Where Can Artists Share Materials Others May Find Objectionable?
NSFW (Not Suitable For Work), has become a term to warn viewers that certain following images may not be appropriate for mixed company or appropriate to view at work - in other words, adult suggestive content is on its way! One of the first things people imagine when they see a ‘NSFW’ warning is nudity, typically female nudity. I’ve discussed my opinions regarding the gender gap in provocative images in another post so I won’t get into that here. This post is geared more towards what qualifies for ‘not suitable for work' images and where an artist can safely post images that may be NSFW.
Deciding which images might conflict with which social media site most often comes down to deciding whether or not the image may be too objectionable for the general viewing audience. For the most part, the majority of my work is safe on pretty much any social media platform but I do have some images that I’m concerned could get ‘reported’ on certain internet sites. Trying to figure out which images are appropriate on which site isn’t as straight forward as one may think. So, I did what any attorney would do and researched the issue. Please keep in mind the following results are accurate as of the date of this post. One thing I have learned is that the terms can change frequently and often.
Facebook - Probably one of the most widely used social media platforms, Facebook has a community standard when it comes to objectionable images – specifically nudity. You cannot display genitals or images “focusing in on fully exposed buttocks”, whatever that means. Additionally, female nipples are expressly forbidden. There are some female nipple exceptions for actively breastfeeding women or images showing post-mastectomy scarring. Prohibiting pictures of genitalia I can understand. I can even understand a well articulated argument against fully exposed buttocks. But I must admit, I’m a little mystified at the female nipple exclusion. Keep in mind, it’s not a nipple issue, it’s a female nipple issue. There are plenty of images on Facebook of topless men. Are female nipples that drastically different from male nipples? The nipple issue on Facebook has become so interesting that some photographers will Photoshop in a male nipple on top of a naked female image to comply with the community standards – only to be reported anyway. Ha! You can actually download stock images of male nipples specifically for this purpose. This being said, I have seen photos on Facebook of female breasts (nipple included) from time to time. Most of the time however, the nipples will simply be blurred or covered with other images. Facebook allows its members to self-monitor one another and report images viewers find objectionable. Facebook takes over the evaluation from there.
The nipple issue isn’t just a Facebook phenomenon. Most states do not have a prohibition on females being topless but several cities and communities have developed specific ordinances against public exposure of the female nipple. Fort Collins, Colorado is addressing whether or not it is gender discrimination to allow a man to walk around topless and not allow a woman to do the same. New York has allowed females to walk in public topless for awhile but females that do so legally, are still repeatedly arrested. Several organizations and projects such as Free the Nipple and GoTopless have been attempting to address the issue for a while now.
500px - 500px is what I consider a higher-end photography sharing site that has a lot of really excellent photographer members. They too, have a broad standard clause prohibiting obscene or pornographic images. Although I am unable to find any language on the site that defines these terms, it’s not difficult to imagine a person considering a topless woman, or even a topless man, as obscene. However, since this site is geared more towards artistic expression when compared to Facebook, they do seem to allow a broader spectrum of possible ‘objectionable’ material. In fact, they have a search category specifically for ‘nude’ images and you are given the option to flag material you upload as ‘adult content’. There doesn’t appear to be a ban on nipples specifically or on fully exposed buttocks.
Tumblr - Even Tumblr has rules regarding what you can post, believe it or not. If you have a blog that is NSFW, you must flag the blog accordingly so individuals can avoid it if they so choose. Tumblr boasts about allowing you to upload just about anything, again with a few exceptions. They do have a brief paragraph requesting that you not upload explicitly sexual videos – which I think is minimally enforced. However, I could find nothing on images specifically. I would note that the ‘upload anything’ philosophy of Tumblr does lend itself to more selfies and random amateur photographers. This tends to lead to images that appear to be more pornographic in nature as compared to 500px that focuses more on professional looking images in general. However, if it’s strictly nudity and workplace appropriateness, both 500px and Tumblr could be NSFW depending on your search queries.
Instagram – Probably the most cut and dry. “You may not post…nude, partially nude,…pornographic or sexually suggestive photos or other content via the Service.” Again however, I am unsure how strictly this standard is enforced. On a side note, I have attempted to create an Instagram account for my work but I find the nature of the site less conducive to the type of work I do. Although the site is evolving, a lot of my work isn’t from a cell phone camera ready for instant sharing – actually none of it is. And yes, I realize images on Instagram do not have to come from a cell phone but the nature of the site is more about instant uploads which favors the random and instant photos mostly captured on cell phones.
Twitter – Although generally thought of as a brief text sharing site and application, images can be shared as well. The only reference to images I could find in the terms of service indicates that you cannot use pornographic images in your profile image, header image, or background image. I must admit, I am not proficient with Twitter at all. I understand its use but again, feel it isn’t the best format to exhibit my work.
