for a full discussion of 18 U.S.C. § 2251 subtleties.

My key points are:

• Nudity is not required in order for something to be pornography.
• It is possible for a photographer in the stands to take photos of cheerleaders that would be illegal under the US federal anti child pornography laws.

Click to expand...

Michael Fryd said:

MaxCh said:

Michael Fryd said:

...

Click to expand...

I spend a lot of time with family/friends at the beach during summer and I do tremendous amount of photography there . The first thing I do when we get there is to approach a life guard, introduce myself, my family, show my photo gear, explain that I ONLY shoot people in my group, and explain why I shoot with my gear instead of an iPhone. We sometimes have a group of 10-20 people during such events so I always make sure to tell the life guard that everybody I am taking pictures of is in my group.

I also make sure my wife or a female friend stands next to me when I take pictures on the beach. and I stop shooting once there are possibilities of other people getting into my shots (or it looks this way)

Click to expand...

Have you tried it both with and without the introductions?

My experience has been that when I am out with family and friends no one bothers me.

My experience at events where little children are present is that other parents come up to me and ask if they can get photos from me of their kids (or ask for advice on how to use their camera).

Click to expand...

Michael Fryd said:

In my case, I make no attempt to hide or minimize my camera gear. I have a big camera bag, tripod or monopod, and some large lenses. My experience is that when I am obvious about it, it doesn't look suspicious.

When I did a photo shoot in a nudist resort I walked around with a large camera bag, a full frame DSLR, and a long white lens. No one gave me grief as it was obvious I wasn't trying to hide anything. I suspect someone walking around while trying to hide a small point & shoot, would get kicked out.

Click to expand...

MaxCh said:

...
People seem really paranoid about this. Do you know that in PA you have to pass police clearance if you want to be a school photographer for a yearbook?

Click to expand...

Michael Fryd said:

MaxCh said:

...

People seem really paranoid about this. Do you know that in PA you have to pass police clearance if you want to be a school photographer for a yearbook?

Click to expand...

Is it just photographers that need clearance?

In Miami, all public school volunteers and employees need to pass a police background check. That includes photographers.

Click to expand...

Michael Fryd said:

A 16 year kid old volunteering to work at our local science museum needs to be fingerprinted for a background check.

Click to expand...

Kung Fu said:

MaxCh said:

REBlue said:

https://www.dpreview.com/forums/post/59411168

I came into the discussion too late to get in a comment on this topic due to it having reached the maximum number of comments, so I have opted to go with an addendum. I hope that does not violate any rules.

Like many others in the thread, I can appreciate the concerns of the cheerleaders and their families about the situation. On the other hand, I am bothered by the implications of the arrest. Many in this topic talked about child pornography in this situation, and this particularly bothered me. If his actions are viewed as child pornography, then isn't it the organizers of the competition that are producing child pornography? The man arrested did not dress/undress the cheerleaders, did not direct their actions or in any way control what the cheerleaders did or how they did it. One poster suggested that the photos may violate the federal laws on pornography as a "visual depiction of sexually explicit conduct involving a minor". I would have to question whether a cheerleading routine, albeit many are highly sexualized, could be described as "sexually explicit conduct." Even so, would that not be the problem of the coach who choreographed the routine and chose the uniforms? Presumably whatever body parts he concentrated on were clothed to the extent that the organizers and the cheerleaders' parents deemed appropriate to the situation. How has he produced child pornography? He recorded an event, he did not create or control it.

This also is not like the situations where people plant cameras in locker rooms or dressing rooms, or position cameras under women's clothing in public places. From all appearances, the man had a legal right to be where he was at and to take photos; at least the article does not suggest anything to the contrary on either point. There could scarcely be an expectation of privacy in performing in a venue open to the public. Even those cases that have dealt with things like the subway creepers who try to shoot upskirt photos have tied their rulings to the concept that the victims had an expectation of privacy that their undergarments and genital areas would remain unexposed. Can that really be said for most cheerleading outfits and activities?

Without seeing the actual photographs, it is hard to say whether what the man did was improper, but still not necessarily illegal. In our troubled and somewhat paranoid world today, the enjoyment of our mutual hobby/profession of photography is being beset on all sides by more restrictions. In the post 9/11 and Oklahoma City world, we can no longer photograph government buildings and other "sensitive" locations. Some countries are essentially banning street photography, and I'm not talking about the Bruce Gildin kind of street photography (a whole other issue). So I agree that this is indeed a slippery slope we are venturing onto. While I may not necessarily like what this guy did, I think that him being convicted of some offense, especially a sex related offense would be a very troubling precedent.

Click to expand...

Click to expand...

Click to expand...

REBlue said:

If his actions are viewed as child pornography, then isn't it the organizers of the competition that are producing child pornography? The man arrested did not dress/undress the cheerleaders, did not direct their actions or in any way control what the cheerleaders did or how they did it.

Click to expand...

MaxCh said:

People seem really paranoid about this. Do you know that in PA you have to pass police clearance if you want to be a school photographer for a yearbook?

Click to expand...

REBlue said:

Michael Fryd said:

...

