Law, Photography, Decontextualization

Irving Penn, Three Asaro Mud Men, New Guinea (1970)

I want to cross two very different experiences on each other, hinging them on the process of decontextualization. The first experience is of looking at Irving Penn’s photos in his classic 1974 collection Worlds in a Small Room. The second one is of arguing the unconstitutionality of constructive murder in the case of R. v. Laviolette [1987] 2 SCR 667. 

Penn’s photos are black-and-white portraits of Peruvian peasants, Parisian tradesmen, Cretan old-timers, Spanish gypsies, New Guinea tribesmen, and so on. Penn didn’t photograph them in their natural environments. Instead, he invited them into his portable studio, and photographed them against a neutral backdrop. In his Introduction to Worlds in a Small Room, Penn said, “Taking people away from their natural circumstances and putting them into the studio in front of a camera did not simply isolate them, it transformed them.” 

Yes, but did it transform them in a good way? That’s the question I struggle with every time I look at these arresting pictures. Janet Malcolm, in a review of an exhibition of Penn’s cigarette butt photos, in which he used the same isolating method he used in Worlds in a Small Room, said, “Penn’s butts efface reality” (Diana & Nikon, 1980). That strikes me as exactly right. The same applies to his Worlds in a Small Room portraits: they remove people from their own context and treat them like botanical or zoological specimens. They efface reality. To me, that’s one of the most damning things you can say about a work of art. 

The word for Penn’s method is “decontextualization” – divorcing something from its original context. It’s a good description for what happens in certain legal cases, too. I was reminded of this point recently when I read Dale Carpenter’s Flagrant Conduct (2012), an absorbing account of Lawrence v. Texas, the landmark Supreme Court decision that overturned America’s sodomy laws. Carpenter shows how Lawrence and Garner’s lawyers, realizing the constitutional potential of their case, repackaged it. They persuaded Lawrence and Garner, who denied engaging in same-sex sodomy, to change their plea from “not guilty” to “no contest.” That eliminated argument on the facts and focused the case solely on the constitutionality of the law they were charged under. As Carpenter says, “Lawrence advanced as a case because nobody wanted to know what the underlying facts were.”

The conversion of raw facts to elegant legal argument fascinates me. I engineered such a conversion in R. v. Laviolette, in which the Supreme Court of Canada struck down constructive murder. The facts were brutal. Three young men went at night to the parish house at Kelly’s Cross, Prince Edward Island, with the intent of robbing it. The oldest of the three, Stephen, went inside and fatally struck the occupant, a priest, on the head with a length of iron pipe. All three were charged with homicide under the doctrine of constructive murder, which holds that if a murder is committed during the course of commission of a felony, such as break-and-enter, all participants in that felony are guilty of murder. 

I represented one of the two men who stayed outside the parish home. At trial, he was found guilty. In the time between his trial and his appeal, the Canadian Charter of Rights and Freedoms was enacted. On appeal, I argued that constructive murder offended Charter section 7, which guarantees, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” I contended that one of the principles of fundamental justice is that intention to murder is an element of the offence of murder, and that constructive murder eliminates that element. The Prince Edward Island Court of Appeal rejected my argument. We appealed to the Supreme Court of Canada. On December 3, 1987, the Court allowed the appeal, striking down the doctrine of constructive murder on the ground that it was inconsistent with Charter section 7.

But I’ve always had a twinge of guilt about Laviolette – the way the case was severed from its grisly facts (iron pipe, smashed skull, loss of a singular life), and repackaged as an abstract constitutional argument about the essential ingredients of murder and the meaning of “principles of fundamental justice.” It effaced reality.  

Is Photography Transformative?

Benjamin Lowy, "Latham Smith" (2010)

John Berger, in his “Understanding a Photograph” (included in his 2012 essay collection of the same name), wrote, “There is no transforming in photography. There is only decision, only focus.” In contrast, Janet Malcolm, in her “Burdock” (The New York Review of Books, August 14, 2008), says, “Taking a picture is a transformative act.” Here are two major photography critics disagreeing on a fundamental photographic issue. Who’s right?

I’m drawn to Berger’s view. I relish photographs that show people, places, and things exactly as they are – unaltered, unfiltered, undistorted. My idea of a great photograph is Benjamin Lowy’s portrait of tugboat captain Latham Smith (see above), which appeared in the April 19, 2010, New Yorker, as an illustration for Burkhard Bilger’s superb “Towheads.” Lowy’s photo brims with raw reality – rope, cables, water, rust, a nearly sunken barge, and Smith himself, leaning forward against a yellow railing, wearing a dark green shirt and navy watch cap, giving the camera a hard-eyed stare.  

