another attack on street photography.

[Dug]

Another attack on street photography. It makes for interesting reading..




Quote:
The Theater of the Street, the Subject of the Photograph

By PHILIP GEFTER
Published: March 19, 2006
IN 1999 Philip-Lorca diCorcia set up his camera on a tripod in Times Square, attached strobe lights to scaffolding across the street and, in the time-honored tradition of street photography, took a random series of pictures of strangers passing under his lights. The project continued for two years, culminating in an exhibition of photographs called "Heads" at Pace/MacGill Gallery in Chelsea. "Mr. diCorcia's pictures remind us, among other things, that we are each our own little universe of secrets, and vulnerable," Michael Kimmelman wrote, reviewing the show in The New York Times. "Good art makes you see the world differently, at least for a while, and after seeing Mr. diCorcia's new 'Heads,' for the next few hours you won't pass another person on the street in the same absent way." But not everyone was impressed.

When Erno Nussenzweig, an Orthodox Jew and retired diamond merchant from Union City, N.J., saw his picture last year in the exhibition catalog, he called his lawyer. And then he sued Mr. diCorcia and Pace for exhibiting and publishing the portrait without permission and profiting from it financially. The suit sought an injunction to halt sales and publication of the photograph, as well as $500,000 in compensatory damages and $1.5 million in punitive damages.

The suit was dismissed last month by a New York State Supreme Court judge who said that the photographer's right to artistic expression trumped the subject's privacy rights. But to many artists, the fact that the case went so far is significant.

The practice of street photography has a long tradition in the United States, with documentary and artistic strains, in big cities and small towns. Photographers usually must obtain permission to photograph on private property — including restaurants and hotel lobbies — but the freedom to photograph in public has long been taken for granted. And it has had a profound impact on the history of the medium. Without it, Lee Friedlander would not have roamed the streets of New York photographing strangers, and Walker Evans would never have produced his series of subway portraits in the 1940's.

Remarkably, this was the first case to directly challenge that right. Had it succeeded, "Subway Passenger, New York City," 1941, along with a vast number of other famous images taken on the sly, might no longer be able to be published or sold.

In his lawsuit, Mr. Nussenzweig argued that use of the photograph interfered with his constitutional right to practice his religion, which prohibits the use of graven images.

New York state right-to-privacy laws prohibit the unauthorized use of a person's likeness for commercial purposes, that is, for advertising or purposes of trade. But they do not apply if the likeness is considered art. So Mr. diCorcia's lawyer, Lawrence Barth, of Munger, Tolles & Olson in Los Angeles, focused on the context in which the photograph appeared. "What was at issue in this case was a type of use that hadn't been tested against First Amendment principles before — exhibition in a gallery; sale of limited edition prints; and publication in an artist's monograph," he said in an e-mail message. "We tried to sensitize the court to the broad sweep of important and now famous expression that would be chilled over the past century under the rule urged by Nussenzweig." Among others, he mentioned Alfred Eisenstaedt's famous image of a sailor kissing a nurse in Times Square on V-J Day in 1945, when Allied forces announced the surrender of Japan.

Several previous cases were also cited in Mr. diCorcia's defense. In Hoepker v. Kruger (2002), a woman who had been photographed by Thomas Hoepker, a German photographer, sued Barbara Kruger for using the picture in a piece called "It's a Small World ... Unless You Have to Clean It." A New York federal court judge ruled in Ms. Kruger's favor, holding that, under state law and the First Amendment, the woman's image was not used for purposes of trade, but rather in a work of art.

Also cited was a 1982 ruling in which the New York Court of Appeals sided with The New York Times in a suit brought by Clarence Arrington, whose photograph, taken without his knowledge while he was walking in the Wall Street area, appeared on the cover of The New York Times Magazine in 1978 to illustrate an article titled "The Black Middle Class: Making It." Mr. Arrington said the picture was published without his consent to represent a story he didn't agree with. The New York Court of Appeals held that The Times's First Amendment rights trumped Mr. Arrington's privacy rights.

In an affidavit submitted to the court on Mr. diCorcia's behalf, Peter Galassi, chief curator of photography at the Museum of Modern Art, said Mr. diCorcia's "Heads" fit into a tradition of street photography well defined by artists ranging from Alfred Stieglitz and Henri Cartier-Bresson to Robert Frank and Garry Winogrand. "If the law were to forbid artists to exhibit and sell photographs made in public places without the consent of all who might appear in those photographs," Mr. Galassi wrote, "then artistic expression in the field of photography would suffer drastically. If such a ban were projected retroactively, it would rob the public of one of the most valuable traditions of our cultural inheritance."