Yes. I left a lot out. We could easily fill this thread with a discussion of how many of the Knox elements are necessary. Or whether or not the person who choreographed the cheerleaders counts as someone off camera directing them. We've already seen some discussion as to whether cheerleading routines are age appropriate.

This is likely not the best venue for a full discussion of 18 U.S.C. § 2251 subtleties.

My key points are:

• Nudity is not required in order for something to be pornography.
• It is possible for a photographer in the stands to take photos of cheerleaders that would be illegal under the US federal anti child pornography laws.

Click to expand...

Obviously not every word of the Knox opinion are necessary, but the highlighted ones in my response are few but significant. I totally agree on your first key point. I think your second is a bit of an overreach.

Click to expand...

MaxCh said:

...
The school principle recently lectured the entire assembly of parents on how to take pics of their kids when other kids are around. He seemed really concerned about parents posting pics of other kids on social media.

Click to expand...

Mark S Abeln said:

In the West, modesty usually falls on men, who are expected not to look at women lasciviously, no matter how they dress, particularly if the women consider the men undesirable. This of course extends to photography.

Click to expand...

Michael Fryd said:

REBlue said:

Michael Fryd said:

...

Yes. I left a lot out. We could easily fill this thread with a discussion of how many of the Knox elements are necessary. Or whether or not the person who choreographed the cheerleaders counts as someone off camera directing them. We've already seen some discussion as to whether cheerleading routines are age appropriate.

This is likely not the best venue for a full discussion of 18 U.S.C. § 2251 subtleties.

My key points are:

• Nudity is not required in order for something to be pornography.
• It is possible for a photographer in the stands to take photos of cheerleaders that would be illegal under the US federal anti child pornography laws.

Click to expand...

Obviously not every word of the Knox opinion are necessary, but the highlighted ones in my response are few but significant. I totally agree on your first key point. I think your second is a bit of an overreach.

Click to expand...

I could be wrong, but the Seiverville, Tennessee local police seem to agree with me.

If you read the article that got this started, the man was charged with sexual exploitation of a minor for taking photos that were focused in on inappropriate areas of the girls' bodies at a cheerleading competition.

Click to expand...

tko said:

>This case involved videos of teenage and preteen females, between the ages of ten and seventeen, wearing bikini bathing suits, leotards, underwear, or other abbreviated attire. Although no child was nude, the photographer would zoom in on the children's pubic and genital area and display a close-up view. The child subjects were dancing or gyrating in a fashion "not natural for their age." The videos were intended to be sold to pedophiles.

The problem is, this sounds like a child beauty pageant, a cheer leading routine, or a high school party. You wanna guess at what the youngest thong twerker is on YouTube? I don't know either, but I'm pretty sure it's well below 21. Haven't heard of any YouTube arrests. The youngest Victoria Secret Model is 19. Don't even ask about Abercrombie and Fitch and their hyper child sexuality.

The point is, what was sexually suggestive in 1986 and 1994 has become the norm today for kids as the emulate the latest media stars. What would have been shocking for fully grown adults in the 1950's is now acceptable, even boring and old-fashioned, for teens. I would think it's pretty hard to prosecute when everyone, from parents to giant corporations, are encouraging minors to engage in similar acts and showing them across national TV and on giant billboards.

Bottom line. "Not natural for their age" isn't anymore.

Click to expand...

REBlue said:

REBlue said:

...

Click to expand...

The fact that police officers think that something comes within the scope of a criminal statute is not relevant. The police conduct the investigation and make the arrest. The prosecuting authority then makes an initial determination whether he/she believes the alleged actions come within the statute. But it is the courts that have the ultimate authority to make that determination. It's not like the police have not been mistaken in their judgment about what actually is illegal. There are any number of cases out there where police have wrongfully believed that they could seize a photographer's camera or order them to stop taking photos.

I would note that it is not altogether clear that the cheerleader photography is the basis of the arrest anyway. There seems to be some question about his possession of an undescribed image of a 14 year old girl on his Ipad that does not seem to be related to the cheerleading event.

Click to expand...

Michael Fryd said:

Michael Fryd said:

Keep in mind that in a trial the emotions and feelings of the jury can play a role. The accused will need to convince the jury that he had no bad intentions when he was taking closeups of inappropriate body parts. That could be a tough sell.

Click to expand...

None of us have seen the images, but the local police believed they crossed the line.

Click to expand...

REBlue said:

Michael Fryd said:

REBlue said:

Keep in mind that in a trial the emotions and feelings of the jury can play a role. The accused will need to convince the jury that he had no bad intentions when he was taking closeups of inappropriate body parts. That could be a tough sell.

Click to expand...

None of us have seen the images, but the local police believed they crossed the line.

Click to expand...

Keep in mind that in the U.S. the prosecution has the burden to prove beyond a reasonable doubt that the accused violated the law. The accused does not have to prove that he did not violate a law. Moreover, it may never get to a jury. I think it reasonable that his attorney will first raise the issue of whether the conduct even comes within the statute, which is a legal question for the court, not a factual question for the jury.