In his essay “Appearances,” Berger said, “Photographs do not translate from appearances. They quote from them.” I agree. Photography is an art of quotation, taking images directly from reality. Lowy’s Latham Smith photo exemplifies the art brilliantly.

In her essay “Burdock,” Malcolm describes the way she photographs burdock leaves. She doesn’t photograph them in situ. She snips them off the plants, takes them to her studio, props them in small glass bottles, and photographs them head on, “as if they were people facing me.” The process, she says, is a form of decontextualization:

What I have done with the burdock leaves is, of course, part of the enterprise of decontextualization that received its awkward name in the late twentieth century and was a fixture of that century’s visual culture. Patchwork quilts hung on the walls of museums, African tribal masks used to decorate orthodontists’ waiting rooms, ship propellers displayed on coffee tables – these are some familiar forms of the practice of taking something from where it belongs and that has a function, and putting it where it doesn’t belong and merely looks beautiful. It looks beautiful in a particular way, to be sure, the way of modernist art and architecture and design. When I remove a burdock leaf from its dusty roadside habitat, I anticipate the stylized aspect it will assume when it is set upright against the clean white walls of my attic studio, its lineaments refined by sunlight coming from above.

Janet Malcolm, "Burdock No. 1" (2005-07)

Malcolm’s method is sourced in Irving Penn’s decontextualized photography: see, for example, his photos of artificially posed Peruvian Indians, Spanish gypsies, and San Francisco Hell’s Angels in his 1974 collection, Worlds in a Small Room. Interestingly, thirty years before she started taking her burdock pictures, Malcolm wrote a piece, titled “Certainties and Possibilities” (The New Yorker, August 4, 1975), criticizing Penn’s approach. She quotes a passage from Penn’s Worlds in a Small Room, in which he says, “Taking people away from their natural circumstances and putting them into the studio in front of a camera did not simply isolate them, it transformed them.” Malcolm comments,

Penn removes people from their own context and treats them like botanical or zoological specimens. He lures them into his studio, sits them on cloth-draped structures, subjects them to a north light that shadows half of each face, and sometimes literally pushes them into a corner that his brutal direction has put them emotionally.

She says of Penn’s enormously enlarged photographs of cigarette and cigar butts,

Penn’s pictures of butts exhibit all the rough oddity of the found art object that emerges from the enlargement of a murky detail in a torn, unregarded snapshot or of a quaintly drab illustration in an old textbook; they partake of the transformation that quilts and ship propellers and industrial tools undergo when they are wrested from their functional context and put on show for their aesthetic qualities. And they suffer from the same paradoxical devitalization that comes over useful objects when they are no longer in use. The tacky machine-made synthetic comforter on the bed has more connection with life – is more genuine, in its way – than the handsome antique quilt that hangs on the wall as if it were a painting, and in this respect Penn’s sleek pictures of clothes and caviar in Vogue and Harper’s Bazaar, far from paling before the rough vigor of his pictures in the museum show, present a kind of rebuke to the latter’s false vernacularism.

Irving Penn, "Cigarette No. 86" (1972)

In a line I’ve never forgotten, she says, “Unlike Weston’s peppers and cabbages, which celebrate Weston’s religion of 'the thing itself' and permanently alters one’s vision of these vegetables, Penn’s butts efface reality.”

Is photography transformative? Yes, it can be, in the decontextualizing sense that Malcolm describes. Does photography have to be transformative in order to be artful? No, it doesn’t. Lowy’s striking “Latham Smith” portrait is proof of that. It doesn’t transform reality; rather, it precisely and vividly quotes from it. For me, the art of photography is, in Berger’s words, “the art of quotation.”