Neale M. Albert, of Paul, Weiss, Rifkind, Wharton & Garrison, who represented Pace/MacGill, said the case surprised him: "I have always believed that the so-called street photographers do not need releases for art purposes. In over 30 years of representing photographers, this is the first time a person has raised a complaint against one of my clients by reason of such a photograph."

State Supreme Court Justice Judith J. Gische rejected Mr. Nussenzweig's claim that his privacy had been violated, ruling on First Amendment grounds that the possibility of such a photograph is simply the price every person must be prepared to pay for a society in which information and opinion freely flow. And she wrote in her decision that the photograph was indeed a work of art. "Defendant diCorcia has demonstrated his general reputation as a photographic artist in the international artistic community," she wrote.

But she indirectly suggested that other cases might be more challenging. "Even while recognizing art as exempted from the reach of New York's privacy laws, the problem of sorting out what may or may not legally be art remains a difficult one," she wrote. As for the religious claims, she said: "Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive. While sensitive to plaintiff's distress, it is not redressable in the courts of civil law."

Mr. diCorcia, whose book of photographs "Storybook Life" was published in 2004, said that in setting up his camera in Times Square in 1999: "I never really questioned the legality of what I was doing. I had been told by numerous editors I had worked for that it was legal. There is no way the images could have been made with the knowledge and cooperation of the subjects. The mutual exclusivity that conflict or tension, is part of what gives the work whatever quality it has."

Mr. Nussenzweig is appealing. Last month his lawyer Jay Goldberg told The New York Law Journal that his client "has lost control over his own image."

"It's a terrible invasion to me," Mr. Goldberg said. "The last thing a person has is his own dignity."

Photography professionals are watching — and claiming equally high moral stakes. Should the case proceed, said Howard Greenberg, of Howard Greenberg Gallery in New York, "it would be a terrible thing, a travesty to those of us who have been educated and illuminated by great street photography of the past and, hopefully, the future, too."

[Nnnnsic]

I heard about this several months ago.

[Dug]

sorry if I have posted something that is old news

[Alpha_7]

Was news to me Dug, so thanks for bring it to my attention.

[Grev]

I think "common sense" prevailed this time.

[Oneputt]

What concerns me about this story is the "art" part of the argument and the photographers standing.

If it were a unknown photographer, would the outcome have been different?

[Frankenstein]

What concerns me about this story is the "art" part of the argument and the photographers standing.

If it were a unknown photographer, would the outcome have been different?

Good point - and that argument would come only after going to court, with all the costs associated with that. Sometimes I really do worry about the future of amateur photography - will we all be destined to only be allowed to take shots of flowers in our own back gardens?

Frank

[Dug]

What concerns me about this story is the "art" part of the argument and the photographers standing.

If it were a unknown photographer, would the outcome have been different?

Good point - and that argument would come only after going to court, with all the costs associated with that. Sometimes I really do worry about the future of amateur photography - will we all be destined to only be allowed to take shots of flowers in our own back gardens?

Frank

you pervert Frank Photographing flowers in their beds!!!

you should be locked up with all the other photographers

[whiz]

I don't think that this is an attack on photography, per se, but it's a lesson on getting model releases.
The photo of the jewish guy is around on the web somewhere. I read about it a few months ago.

[Big Red]

it really opens up a can of worms ...
if a womans dress blows up in the wind while you are taking a "general area" pic ...
is there a coloured person in the pic ...
is there kids in the pic ...
is there retarded people in the pic ...
are you a professional photographer ...
are you an artist ...


etc etc etc.

I vote for "if its in a public place you should expect to be seen or photographed "

is there really much difference to being seen picking your nose or getting photographed picking your nose in a public place?

i guess a lot comes down to the photographer being nice and not publishing things which may cause embarrassment.

[whiz]

I vote for "if its in a public place you should expect to be seen or photographed "

You don't have to vote.
In Australia, it's the interpretation of the law that you have no rights NOT to be photographed if you're in public.

[Killakoala]

I reckon the bloke was just trying to get some money off the photographer. Not really a 'moral' issue here, but one of greed. I'm sure the judge saw it that way too.

1.5 million for punitive damages. What a crock of shit.

