The Implicit Contract

A work of art is the unique result of a unique temperament. Its beauty comes from the fact that the author is what he is. It has nothing to do with the fact that other people want what they want. Indeed, the moment that an artist takes notice of what other people want, and tries to supply the demand, he ceases to be an artist. ~Oscar Wilde

There are two magazines that I contribute to regularly—LensWork, and On Landscape. They are different publications in many ways (one is a printed magazine, the other electronic; one focuses on landscape photography, the other inclusive of all genres; etc.). Both publications are created and curated with care and passion by their publishers, and both are subscription-based, rather than being funded by advertising, making them a pleasure to read without distraction. More to the point of this post, these publications have another thing in common, which is this: both foster serious and intelligent discussion and commentary about photography beyond just technical topics.

I was pleased that my recent article in On Landscape, titled, “Morality and Realism in Photography,” elicited some excellent and well-thought-out responses and led to an offline discussion with the publisher, Tim Parkin, that resulted in a follow-up article written by Tim, titled, “Realism and Honesty in Photography.” In his article, Tim proposes that there is an implicit contract between photographers and viewers, which he describes as “the ‘fair’ expectation that what you are being presented with meets certain criteria even though there is no explicit contract.”

I believe that such an implicit contract in photography exists (or should exist) only in some contexts, and that there is no such contract that applies unequivocally to all photographs. To the point of this article: I believe that there is no such implicit contract when it comes to photographs intended as art (indeed, to anything intended as art).

To suggest that artists, in any medium, should tailor their work to viewer expectation is to suggest that art should become stagnant. This is because all advances in art and artistic expression originated with artists who defied conventions, broke with traditions, and did things in new ways. In that sense, novel exceptions are to the evolution of art what mutations are to the evolution of life—not always successful, but when they are, leading to new forms.

It can be said that we have an implicit contract with news media to be truthful in their reporting, although we know that some of them, by design, offer biased and sometimes even false views. We may believe that we have an implicit contract with physicians to treat everyone equally, but such a view does not reconcile with some surveys, such as one that found physicians less likely to prescribe certain drugs to family members than to random patients for the same condition. We want to believe that we have an implicit contract with law enforcement officers and with the judicial system to treat the everyone fairly and equally, but studies show significant biases (racial, demographic, etc.) in the likelihood of being arrested for certain crimes, and in the severity of court-imposed penalties. To wit, trusting an implicit contract without further critical assessment may lead to error and disappointment.

When it comes to photography, I agree completely that viewers have a legitimate expectation—an implicit contract with the photographer—that what they are shown is a truthful representation (to the extent that this is possible). And certainly, when such an expectation is not met, viewers have every right to be upset and to feel like they have been deceived.

However, when it comes to art, there is no such contract—no legitimate expectation of truthful representation. Indeed, if all one could do with photography is to represent appearances as anyone else would see them, photography would be a decidedly-unsuitable medium for art. Art, deriving from the same origin as “artificial,” by any formal definition, is a product of human skill and imagination, and is not strictly defined by any other criteria. Skill and imagination are what philosophers call “necessary and sufficient conditions” for something to be considered art. More explicitly, truthfulness, however you choose to define it, is not one of these conditions.

Where there is an implicit contract that is not honored, the injured party has a legitimate reason to feel deceived. But to suppose there is an implicit contract where there is no plausible reason to assume so, is to be gullible or at least uninformed. For a variety of reasons, such misinformation is more pervasive in photography (when used to make artistic creations) than in other media. As such, I consider it my duty as a photographer who considers himself an artist, to inform that such a contract should not be assumed for any photograph presented as art. And I urge my fellow photographic artists to similarly step up. Misinformation among potential audience for photographic art is not in our favor and may lead to preventable disappointment.

As I wrote in my On Landscape article, “Readers know to apply different modes of appreciation to works of journalism and to works of fiction. Moviegoers can easily tell the difference between a documentary film and a fictional one. There is no reason why these same people can’t be encouraged to make the same distinctions when studying photographs.” Not only will such educated viewers be less prone to disappointment, but they also will expand the range of rewards they will get from photography. The fact that a fictional novel is not as truthful as an academic textbook does not make one unequivocally “better” than the other, but it does mean that the two should be read with different expectations and reward readers in different ways. Photography has a broad range of expression—both factual and expressive. To allow people to persist in their belief that photographers are only “allowed” to use a small part of that range is not only detrimental to artistic expression, but it also is untenable: photographs that do not represent “real” appearances not only exist but are common, and there is nothing and no one who can change that. We should stop pretending that this is not the case, or that this is a bad thing.

