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The Politics of Looking: Post-Mortem Privacy & Ethics in Contemporary Photography

April 26, 2024

By Divya Srinivasan

The photographic documentation of the deceased body has occurred for decades. While photographers’ intentions vary, controversy surrounds this practice, resulting in discourse about the regulation and accessibility of corpses and their use in photographic production. Whether it be for the sake of documentation or aesthetics, it is evident that the historical use of the dead body has served a wide variety of purposes within the realm of photography. Memorial photography, forensic investigations, and the documentation of war and violence are all examples of the historic photographic representation of the dead.

However, some artists also intentionally manipulate the dead body to varying degrees, causing the result to be categorized as an art object. This practice is arguably distinct from the above forms of “death photography,” in that the alteration of the corpse to create a more aesthetic outcome represents the use of the body as an art object, and a grotesque one at that. Furthermore, practices such as “lying in state,” in which the bodies of important political officials are placed in state buildings and typically photographed, have normalized the open exhibition and photography of corpses, leading to further discussion about the voyeurism of dead bodies and the susceptibility of corpses to the gaze of others.

This short investigation seeks to outline the concept of post-mortem privacy, identifying the notion that privacy has the potential to extend beyond life. This exploration aims to contextualize specific examples of death photography in the overall discussion of regulation, finding nuances between photographic practices, and their implications for the potential creation of policy and legislation. Finally, this article evaluates the United States Constitution’s efficacy in addressing privacy, suggesting approaches for heightening protection of death photography.

Contextualizing Contemporary Photography

Non-Manipulated Photographs of the Dead

There are many photographers who have photographed the dead body, resulting in the creation of an art object. One process of creating an art object out of the deceased body is the photographic representation of corpses that have not been manipulated prior to their documentation. However, in the art market, these pieces are still considered to be art. One example is the work of photographer Sally Mann, who is known for photographing the human body. She is best known for her images of her children, and her name can be found in scholarly discourse surrounding the ethics of child photography and much more.^{^[1]} An article published in The Guardian states that Mann’s work “provok[es] strong reactions,” with her photographs engaging themes considered polarizing and sensitive.^{^[2]} In her series Body Farm (2000-2001), she created images depicting decaying bodies at the University of Tennessee Forensic Study Research Facility.^{^[3]} Colloquially known as the “Body Farm,” the facility consists of two acres of outdoor space and contains approximately forty corpses that have been arranged to represent various crime scenes.^{^[4]} The purpose of the Body Farm is to serve as a pedagogical opportunity for scholars in the field of forensic science and other related disciplines. As a result, Sally Mann’s photographs of these corpses allude to their scholarly use, allowing professionals from a wide range of geographic locations to view the bodies in the University of Tennessee’s Body Farm.

In an interview with NPR, Mann stated that the main purpose of the Body Farm was to study corpses under specific conditions, so that researchers could theoretically gauge the impact of variables such as temperature and time on the decomposing body in order to compare it to other corpses existing under the same conditions.^{^[5]} Mann’s project of photographing these bodies that existed only on the University of Tennessee’s property and could not necessarily be transported elsewhere allowed for a globalization of scientific and educational materials. The context in which these images were captured shows Mann’s actions as partly for the promotion of science and study, arguably making the voyeurism of these corpses more ethical than in other circumstances that will be discussed below. Nevertheless, the images were still considered works of art, as they entered the primary art market and resulted in Mann’s financial gain. In an article by Fawn Fitter for The New York Times, the author states that they were first exposed to Mann’s series in an art gallery, coming face-to-face with an image of the deceased, emphasizing such a designation.^{^[6]}

Mann’s series relies on the audience’s surveillance of the dead body. Historically, the act of viewing the body has been prevalent in many aesthetic productions. Traditional examples include works that employ the use of the male gaze, such as in the case of Manet’s Olympia, a work that intentionally relies on voyeurism to serve its purpose. Similarly, Mann’s photographs in Body Farm actively implicate the viewer in the process of viewing deceased individuals. A connection can be made between the traditional artistic motif of the reclining nude and Mann’s photograph Body Farm #18, an image of a corpse lying prone. Both ideas revolve around the vulnerability of the human body in various artistic representations, raising the question of whether the body can be vulnerable even beyond life.