Flickr – Flickr appears to have one of the more understandable terms and service clauses of the bunch. It allows you to set a safety level for images you upload. There are 3 different levels from which to pick. Level 1 is ‘Safe’ and geared towards images suitable for global and public audiences. Level 2 is ‘Moderate’ and is for images that you may not be sure are appropriate but just want to play it safe. Level 3 is ‘Restricted’ and is for images you wouldn’t show your kids or mom. They even further explain that “bare breasts and bottoms are ‘moderate’. Full frontal nudity is ‘restricted". Again, one of the more understandable community standards guidelines of those listed. The levels do not differentiate between male and female images as well. The only restriction on nudity is that it is forbidden in your buddy icon or cover photo.
YouTube – Their ‘Community Guidelines” are very broad and vague simply stating that YouTube is not for pornographic or sexually explicit content. They do, however, have an option to flag your content as ‘adult’ when uploading it. I have seen several videos of behind-the-scenes boudoir photography sessions that basically show both female and male models completely naked – nipples and all. I have also seen videos where the nipple has been blocked out as well. Again, who defines,and how is ‘pornographic’ and/or ‘sexually explicit’ content defined?
These are just a few of the more popular social media platforms used to share artistic works. There are obviously other platforms and if you wish to use them to display materials that might be NSFW, I highly suggest you look into their terms of service or community standards to see what is, and what is not, acceptable.
Now don’t get me wrong. My portfolio is far from overflowing with nudity, male or female, but I do have shoots on occasion that are definitely intended for more mature audiences. Yes, I obviously have my own personal website and I can post whatever I want there, but social media platforms like Facebook and YouTube drive a fair amount of my website traffic. Although I enjoy photography immensely, I also like to share my work, even the work that may be objectionable. To that end, I have to carefully pick and choose what images I put on different social media sites or modify the images to comply with that site’s standards.
We all have our personal definitions of what we individually consider pornographic, obscene, or otherwise NSFW material. That being said, it’s almost impossible to create any artistic work that probably won’t offend someone. In fact, if it doesn’t offend someone, it probably isn’t art. There are several images I consider very artful that someone else may consider obscene or pornographic. Finding the appropriate site for certain select images can be a challenge. Again, I can post what I like on my website but I am at the mercy of social media sites if I want to use them. Regardless, don’t let others define your work. If you find a naked woman, nipples and all, a pleasing piece of artwork you would like to create, get out of your comfort zone, get your camera out, and make it happen. Just be cautious where you post it!
It’s not often that my passion (photography) and my paycheck (being a lawyer) cross paths. But over the last year or so, I have seen examples of the two intersecting in very interesting ways. Just recently, Colorado introduced HB -1290. In short, this piece of proposed legislation would make officers and police departments civilly liable for damage done to a photographer’s equipment should the police intentionally interfere with a person’s right to record their actions. This appears to hold true for both video and still photography. In addition to any compensation for damaged equipment, the photographer/videographer could also receive a civil penalty award of up to $15,000.00 and attorney’s fees and costs. The officer may also be charged with ‘tampering with physical evidence’. It appears clear that Colorado is trying to send a message to law enforcement that they will be held accountable for their actions and that the public can, and should be, a prime witness.
Colorado has had some recent issues with police and recorded police conduct. To be fair, it is not all police departments and obviously not all police officers. Nonetheless, there has been enough media attention thrown on the issue to apparently make several individuals propose this pending legislation. I also believe this is a preemptive action from the backlash of public opinion on recent national cases involving the deaths of minorities at the hands of the police (including a new incident making national attention at the very moment this blog was being written!) I do not think Colorado’s House Bill is protecting just the professional media outlet photographer/videographer. I think the bill is aimed at protecting anyone with the ability to record an officer’s action. With today’s complicated smart phones with built in cameras, this means just about everyone could be protected from recording the police.
Not all states appear to be moving in the same direction. Apparently Texas has a similar bill moving in the opposite direction. House Bill 2918 would make it a misdemeanor offense for any private citizen to record police within 25 feet of the officer. In addition, any citizen that is armed could not record police activity within 100 feet of the officer. Note that the language only addresses ‘private’ citizens. Radio or television organizations with an FCC license would have the right to record police apparently without the distance limitations. Citizen safety appears to be the reasoning behind the bill. It will be interesting to see how both of these bills fair in the near future and how many other states follow either Colorado or Texas. Having a close friend who is an officer, I’m curious to get his personal opinion on the issue.
As a photographer, I think it is important to get in the correct position to capture that amazing image. But as a lawyer, don’t think just because you have a camera in your hands that some kind of creative force gives you license to ‘get the shot’. The law I think most photographers break, is trespassing (mostly on train tracks). Keep in mind that because a location is open to the public doesn’t mean that it’s public property. Parks and recreation areas are prime examples. Yes, your taxes may have paid for the facility, and yes, you are free to go there during the day, but most parks and facilities have hours of operation. Visiting them outside of those hours is trespassing, plain and simple. Even the federal government recently attempted to require photographers to purchase a permit to take pictures on federal wild lands. This included both the professional photographer and the random visitor with a cell phone. Fines could be up to $1,000.00. I’m not sure the old saying ‘it’s better to ask for forgiveness than permission” will work with most judges.
I will keep an eye on Colorado and Texas out of personal interest both as a photographer and a criminal defense lawyer and will hopefully provide future updates.
Keep the interesting parts of life in focus.