With that said, I would like to explain the extent of what Ansel Adams called “departure from reality” in my own work, and without judgment of other people’s work who may choose differently. I consider my photographs as visual journal entries. Personal journals describe real events, but they do so in a subjective way: they not only express what happened, but how it affected the writer. In a personal journal, the event and the feelings it inspired in the writer are both true, even if another person may have had a different impression of the same event.

I don’t photograph to make photographs, nor to commemorate events just because their appearance is attractive. I photograph to express moods inspired by encounters with things and places that are personally meaningful to me. As such, I have no reason to depart too far from the sources of my inspiration, however what I choose to show you and how I choose to portray it are entirely subjective and not likely to match what you would have seen or felt in the same circumstances.

Allow me to also address the ignorant stigma of “manipulation.” All art, being by definition a product of human skill, is manipulation. A view occurring naturally or randomly, presented without application of human creativity, by definition is not art. What may not be obvious from this definition is that a photographer’s primary tool for manipulation is visual composition: the deliberate arrangement of visual elements within the frame by such choices as perspective, what lens to use, what lighting or weather conditions to match with a given subject or scene, and others. All such decisions and techniques are innate to the photographic process and require no means other than a camera and lens; and all can be used to express things that are truthful and things that are not.

Processing the captured photograph is a secondary means for manipulating photographs. In my work, my purpose in applying processing tools is not solely aesthetic appeal. Rather, my purpose is to arrive at the (truthful) emotional effect I experienced and wish for my images to impart, using the (real) properties—colors, textures, lines, etc.—of the things in my photographs. Note that this does not mean that I portray these things as-is. I will emphasize and enhance those aspects of the captured photograph, so they best fit my expressive goal, but I—by choice—will not to create images from arrangements that are not possible in a single photograph. This is because what I wish to express ensues directly from real things.

These are choices I make to match my reasons and purpose in practicing photography, and not because I feel bound by any implicit contract. Others may, and do, make different choices or have different purposes in photography. So long as such photographs are presented as art, no implicit contract can be assumed, because to do so is gullible and will almost always lead a viewer to incorrect assumptions.

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10 thoughts on “The Implicit Contract

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  1. A good online discussion about an interesting topic! I’m just off out up the mountain opposite our house so can’t reply at length but I thought I’d try to explain a couple of the points I probably didn’t get across well. The idea of the implicit contract isn’t something that a photographer has to abide by or that they can choose to get rid of. It exists through the natural assumptions (rightly or wrongly) of the viewer. This means that even art photographers will get affected by it, depending on the person and context of the viewing situation.

    For example, I’m sure there are more than a couple of people who looked at the Rheine by Gursky and thought, “bloody hell, he’s just wiped out a load of factories and the skyline!!”, i.e. even though he’s an art photographer and doesn’t care what people think (possibly) there will always be elements of his audience who aren’t ‘art literate’ enough to ignore their expectations (or not have them in the first place).

    Likewise, when a photographer/artist publishes a photograph with a location name in the title, parts of the audience will have a reasonable expectation that the photograph is ‘of’ that location and resembles it in some way.

    The article isn’t suggesting that all photographers should abide by elements of the audience that feel like this, nor that we shouldn’t try and inform our audience that these expectations may be erroneous and negatively affecting their enjoyment of art. However, these expectations on the part of our audience are there to some extent, no matter who the artist.

    For instance, if it turned out your pictures were actually taken in Egypt instead of the American High Plateau or if you pasted European Oak trees into a winter scene in the Badlands then at least some of your audience will be surprised “to say the least!”.

    Hopefully, however, a photographer/artist can build an audience that understands their working practices and appreciates their work without judgement, just as you have with your audience.

    Another aspect of my point is that we shouldn’t look down on photographers who choose to try to remain ‘honest’ with the views that lie before them. It’s a valid goal, but not the only way of working.

    I look forward to more discussion! 🙂

    (good job I was time limited!)

    1. Thanks, Tim! I agree that such long-held biases exist, and that they are not easy to root out, which is why we need to keep pointing out when such biases are irrational. I was surprised when people commended me on having the courage(?) to write that piece. That would imply that part of the problem are those who hold these views covertly and are afraid to speak out.

      I agree completely that no genre of photography has any claim to look down on any other, and I hope I did not come across as suggesting that any goal is in any way inferior or invalid. In this case, it seems to me that the message should be directed in the opposite direction, too. I I think that it’s more common for those who claim (their idea of) “honesty” to look down (sometimes, to demonize) those who have different ideas about what honesty means in the context of art, and not the other way around.