According to the University of Tennessee Knoxville Forensic Anthropology Center, the bodies that are donated to the Body Farm are studied extensively, highlighting that the corpses are used for significant scientific advancement and are therefore serving a scholarly purpose after death. After the bodies decompose, the bones are transported and further studied, again reinforcing the scholarly nature of such a resource.^{^[7]} In Mann’s work Body Farm #8, the image could arguably be considered to have some sort of scientific and scholarly function. The photograph, one of a human skull, in combination with the fact that Mann has stated that “[the bodies] were a scientific experiment” and “[she] grew to see them that way,” is meant to provide scientists with information about the bone structure of individuals who have experienced various forms of trauma after death.^{^[8]} As a result, the observation and voyeurism associated with looking at the dead body, in this circumstance, is balanced by the scholarly outcome and therefore does not render the body as vulnerable to visual exploitation as other methods of portraying the deceased, especially those that rely on the hyper-aestheticization and formal design of the body.

Mann’s other works, including her exhibition titled What Remains, have been met with mixed public reactions. A reporter from the New York Times called the series “gross,” according to Mann.^{^[9]} Mann further states that she believes this is the result of the general public’s discomfort with death, especially its existence in aesthetic or photographic production.^{^[10]} This is a major point of focus in the identification of laws, policies, and codes of ethics that align with the topic of death in artistic output. The concept of presenting deceased individuals as art objects exists within an unconventional gap in privacy laws and ethical standards, especially when considering what should remain private versus public.

Manipulated Photographs of the Dead

A second method used by photographers is the intentional manipulation of the deceased human form. Again, the resulting image of the body becomes an art object, but to an arguably higher extent, due to the associated movement of the deceased. Andres Serrano has received plenty of press for his highly controversial photographs that touch on themes such as politics, religion, and more. Working within the bounds of unconventional artistic and photographic practices, Serrano aims to seek strong emotional responses from the viewers of his pieces. In Serrano’s series The Morgue (1992), he featured photographic images of dead bodies.

The corpses featured in Serrano’s The Morgue series are of unidentified individuals in an undisclosed morgue. In an interview with Serrano, he stated that he was allowed to photograph these unnamed corpses by a pathologist under the condition that their identities would not be exposed.^{^[11]} As a result of this condition, Serrano aimed to disguise these corpses, manipulating them to hide recognizable features that could potentially be identified in the images if left undisturbed. One work, titled Infectious Pneumonia (1992), features a deceased woman with a red cloth draped over her eyes, hiding potentially identifying aspects of her face. The sex of the individual is not obvious, further emphasizing the work’s ambiguity and proximity to the deliberate anonymity Serrano aimed to portray.^{^[12]} It is evident that Serrano made intentional choices to leave viewers questioning certain aspects of the corpse, reinforcing his goal of ensuring the anonymity of the photographed deceased.^{^[13]}

The inclusion of the red cloth intended to disguise the corpse introduces a major aspect of Serrano’s method: physical manipulation. While Serrano’s use of cloth was employed to protect the identity of the deceased body in the morgue, other tools place his technique in the category of art photography. Not only did Serrano manipulate the physical corpse, he also manipulated the space around it with the purpose of heightening the aesthetic nature of the resulting photographs. When looking at the series, each photograph features the corpses with a black background. This technique is described by Serrano as providing the photographs with “a uniformed look,” with the intention of “[alienating] the subject…and [putting] it into a studio context.”^{^[14]} Serrano’s admission that his method consisted of handling the deceased body more than would be necessary if presenting the corpse as a scientific object emphasizes his attempt to create aesthetic art objects through his photographic endeavor.

Not only did The Morgue series involve manipulation through photographic tools, the orchestrated nature of Serrano’s process also required physical manipulation. Serrano stated that he physically moved the bodies that he worked with at times.^{^[15]} In his photograph titled Rat Poison Suicide, the raised arms is evidence that Serrano moved the form. While there is speculation regarding Serrano’s manipulation of the bodies and whether it was purely for artistic purposes or the result of a “fear of litigation,” the process of moving the corpses and hiding their identities through the use of physical objects further shows that Serrano maneuvered the corpses.^{^[16]}

