Filmmakers, still photographers, journalists, authors and other artists or recorders of words, sounds and images who use human beings as subjects for their work have long understood that there are some legal privacy and other limitations on what they do. Unless their photo is taken in a public place, the subjects have legal rights. In almost every situation, they have moral rights. True, these moral rights occasionally can be trumped by "news value" or "artistic value" claims - but almost always the communicator need to obtain permission before using or identifying the subject. In the past, an informal "okay" or merely identifying oneself as a reporter would be sufficient. Is that still true today?

Recently, in other fields - including social sciences that provide much of the foundation for the study of mass media effects - there have been a great deal of ferment over obligations owed to subjects. Limitations imposed by law, institutional review boards, peer pressure, and fear of being sued have burgeoned in the past half-century. This is particularly true in fields such as medicine, biology and psychology, which deal specifically with the human mind and body. Communications researchers using social science procedures largely have adapted to the appropriate human subjects restrictions.

The underlying question asked by this paper is: Should the rigorous safeguards now being imposed on the scientific use of human subjects also apply to artistic uses?

Background

Scandals and abuses of the 1950's (and the atrocities of Nazi experimentation on humans in the 1930's and 1940's) prompted institutional and governmental (and often legal) guidelines now required in scientific practices involving "human guinea pigs." (See the National Institutes of Health Guide, vol. 24, no. 6 (1995) for background.) Stanley Milgram's famous experiments at Yale (1961-2) further demonstrated the potential not only for scientists, but also for their assistants and even their subjects or volunteers themselves, to inflict pain or penalty to innocents if experiments are unregulated.

However, the protection of clinical subjects within the social and natural (including medical) sciences derives from a different history than protection of human beings rendered by artists. The question of whether an experimental subject realizes he might be hurt when testing a new medicine is very different than asking whether a person in a crowded marketplace can be painted without giving permission to an artist. Theoretically, both are the "subject" of another, but what they are "subjected" to - the potential consequences, if you prefer - if anything at all, may be drastically different.

Today, like painters of centuries past, film-makers, videographers, photographers, audio artists, and webmasters engage other human beings within an artisti rather than scientific process. Although the overlap between these two (artistic and scientific) paradigms of human protection exists - privacy and reputation can be injured as surely as can the body and mind. The arts and sciences traditions are typically different in the striking way enumerated below, as the literature surrounding their paradigmatic discussion confirms. (Note: See the bibliography on this subject startgin on page 22 in this issue of Media Ethics.)

Specific Differences

Identification: In the sciences "subjects" are frequently unidentified as individuals. Rather they are quantified as grouped numerical data. Typically, however, artists depicting living human beings reveal faces andor voices publicly, so that they are viewed by others who are often in audiences. Hence much of the artistic literature considers whether those rendered will be put into a "false light," or "misrepresented" or "defamed." Thus discussion about consent in the arts has often focused upon the right of the depicted to avoid damage to reputation of their race, gender, sexual preference or nationality. Such protection has little meaning in the clinical sciences when subject are anonymous - although there is still discussion over the presentation of result that differ by these demographic characteristics.

Privacy: Due to the impact of media surveillance and documentary intrusiveness, artistic protection of "subjects" has often focused upon their rights of privacy, especially as originally outlined by Warren and Brandeis in their seminal 1890 Harvard Law Review article, distinguishing false light images from those of appropriation, embarrassment, an intrusion. Since human scientific subjects often cannot be identified, primary concerns have centered on their physical and mental abuse.

Freedom and Expression: Artistic creation has been concerned with the rights of the artist as well as with the protection of the depicted. Three types of traditions - First Amendment protection, poetic license, and observational research liberties - have combined to provide a large shield behind which the creator may locate her camera or microphone. (Anderson and Benson, 1988) Typically the scientist is more restricted by the structures of scientific method and pat practice and thus not an advocate of "poetic license."

Fairness and Balance: Because the depicted have more recently also had their wors and opinions recorded and edited, considerable discussion has been devoted to whether given renderings are "fair" andor "balanced." Moreover, as in Henderson (96), those photographed and recorded need to be informed of concealment (of cameras and microphones) an editing which might render their expression in an unfair or demeaning manner. Human subjects in clinical settings are typically more concerned about the effects and conditions of testing that about the decontextualization of their views.

Hierarchy of Loyalties: A scientist may claim his highest loyalty is to the truth, to the scientific community, or even to humanity when seeking to treat a disease or social malaise. But the artist may claim other loyalties such as to personal vision, artistic integrity, or even to an audience and their "right to know." Scientific method seeks "objectivity" and "neutrality" while several artistic forms such as satire, autobiography, parody, fictive narrative, and almost all genres of music are intrinsically subjective. By virtue of these differing loyalties and contexts, "subjects" within science and art may inherit two dissimilar environments and orientations.