The Nabokov-Wilson Feud

Vladimir Nabokov (Photo by Irving Penn)

Gary Saul Morson, in his “Will We Ever Pin Down Pushkin?” (The New York Review of Books, March 23, 2017), calls the battle between Vladimir Nabokov and Edmund Wilson over Nabokov’s translation of Pushkin’s Eugene Onegin “one of the great quarrels of American literary history.” Morson appears to side with Wilson, opining, “Wilson’s criticisms were mostly on target.” Reading Morson’s piece, I recalled John Updike’s great “The Cuckoo and the Rooster” (The New Yorker, June 11, 1979), a review of The Nabokov-Wilson Letters, in which Updike held that Wilson had “a good eye for what was defective or lop-sided in Nabokov, but something of a tin ear for the unique music this ‘inescapably’ artistic man could strike from anything.” Updike wrote, “Without minimizing the kindnesses and excitements that Wilson contributes, this reviewer found Nabokov’s letters the more alive and giving, certainly the more poetic and dense.” I realize that Morson, in his piece, is dealing with Nabokov’s translation, not his letters. Nevertheless, in considering the validity of Morson’s views (e.g., “Nabokov deliberately made his translation unreadable”), I suggest that Updike’s point about “the unique music this ‘inescapably’ artistic man could strike from anything” should be kept in mind. It's possible Morson's ear is as tinny as Wilson's. 

Janet Malcolm's "Forty-one False Starts" - Part III

Is Janet Malcolm’s view of Irving Penn’s photography a case of pay attention to what I do, not what I say? I think so. In her early essay on Penn, “Certainties and Possibilities” (The New Yorker, August 4, 1975; included in her 1980 collection Diana and Nikon), a review of a MoMA exhibition of Penn’s photographs of cigarette butts, she says, “Penn’s butts efface reality.” It’s one of the most devastating (and memorable) art criticisms I’ve ever read. What I treasure in art is its realism – depiction of, in Edward Weston’s famous words, “the thing itself.” Here’s a photographer, Malcolm says, pointing at Penn, who uses his camera – that most accurate of devices - not to capture reality, but to erase it. It’s an audacious claim, yet Malcolm’s piece persuasively makes the case:

Penn’s pictures of butts exhibit all the rough oddity of the found art object that emerges from the enlargement of a murky detail in a torn, unregarded snapshot or of a quaintly drab illustration in an old textbook; they partake of the transformation that quilts and ship propellers and industrial tools undergo when they are wrested from their functional context and put on show for their aesthetic qualities. And they suffer from the same paradoxical devitalization that comes over useful objects when they are no longer in use. The tacky machine-made synthetic comforter on the bed has more connection with life – is more genuine, in its way – than the handsome antique quilt that hangs on the wall as if it were a painting, and in this respect Penn’s sleek pictures of clothes and caviar in Vogue and Harper’s Bazaar, far from paling before the rough vigor of his pictures in the museum show, present a kind of rebuke to the latter’s false vernacularism.

Irving Penn, "Cigarette No. 86," 1972

Malcolm, in her “Certainties and Possibilities,” also looks at Penn’s portraits. She says that they are “first of all Penns and only incidentally pictures of individuals.” She says, in what is, for me, her clinching argument,

Penn removes people from their own context and treats them like botanical or zoological specimens. He lures them into his studio, sits them on cloth-draped structures, subjects them to a north light that shadows half of each face, and sometimes literally pushes them into a corner that his brutal direction has put them emotionally.

Malcolm quotes from Penn’s Worlds in a Small Room (1974), in which he says, “Taking people away from their natural circumstances and putting them into the studio in front of a camera did not simply isolate them, it transformed them.” Yes, Penn’s method is transformative, but not in a good way, Malcolm seems to say, in “Certainties and Possibilities.” Looking at Worlds in a Small Room’s pictures of artificially posed Peruvian Indians, Spanish gypsies, San Francisco Hell’s Angels, etc., I agree. They are, to use Malcolm’s excellent word, devitalized.

In her “Nudes Without Desire” (The New York Review of Books, April 11, 2002; included in her splendid new collection Forty-one False Starts), Malcolm continues her critique of Penn’s transformative approach. This time her subjects are two shows of Penn’s photograph’s of female nudes – the Metropolitan Museum of Art’s Earthly Bodies: Irving Penn’s Nudes, 1949-50 and the Whitney Museum of American Art’s Dancer: 1999 Nudes by Irving Penn. Regarding Earthly Bodies, Malcolm says, “The photographs immediately raise questions about their making.” She describes Penn’s “darkroom hocus-pocus” as follows:

Step one was to obliterate the image by overexposing the printing paper to such a degree that it turned completely black in the developer. Step two was to put the black paper into a bleach solution that turned it white. Step Three was to put the white paper into a solution that coaxed back the image, but only up to a point – the point where the earthly bodies exhibit an unearthly pallor and, in certain cases (such as the catalog cover picture), a flat abstractness that human bodies assume only in primitive and modernist art.