In Patricia D. Leighten’s discussion about manipulation in photography, she asserts that manipulated photographs indicate that the resulting product is the photographer’s “aesthetic stand,” or a representation of the photographer’s personal aesthetic, further connecting the practice of manipulation in photography to that of an art object.^{^[17]} Referring to the pictorialist approach to photography, or the excessive manipulation and handling of an image’s subject, Leighten argues certain actions, such as touch and manipulation, cause photographers to control the viewers’ experience, altering the truth behind images, and, as a result, cause the images to be considered “art.”^{^[18]}

Whereas Mann photographed corpses as she saw them, Serrano intentionally maneuvered the body, and sometimes the space around it as well, making his process one that can be more conventionally considered artistic as opposed to solely journalistic or for purposes of documentation. While the Body Farm series was, in part, used for pedagogical purposes and to globalize the information found at the University of Tennessee Knoxville’s Forensic Study Research Facility, Serrano’s The Morgue series turned the corpses he photographed solely into fine artistic production. This implicates the viewers of Serrano’s images in a higher degree of violation. As a result, Serrano engaged with deceased bodies in a more (arguably) invasive manner. Nevertheless, both artists promoted and presented their work for consumption as art objects, designating the processes of both Mann and Serrano as artists who profited from the representation—and in Serrano’s case, manipulation—of the deceased.

As is evident from this discussion, Serrano’s practice and methodology is polarizing. Richard Lacayo’s article for TIME distinguishes the methods between Serrano and Mann, stating that the manipulation of the body, as well as other intentional alterations of the physical space “answer to expectations that we bring to the pictures from art history.”^{^[19]} Further, Lacayo draws similarities between the perspective Serrano employed in his work to that of Italian painter Andrea Mantegna’s Lamentation Over the Dead Christ. Resemblances between the two works such as the aerial view of the body, highlight a varied methodology in terms of the physical construction of the works as a whole, consisting of the alteration of subject and space. These artistic decisions have nuanced implications for both the art market and the legal landscape as a result.

Post-Mortem Privacy and the United States Constitution

Post-mortem privacy refers to the notion that the right to privacy can extend to individuals past death. This concept is present in various sectors, such as forensic science and medicine. When considering the production and distribution of art objects (that is, objects that hold aesthetic value or have been created with the purpose of serving an aesthetic value), the discussion of post-mortem privacy extends to novel areas of application. Due to the discursive nature of the ethics behind post-mortem privacy, there is significant debate surrounding the production, dissemination, and consumption of death photography.

Samuel D. Warren and Louis D. Brandies, in their article The Right to Privacy for the Harvard Law Review, discuss the nature of privacy law, as well as its extension and application throughout the progression of time.^{^[20]} The authors consider the history of privacy as protected by United States law, claiming that there has been a historical need for the qualification of what is contemporarily protected by legislation; this is the result of the modern concept of the spiritual and natural understanding of ethics involved with the law. From this, it can be argued that there is a necessary inclusion of the rights of deceased individuals. The transcendence of the possession of rights can be considered a liberty extended to all persons, even beyond the grave.

Lawyer and writer Wilbur Larremore stated that Samuel D. Warren and Louis D. Brandeis mentioned the right to privacy as concerning deceased individuals first by “summariz[ing] the growth of legal protection with the broadening of the intellectual and spiritual wants of mankind.”^{^[21]} As Warren and Brandeis point out, privacy laws should reflect the needs of society, changing with time. The issue of deriving economic benefit from creating art objects out of deceased individuals exemplifies a need for stricter regulation and the continued investigation of such efforts.

The methods and processes behind the works of both Mann and Serrano bring up important discussions surrounding the right to privacy. However, because both photographers documented images of corpses, it is necessary to investigate whether this right to privacy remains after one’s death. This issue is further complicated by the contemporary art market and the implications of selling images of dead bodies, emphasizing the importance of continued scholarship in this and related fields.