--
http://www.flickr.com/photos/reblue/sets/

Click to expand...

Kung Fu said:

Michael Fryd said:

Kung Fu said:

Michael Fryd said:

REBlue said:

...If his actions are viewed as child pornography, then isn't it the organizers of the competition that are producing child pornography? ...

Click to expand...

In the USA, an image can be pornographic, even if the activity was not.

For instance, there is nothing fundamentally pornographic about a 5 year old playing in the surf.

There is nothing fundamentally pornographic about a photo of that 5 year old playing in the surf.

On the other hand, use a telephoto lens to shoot a closeup of the child's crotch, and the image may very well violate the child porn laws (this is true whether or not the child was wearing a bathing suit).

Click to expand...

You keep repeating this, but it sounds like total b.s. Do you have a link, or can you quote a statute or ruling?

It defies all logic.

Click to expand...

Which part are you questioning?

If you want to learn about US laws on child pornography, there are a lot of good on-line references. You may wish to start with Citizen's Guide to U.S. Federal Law on Child Pornography. Here you will find "Notably, the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity."

Another good reference is "Statutory and Guideline Provisions in Child Pornography Cases". Child pornography is defined as ... lascivious exhibition of the genitals or pubic area. “Lascivious exhibition” is not defined by statute, but “virtually all” of the federal courts to have addressed the issue have applied a well-established six-prong legal standard in deciding whether a particular image of a minor qualifies as “lascivious.”

The six-prong standard was first announced in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.), cert denied, 484 U.S. 856 (1987). The “Dost factors” are: “(1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” Dost, 636 F. Supp. at 832.

.

A good case that illustrates the issues is United States v. Knox, 32 F.3d 733 (3d Cir. 1994).

This case involved videos of teenage and preteen females, between the ages of ten and seventeen, wearing bikini bathing suits, leotards, underwear, or other abbreviated attire. Although no child was nude, the photographer would zoom in on the children's pubic and genital area and display a close-up view. The child subjects were dancing or gyrating in a fashion "not natural for their age." The videos were intended to be sold to pedophiles.

This was the case that set the precedent that "crotch shots" of minors can be child porn, even if the children are clothed. A closeup photograph of a cheerleader's crotch could meet the criteria.

.

Obviously, this is a complicated legal issue, and I am giving only an overview here.

A lot of people are under the mistaken belief that nudity and pornography are the same thing. This is not the case. Images with nudity are not necessarily pornographic, and pornographic images don't necessarily involve nudity.

It is quite possible that images being taken of cheerleaders by an audience member might fall into the child porn category.

Note that I am not saying that all cheerleader outfits and routines would meet the guidelines, but that certainly some outfits and routines do. Also note that I am not commenting on "right" or "wrong". I am merely passing along the state of federal law in the USA.

Click to expand...

Utterly absurd, and if true it just shows that our "laws" are often as bizarre and capricious as something out of Kafka, or Alice In Wonderland (Lewis Carroll being someone else accused without evidence of being a pervert).

Click to expand...

Michael Fryd said:

MaxCh said:

Michael Fryd said:

...

Click to expand...

I spend a lot of time with family/friends at the beach during summer and I do tremendous amount of photography there . The first thing I do when we get there is to approach a life guard, introduce myself, my family, show my photo gear, explain that I ONLY shoot people in my group, and explain why I shoot with my gear instead of an iPhone. We sometimes have a group of 10-20 people during such events so I always make sure to tell the life guard that everybody I am taking pictures of is in my group.

I also make sure my wife or a female friend stands next to me when I take pictures on the beach. and I stop shooting once there are possibilities of other people getting into my shots (or it looks this way)

Click to expand...

Have you tried it both with and without the introductions?

My experience has been that when I am out with family and friends no one bothers me.

My experience at events where little children are present is that other parents come up to me and ask if they can get photos from me of their kids (or ask for advice on how to use their camera).

In my case, I make no attempt to hide or minimize my camera gear. I have a big camera bag, tripod or monopod, and some large lenses. My experience is that when I am obvious about it, it doesn't look suspicious.

When I did a photo shoot in a nudist resort I walked around with a large camera bag, a full frame DSLR, and a long white lens. No one gave me grief as it was obvious I wasn't trying to hide anything. I suspect someone walking around while trying to hide a small point & shoot, would get kicked out.

Click to expand...

Mark Scott Abeln said:

REBlue said:

If his actions are viewed as child pornography, then isn't it the organizers of the competition that are producing child pornography? The man arrested did not dress/undress the cheerleaders, did not direct their actions or in any way control what the cheerleaders did or how they did it.

Click to expand...

Modesty seems to be a universal notion, but different cultures treat social modesty differently. In some cultures, the burden of modesty falls mainly on women, usually in terms of rules of dress. In the West, modesty usually falls on men, who are expected not to look at women lasciviously, no matter how they dress, particularly if the women consider the men undesirable. This of course extends to photography.

No one seems to follow the old rules of chivalry anymore, they having been discarded with everything else in recent decades, but this event shows that there still is need for people acting like ladies and gentlemen.

Click to expand...