Once again, according to Malcolm, Penn has produced a series of devitalized (“flat,” “unearthly”) images. This isn’t the only similarity with his butt pictures. The type of body he’s chosen to photograph is ugly. Malcolm says, “The idea seems to be to make beautiful pictures of ugly bodies.”

Looking at the Dancer nudes, Malcolm says she “has trouble keeping a straight face.” She writes, “As Beller [Alexandra Beller, Penn’s model], with lowered eyes or averted gaze, strikes one absurdly theatrical attitude after another, Penn photographs her with an almost religious solemnity.” Comparing the Dancer nudes with E. J. Bellocq’s nudes, she says, “Penn’s dancer has nothing in common with Bellocq’s larkily relaxed whores.” She refers to the “wonderful warmth and life” of Bellocq’s photographs.

Malcolm makes an exception for the last eight photographs taken at the final Dancer session. She says, “They show the dancer in motion and have a “mysterious blurred painterliness.” “But,” she says, “they cannot change the show’s overall daunting impression.” She concludes “Nudes Without Desire” with the observation that “Not all experimental work works,” and that Penn erred in his decision to show the Earthly Bodies series and Dancer’s first nineteen images.

Janet Malcolm, "Burdock No. 1," 2005-07

But what Malcolm rejects in “Certainties and Possibilities” and “Nudes Without Desire,” she appears to embrace in her own photography and in her essay “Burdock” (The New York Review of Books, August 14, 2008). In “Burdock,” she says, echoing Penn’s Worlds in a Small Room, “Taking a picture is a transformative act.” And the method she uses to photograph her burdock leaves is the same artificial one that Penn used to photograph his butts. She describes it as follows:

What I have done with the burdock leaves is, of course, part of the enterprise of decontextualization that received its awkward name in the late twentieth century and was a fixture of that century’s visual culture. Patchwork quilts hung on the walls of museums, African tribal masks used to decorate orthodontist’s waiting rooms, ship propellers displayed on coffee tables – these are some familiar forms of the practice of taking something from where it belongs and that has a function, and putting it where it doesn’t belong and merely looks beautiful. It looks beautiful in a particular way, to be sure, the way of modernist art and architecture and design. When I remove a burdock leaf from its dusty roadside habitat, I anticipate the stylized aspect it will assume when it is set upright against the clean white walls of my attic studio, its lineaments refined by sunlight coming from above.

Decontextualization is exactly the process Penn used to photograph his cigarette butts, his ugly nudes, and the various “simple people” (Penn’s condescending words) depicted in his Worlds in a Small Room. It’s the very process that Malcolm previously criticized (rightly, in my opinion) as “devitalizing” and “effacing reality.” Now, in an interesting volte-face, she says it’s “beautiful in a particular way … the way of modernist art and architecture and design.” Obviously, Penn has influenced her more than she admits. In “Certainties and Possibilities,” she says, “Penn removes people from their own context and treats them like botanical or zoological specimens.” That’s exactly the treatment she accords her burdock leaves. In “Burdock,” she says,

But I also see images that pre-date modernism: namely, the illustrations in eighteenth- and nineteenth-century herbals and works of botanical science, whose subjects have been similarly plucked from nature and rendered in splendid unnatural isolation. Although these decontextualizations are in aid of identification and classification, the old botanical artists were hardly immune to the beauty of the forms they scrutinized with such care. Looking at natural forms close up is an exercise in awe. The botanical illustrators never failed to convey their sense of the mystery that adheres to the gorgeousness of the particulars of the things that are alive in the world. These photographs were made under their inspiration.

Like “the old botanical artists,” and like Irving Penn, whose method, she said, treated people “like botanical specimens,” Malcolm has chosen to render her subjects in “splendid unnatural isolation.” Are her denatured burdock leaves beautiful? No and yes. No, they’re not beautiful; they’re dry, devitalized, lifeless. They lack the “wonderful warmth and life” that Malcolm says she finds in Bellocq’s photographs. They efface burdock reality. But wait a minute. My tactile imagination is now in play. There’s another way of looking at them; my fingers accompany my eyes. Yes, they are beautiful – for their crumbly, wrinkly, time-eaten texture. Texture is, as Bernard Berenson pointed out in Italian Painters of the Renaissance (1952), an important aesthetic element. Malcolm’s burdock leaves have it; so do Penn’s butts. 

(This is the third part of a four-part review of Janet Malcolm's Forty-one False Starts.)