While the United States Constitution outlines the right to privacy it is silent on whether deceased individuals qualify for the same protections. However, in Fred O. Smith Jr.’s analysis of the Constitution, he argues against the notion that only the living can benefit from the rights given to them in the Constitution. While he does state that “over the past four decades, American courts have generally concurred that the dead do not retain constitutional rights” that those that are living benefit from, he asserts in his discussion that “the right to bodily integrity is one that exists in life and persists in death.”^{^[22]} Smith continues to discuss implied rights in the Constitution that make certain acts against the body illegal despite the fact that these policies are not explicitly stated in the document. Smith furthers his argument by referencing the dignity that should be given to deceased individuals, emphasizing the impact that the Constitution has on marginalized groups and the necessity for the Constitution to protect these individuals.^{^[23]}

The current state of privacy rights should be reworked to provide greater protections to deceased individuals. The separation of ethicality and legality is a precarious but necessary aspect to consider, especially in the examination of the right to privacy regarding those who cannot speak for themselves.

Censorship & Art

Censorship as it applies to artistic production is a major point of contention and one that is highly relevant to the discussion at hand. The censorship of art can be seen as both inhibitive and protective, depending on the circumstances. In response to the analysis presented in this short investigation, further steps to mitigate any potential harm that arises from breaches of privacy by artists who depict the dead should be addressed. Histories of ethics have been considered in the relationship between art and censorship, resulting in the negotiation of such an association.

Given the works of Serrano and Mann are uniquely positioned as art objects, it is necessary to consider the impact of censorship (or a lack thereof) on the art market. Richard Shusterman has stated that there is longstanding polarization between art creation and art censorship, especially when considering the function of art from an ethical standpoint.^{^[24]} However, in reference to the law, this polarizing debate is heightened and emphasized in terms of scope. It serves to ask the question of whether or not one can still apply the argument that art has “didactic and cathartic value” when faced with the legal implications of representing the dead.^{^[25]} This investigation does not seek to answer the question of whether or not the works of Mann and Serrano exist within the boundaries of ethical or not, but rather aims to open up such a discussion.

There is a sort of natural censorship that occurs in the primary art market, as is put forth by the public taste and reception of art and art objects, including photography. Relating back to the mentions of public reactions and critical interpretations of both Mann’s and Serrano’s work, it is obvious that there are mixed reviews surrounding the application of ethics and morals to their creative output. It serves to suggest that the public and institutional response of artworks can impact the discourse and scholarship that aligns with them, further informing the notions of what is right and wrong in the creation and distribution of art objects.

A case study of such censorship can be referenced by the Culture Wars, an event that occurred in the United States in the late twentieth century. Consisting of “a fundamental split between orthodox and progressive views of morality,” especially in terms of “class, religious, racial, ethnic, political, and sexual lines,” divisions rooted in broader cultures became more emphasized.^{^[26]} Involving an earlier series by Serrano, as well as works by other photographers who were creating work that was considered highly unconventional at the time, the time of the Culture Wars included an attempt by the United States government and the agency, National Endowment for the Arts, to censor the distribution of art that was deemed inappropriate.^{^[27]} Based on the argument that there exists an obligation for governments to promote and support art and artists who create works that align with a specific culture of purity or decency is arguably a form of censorship, a statement that can be extended to the case of Serrano and Mann’s representations of the dead. In the article Art Censorship for the Royal Society of Arts, authors Fitzpatrick, Rosenthal, and Chapman state “there is no intrinsic relationship between aesthetics and morality.”^{^[28]} By touching on the highly restrictive nature of the connection between the law, censorship, and human nature, the authors further their argument by stating that there is a complex interplay between the need to censor and the ability to create and consume art freely.

Conclusion and Future Considerations

Overall, privacy as it applies to the photographic practice of depicting the dead is contested and discursive. Despite this, there are certain nuances in the consideration of presenting and depicting the body as an art object that could lead to a heightened level of regulation. There is room for foundational legal theories to improve, particularly as they apply to the production and distribution of death photography. The regulation of how corpses are depicted in art and photography, as well as the manner in which images of the dead circulate in the contemporary art market, must be expounded upon so that deceased individuals are treated in a just manner.

About the Author:

Divya Srinivasan is an Art History student at the University of Miami. Her interests primarily focus on the production, distribution, and consumption of visual culture through the lens of policy. She aims to work within the intersection of the legal field and the art industry, specifically in fine arts transactions and the museum management space.