[gstark]

I reckon the bloke was just trying to get some money off the photographer. Not really a 'moral' issue here, but one of greed. I'm sure the judge saw it that way too.

1.5 million for punitive damages. What a crock of shit.

Exactly.

[Grev]

So do you guys think his claim about his religion being the case is valid?

[gstark]

So do you guys think his claim about his religion being the case is valid?

About as valid as WMD.

[thaddeus]

I can't see what the issue is
(a) It's in the USA
(b) The case was rejected
(c) The article is not sourced, so it's not clear whether the source is reliable

[Oneputt]

thaddeus - as we seem to follow the lead of the USA in many things, it is of interest. Note I said interest, not concern.

[Matt. K]

Oneputt
The law does not state you have to be a famous artist! If you decide to make art then it is art. It's that simple.

[Oneputt]

Matt I was merely wondering what the outcome would have been if it had been an unknown standing before the judge trying to explain that he was an artist and not a voyeur

[cameraguy21773]

I reckon the bloke was just trying to get some money off the photographer. Not really a 'moral' issue here, but one of greed. I'm sure the judge saw it that way too.

1.5 million for punitive damages. What a crock of shit.

Exactly.

It really bothers me that we (the US) have become such a litigious society. I have been chased away from public/government locations occasionaly because my equipment "looks professional and I might profit from taking pictures there".

[Greg B]

This is more about litigation and money than anything else, as posters above have noted in different ways.

Fortunately, the Judge apparently determined that the cause was without foundation, but the leap to litigate is one more thing that I sincerely hope Australia doesn't embrace as has been the case in the USA.

(One of my favourites was the woman who sued McDonalds because the hot coffee was hot, so that the plastic lid on many take away coffees now has a warning notice to the effect that the contents are hot. Holy crap.)

[moz]

I have been chased away from public/government locations occasionaly because my equipment "looks professional and I might profit from taking pictures there".

Those stories bother me, I have to admit. Although I do think (sarcastically) "and heaven forbid anyone in the US make a profit from publicly owned property". But the idea that the camera is a threat all by itself is just really annoying, especially if you do a bit of street photography.

[RICPIC]

So do you guys think his claim about his religion being the case is valid?

if he's so concerned about being photographed, he shouldn't go onto the street. the pictures are a record of a public scene, does he feel violated if people look or stare at him?

[Mitchell]

The issue here seems to be someone profiting from someone elses image. This guy presumably hasn't brought actions against all the companies that have his image on closed circuit television...

What concerns me about this story is the "art" part of the argument and the photographers standing.

If it were a unknown photographer, would the outcome have been different?

The privacy laws are only a problem if you are profiting from the images - an unknown photographer would more than likely not be profiting from these images, therefore would be protected. If they were profiting then they probably are also displaying their work- both good arguments that it is art and again would be safe from damages.
I think this is a good result and is unlikely to herald further problems for amateurs wandering the streets.

One of my favourites was the woman who sued McDonalds because the hot coffee was hot

This case was a bit of a meeja beat up. The woman was awarded millions in compensation - not because of her injuries, but because of punitive action toward Maccas.
The restaurant had about 5 previous cases where people had serious burns from the coffee, and on multiple occasions were told by a court to decrease the temperature of the coffee. They didn't, and finally the court gave a punishment the profit on coffee alone over a set time period. This was millions of $ and the lady who brought the case just happened to get lucky, and cleaned up...

[ozczecho]

This case was a bit of a meeja beat up. The woman was awarded millions in compensation - not because of her injuries, but because of punitive action toward Maccas.
The restaurant had about 5 previous cases where people had serious burns from the coffee, and on multiple occasions were told by a court to decrease the temperature of the coffee. They didn't, and finally the court gave a punishment the profit on coffee alone over a set time period. This was millions of $ and the lady who brought the case just happened to get lucky, and cleaned up...

Well I like my coffee hot. So if Maccas give me a cold coffee I'll be cranky as hell.

I am glad that in this case sanity provailed, but I reckon (and fear) that sooner rather than later a case will be lost and futher rights of photogs will be eroded.

[Matt. K]

Oneputt
There is no difference between an artist and a voyeur! We just made it respectable!

[nito]

So do you guys think his claim about his religion being the case is valid?

About as valid as WMD.

More like photograph of mass destruction (PMD).
i,e, you cheating on your partner and a street photographer captures the moment.