Complexity: In a scientific experiment, survey, or test, a particular subject's name or notoriety may be irrelevant. However, such individual distinctions may matter significantly within artistic practice. For example, while photographers are welcome to and expected at public parades, the appearance of paparazzi constantly surrounding (and hiding from onlooker view) one celebrity within the same parade may be another matter entirely. Similarly, a documentary filmmaker may bend over backwards to gain permission to use the likeness of "common" people in a film and yet deliberately not seek the permission of a depicted dictator who could seek to censor or halt distribution of the same film. The issue of permission may present contradictions and complexities to the artist.

Consent: While both traditions favor informed consent for primary subjects, such consent can work against the grain of some artistic genres. If, as discussed by Heisenberg, the very act of observation can alter the observed, so too can informing the depicted that she will not only be observed, so too can informing the depicted that she will not only be observed but recorded for posterity. Since differing people shy away or "ham it up" when cameras and microphones appear, informing them that they will be recorded may damage the naturalness of their behavior (Becker, xvi). The Nature of consent may present unique issues and exceptions within the arts.

Legal Concerns: Although scientists and artists may have overlapping legal concerns such as copyright and plagiarism, the primary legal issues arists must understand when depicting human being include libel, obscenity, and misappropriation. Such issues are cut of a different cloth than the primary legal concerns within academic research - fraud and scientific misconduct. Human subjects engaged by scientists would usually require the service of lawyers for different reasons than human being depicted by artists.

Conclusions

For the above and many other reasons, it is misleading and unprofitable to group all naive participants in artistic and scientific processes as "human subjects." Scientists are rightly concerned with the "subjectivization" of their voluntary participants because seeing a person as a "subject" may pave a path toward greater dehumanization and insensitive treatment.

But artists have needed to be more concerned with "objectivization," not "subjectivization," which is to say that the greater danger in art is that a depicted human will be objectified or turned into an "object" such a s a sex object, stereotype, "object d'art," or object of ridicule.

Hence while both artist and scientist wish to maximize the respect each should show his non-professional volunteers (or paid models or help), one cannot use a "one-siz-fits-all" model nor consent form to protect the rights of all concerned.

In the landmark text Image Ethics (1988) Gross, Katz, and Ruby assembled essays by twenty experts with an annotated bibliography of more than 100 pages to outline and document the unique ethical issues involved in photo-recording human beings as both sill and moving images.

Such a vast literature and academic discussion is highly distinctive, albeit sometimes next-of-kin, to the debates and norms within the natural and social sciences about human subjects. (See for example "Statement of Ethics: Standards and Proedures," 1976, the American Anthropological Association; and "Coe of Ethics," 1984, the American Sociological Association.)

While both traditions, scientific and artistic, seek to sensitize professionals to the dignity and rights of human beings, each has a vastly different set of primary ethical issues and requires a different protocol.

Within "informed consent," both protocols must emphasize two of the three primary criteria for traditional "informed consent." These are that the depicted or subjected human being will:

a.) Be offered conditions free of coercion and deception,

b.) Have the individual competency (and legal age) to provide consent, and

c.) Have full knowledge of the procedures and anticipated effects of the process to which they consent

It is this third criterion that is not necessarily desirable within all art forms which call for spontaneity, creative license, and unknown outcome.

Moreover, consent within the arts must take into account a much broader range of ethical issues than most scientific studies, which (as listed above) include defamation, images of diversity, free expression, privacy, fairness, false light, libel demeaning stereotypes, and many more. Although some of these issues may also arise within a restricted subset of scientific experiments, consent within the sciences must be far more concerned with providing the human subject with full disclosure about the potential side effects and damage of the sometime untested products and procedures of each experiment.

Ethicists, legal experts, and veteran professionals, whether scientists or artists, must be involved in the development of discrete protocols for the protection of human volunteers and accidentally included bystanders within each tradition. It is also important to note that within each paradigm there are unique disciplines (and genres) and subdisciplines such as psychiatry, oncology, and biochemistry (sciences) and documentary film, audio installations, and field television production (arts) which may demand unique attention and specific consent protocols. Very few (including enthnography, or anthropological film) need to be aware of both domains.

Accordingly, academic administrators and legal professionals should abandon misguided efforts to apply the same standards and regulations to both the arts and the sciences. Such rules probably will harm all creative individuals in their efforts to understand and illustrate the human condition. In short, the same impulse to protect human subjects and their rights must join the quest to protect scientific, artistic , and academic professionals and their rights. Each individual professional and her or his discipline, like each subject or being, ought to be understood and respected within his or her own identity, context, and envelope of dignity.

The above article was published in Media Ethics, Spring 2006 (17:2),pp. 10,21-22.