References:

Mary Gordon. “Sexualizing Children: Thoughts on Sally Mann.” Salmagundi, no. 111 (1996): 144–45. http://www.jstor.org/stable/40535995. ↑
Blake Morrison and Sally Mann, Sally Mann: The Naked and the Dead, Tʜᴇ Gᴜᴀʀᴅɪᴀɴ (May 28, 2010), https://www.theguardian.com/artanddesign/2010/may/29/sally-mann-naked-dead. ↑
Jon Jefferson, Down on the Body Farm: A Bizarre Research Facility in Tennessee Boasts a Bumper Crop of Corpses—and Helps Convict Killers, 86 ABA Jᴏᴜʀɴᴀʟ 62, 63 (2000), http://www.jstor.org/stable/27841676. ↑
Id. at 63. ↑
Making Art Out of Bodies: Sally Mann Reflects on Life and Photography, WBUR (May 12, 2015), https://www.wbur.org/npr/405937803/making-art-out-of-bodies-sally-mann-reflects-on-life-and-photography. ↑
Fawn Fitter, My Afterlife on the Body Farm, Tʜᴇ Nᴇᴡ Yᴏʀᴋ Tɪᴍᴇs (Feb. 28, 2019), https://www.nytimes.com/2019/02/28/well/live/my-afterlife-on-the-body-farm.html. ↑
General Frequently Asked Questions (FAQs), Tʜᴇ Uɴɪᴠᴇʀsɪᴛʏ ᴏғ Tᴇɴɴᴇssᴇᴇ Kɴᴏxᴠɪʟʟᴇ, https://fac.utk.edu/general-frequently-asked-questions-faqs/ (accessed Dec. 13, 2022). ↑
Making Art Out of Bodies: Sally Mann Reflects on Life and Photography, WBUR (May 12, 2015), https://www.wbur.org/npr/405937803/making-art-out-of-bodies-sally-mann-reflects-on-life-and-photography. ↑
Blake Morrison, Sally Mann: The Naked and the Dead, Tʜᴇ Gᴜᴀʀᴅɪᴀɴ (May 28, 2010), https://www.theguardian.com/artanddesign/2010/may/29/sally-mann-naked-dead. ↑
Id. ↑
Anna Blume and Andres Serrano, Andres Serrano, 43 BOMB 36, 37 (1993), http://www.jstor.org/stable/40424591. ↑
Id. ↑
Id. ↑
Id. at 38. ↑
Id. ↑
Mary O’Neill, Speaking to the Dead: Images of the Dead in Contemporary Art,” 15 Hᴇᴀʟᴛʜ 299, 306 (2011), http://www.jstor.org/stable/26650211. ↑
Patricia D. Leighten, Critical Attitudes Toward Overtly Manipulated Photography in the 20th Century, 37 Aʀᴛ Jᴏᴜʀɴᴀʟ 133, 133 (1977), https://doi.org/10.2307/776182. ↑
Id. ↑
Richard Lacayo, The Naked and the Dead, Tɪᴍᴇ (Jan. 26, 2007), https://entertainment.time.com/2007/01/26/the_naked_and_the_dead/. ↑
Warren, Samuel D., and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review 4, no. 5 (1890): 193–220. https://doi.org/10.2307/1321160. ↑
Wilbur Larremore, The Law of Privacy, 12 Cᴏʟᴜᴍ. L. Rᴇᴠ. 693, 693 (1912). ↑
Fred O. Smith, Jr., The Constitution after Death, 120 Cᴏʟᴜᴍ. L. Rᴇᴠ. 1471, 1500 (2022). ↑
Id. at 1501–1502. ↑
Richard Shusterman, Aesthetic Censorship: Censoring Art for Art’s Sake, 43 Tʜᴇ Jᴏᴜʀɴᴀʟ ᴏғ Aᴇsᴛʜᴇᴛɪᴄs ᴀɴᴅ Aʀᴛ Cʀɪᴛɪᴄɪsᴍ 171, 171 (1984). ↑
Id. ↑
Irene Taviss Thomson. “Culture Wars and Warring about Culture.” In Culture Wars and Enduring American Dilemmas, 1–30. University of Michigan Press, 2010. https://doi.org/10.2307/j.ctt22p7hg8.3., 3-4. ↑
James Fitzpatrick, Norman Rosenthal, and Jake Chapman, Art Censorship, 149 RSA Jᴏᴜʀɴᴀʟ 53, 53 (2002), http://www.jstor.org/stable/41380441. ↑
Id. at 55. ↑

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

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