Shady Business | Rabbi Daniel Kirsch | Beit Midrash

Family and Society
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קטגוריה משנית

The carob and pine trees stood majestically. The bushes dotting the landscape, gracefully adorned with white and pink flowers, seemed to call out to passersby to admire their beauty. Yet even the breathtaking magnificence of the Carmel Mountains failed to hold the attention of the young Rabbi Shlomo Goren. The natural splendor that surrounded him paled in comparison to the majesty of the person sitting immediately in front of him – none other than Rabbi Avraham Yitzchak Hakohen Kook!
The two sat together, deep in Torah discussion. When they paused for a break, a young man began walking in their direction. "Honored Rabbi," the young man began "is it alright if I take a picture?"
Rabbi Kook graciously agreed. After the man had taken a picture, and walked away, Rabbi Kook began to speak again.
"I wonder if one is permitted to refuse to be photographed," Rabbi Kook mused. "Does one’s image, in fact, belong to him, that he can prevent another from using it? The question reminds me of an interesting news item that I heard about, once.
"There were two men, in India, who went out for a stroll. The heat proved to be somewhat oppressive, and the men felt compelled to take a break. They sat down on the sand, to rest and regain their strength. One of the men had been walking with his donkey, and the donkey sat down, alongside his owner. As the donkey sat down, the other man realized that the animal partially blocked the sunlight, and actually provided some shade from the glaring sun. The owner of the donkey became angry, and demanded that his friend move out of the donkey’s shade. The friend insisted that he was allowed to sit in the shade, and that it did not belong to the owner of the donkey. After repeated attempts to get his friend to move, the owner of the donkey began beating the other man, who fell helplessly to the ground, screaming in pain.
"The next day, there was a knock on the door of the donkey owner. He was being summoned to court, for having beaten up his friend. The local court heard the arguments of both parties, and could not decide whether, in fact, the donkey’s shade belonged to his owner, or not. The case was brought to a regional court, and then to the Supreme Court, as the judges were left puzzled, unable to decide who owned the donkey’s shade.
"At the time, India was under British jurisdiction. The case was brought before representatives of the queen, who were also at a loss to decide the outcome."
Does the owner of the donkey own the donkey’s shade? Similarly, is one allowed to refuse to have his picture taken?
Answer of Rabbi Avraham Yitzchak Hakohen Kook, zt"l:
Rabbi Kook discussed several sources from the Gemara, including Pesachim 25b and Avoda Zara 48b. He determined that a person’s shade does not belong to him. By extension, neither does his image, and, therefore, one may not refuse to be photographed.
In summary:
A person does not own his shade, and certainly not the shade of his animal. Similarly, a person has no right to prevent another person from taking a picture of him.
(The story comes from Oz V’taatzumot, page 77.)

(See also Rabbi Yosef Chaim Sonnenfeld’s B’shalmat Chaim (siman 773 regarding taking a picture of someone without permission )

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