      1. Ah! Humans as irrational creatures. Who’d have thought 😉

        I think people do have an innate worry about post-processing of any kind, which is completely irrational. However, many people also don’t worry about what the amount of post-processing they do may mean. i.e. to have an internal, self-consistent set of views about why you’re post-processing and what it means to you and the viewer. (with the caveat that this self-consistent set of views modifies and changes as the artist matures and works change etc).

        You’re probably right that there are more ‘fundamentalist’ straight out of camera fanatics than their more reticent post-processing evangelists but the real problem is having real reason for either approach.

        It might help if you could articulate some of your reasons for your own approach, i.e. what level of photo manipulation would you be unhappy to do and why and if there is still a desire to ‘represent’ in any way the views and encounters you have with nature? Why don’t you just clone in a few extra trees or change the colour of the flowers and leaves in your images? I think you have your own internal framework for both encounter, capture and post processing and whilst ‘anything goes’, you won’t do certain things. Thoughts?

      2. Don’t get me started on irrational beliefs 🙂

        I touched on my reasons when I said that I don’t want to depart too far from my inspiration. More specifically, I don’t want to lose the essence of the things in my images that best express my mood at the time I decided to make a photograph (even if sometimes I’m the only one who knows what they are).

        Since I wish to express my real moods and thoughts, as experienced in, and influenced by, a real place, I won’t compromise those realities (as I perceive them subjectively). I don’t think that this conviction can be characterized in terms of level of manipulation, nor that it should be a concern for anyone but me. If looking at my final product, I feel that “yes, that’s what it felt like,” that’s all I need to feel that my work is honest and truthful.

        Viewer expectations, sensibilities, etc., don’t factor into my decisions. This is because a) I can’t know what they are, and b) I don’t target my work to any particular audience. My audience is the people who find value in my work and sensibilities, so you can say that the best way for me to “target” my audience is to just pursue my work according to my own sensibilities.

  2. I believe that such an implicit contract in photography exists (or should exist) only in some contexts, and that there is no such contract that applies unequivocally to all photographs.


    1. But the whole idea of the implicit contract is beheld by the viewer and so you can’t decide that the view won’t have one. i.e. Guy Tal doesn’t suggest his images are anything but what they are but most of his audience will have this ideal of an implicit contract in their minds that his works are created in the mid-west, they’re mostly the result of a single capture (not a montage of many different moments and places), they bear a resemblance to a ‘real place’, etc. Like I’ve said elsewhere, if Guy posted a picture that contained a pyramid from Egypt pasted in from an old Nat Geo mag or if he told you that some of his images were actually taken in Mongolia, you would no doubt be a little ‘surprised’ and that is because you still have certain expectations from his work. This is what I mean by the ‘implicit contract’. It’s not a binding legal document that the artist signs up for but a set of assumptions and expectations (right or wrong) that the viewer has when encountering a work.

      1. I agree with that, Tim, but let’s not lose sight of what a contract is. According to the Merriam-Webster dictionary, a contract is, “a binding agreement between two or more persons or parties.” If only one party has an expectation that the other is either unaware of or does not feel bound by (to whatever degree), then it is not a contract, implicit or otherwise. At best it’s an unwarranted expectation or misconception, at worst it’s a delusion.

      2. You need to be careful with dictionary definitions. Once a word is combined with another word, the possible meanings explode. “Implied contract” doesn’t need two people to agree to it, the circumstances of their association becomes the contract.

        In business terms, a person can choose not to enter into a contract with another person but their behaviour can bind them never the less. This is the type of implied contract to which I refer.

        “An implied contract is an unwritten agreement between two or more parties. There are two forms of implied contract – implied-in-fact and implied-in-law contracts. An implied-in-fact contract is formed by non-verbal conduct or actions between two parties. Even though no words were agreed upon, the actions of all parties involved is sufficient to initiate a contract.

        Read more: Implied Contract | Investopedia
        Follow us: Investopedia on Facebook”

      3. This definition also suggests that “conduct or action” is needed by more than one party in order for an implied contract to exist. I doubt that many artists, by conduct or action, can be presumed to agree to realism in their work. In fact, some outwardly express the opposite. The link you provided states that an implied contract “is a legal substitute for a contract.” I’m sure that’s not the case in this situation, either.

  3. My photography is for me! I do it for me. I try to capture images that please me and speak to me. I am pleased if viewers react positively to my work and I’m pleased if they don’t. They see, interpret and react the way they want. I have no contract with them and they have none with me!

    Frankly, but not as a criticism, this discussion of an implicit contract gives me a headache!!

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