Remember that discussion about taking photos of strangers in public?

Discussion in 'Digital Photography' started by Clix Pix, Mar 19, 2006.

  1. Clix Pix macrumors demi-goddess

    Clix Pix

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    #1
    Here is a fascinating article which appears in today's New York Times:

    The Theater of the Street, the Subject of the Photograph

    By PHILIP GEFTER
    March 19, 2006
    Art

    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.

    [The photo:
    http://graphics8.nytimes.com/images/2006/03/19/arts/geft.184.2.650.jpg ]

    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."


    Copyright 2006The New York Times Company
    __________________
     
  2. gallagb macrumors 6502

    gallagb

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    #2
  3. Clix Pix thread starter macrumors demi-goddess

    Clix Pix

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    #3
    Thanks! Probably because I had copied the article from another online discussion forum.... I know the link worked correctly there; I'll check into this. Thanks!

    OK....fixed. :)
     
  4. UKnjb macrumors 6502a

    UKnjb

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    #4
    Worked fine for me - and ------ good pic!
    Sorry that the plaintiff was pi*@ed enough to take it to court. And for so much money.
     
  5. gallagb macrumors 6502

    gallagb

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    #5
    yup- i got it to work for me
    had to 'open in new window' not just click on it
     
  6. CanadaRAM macrumors G5

    CanadaRAM

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    #6
    I don't agree with New York Times v. Clarence Arrington : IMO a magazine article is an item of commerce, not art. The photo was an added value that the NYT could easily have paid a model for, or done without; it was not integral to any 'art' value. And a photo in a newspaper or magazine article implies either endoresement, or involvement in the story. I think Mr. Arrington should have won.
     
  7. Doctor Q Administrator

    Doctor Q

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    #7
    I'm not concerned about this being a watershed precedent-changing case because it was a reasoned look at the tradeoffs. Drawing the line between privacy, art, and use of public space is bound to be a fuzzy area, and I'm glad to see statements like this:

    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.​
    If the parties in a trial are all looking at "context", I'm confident that over time the legal interpretations will change only slightly or gradually, and we won't instantly lose all rights to our privacy or instantly lose all rights to take public photos.

    But I am still strongly against those spy cameras at traffic intersections!
     
  8. Clix Pix thread starter macrumors demi-goddess

    Clix Pix

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    #8
    Probably the NYT had no idea who the particular individual was whose image was depicted in the shot they chose for the cover of the issue in which they ran their story. I agree that they might better have chosen to use a model and put that photo on the cover instead. Certainly they were taking a legal risk by showing someone who would be identifiable and whose identity and viewpoints they did not know. Of course without seeing the photo in question it's hard to know just how readily identifiable the subject actually was. Basically within the law as it now stands, the photographer had the right to take the photo, as the man was walking down a public street in a very public area... but the newspaper should have thought things through before not only just including that image, but featuring it on the cover of that particular issue without the subject's knowledge or consent. I have to say I don't blame Mr Arrington for being disturbed about this -- I would be, too, especially if I did not agree with the sentiments expressed in the actual accompanying article.
     
  9. Deepdale macrumors 68000

    Deepdale

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    #9
    New York's highest court sided with the media outlet, but I also feel aligned with Mr. Arrington's position. Just as it is said that being in public makes one fair game for professional and amateur picture takers, it would not have been unduly burdensome for the newspaper to have engaged the services of a model (or at least a willing subject who signed a general release).
     
  10. law guy macrumors 6502a

    law guy

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    #10
    The damages are interesting - punative are often difficult to recover, not knowing NY's standards for a punative award, I conjecture that it's similarly difficult. Punative awards are really designed (in theory) to punish actions (e.g., you knew the car would explode with that gas tank design, but you didn't change it anyway, and the like). Given the high level details in the article, this case, even if one prevailed on the merits of the civil suit, hardly seems appropriate for any punative relief.

    The compensatory damages may seem high, but they look to me to be figured to cover the cost of representation including an appeal and limited discovery. $500,000 would cover 1250 hours of a relatively large firm partner's time at a discounted $400 an hour. So you reduce down the partner time to 400 hours, add back in time for associates at $275 to $325 an hour, paralegal support at $140 an hour and actual incurred costs for research, couriers, filing fees, travel, reporters for depositions, etc. and this would could get eaten up fairly quickly.

    The case itself is too bad in that it seems that it might make folks think twice before snapping a picture of a street scene and include it in some published format.
     
  11. mcmadhatter macrumors 6502

    mcmadhatter

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    #11
    The size of damage claims in the USA always amaze me. What basis was there for the damages costing $2 million USD. I mean Why not say he wanted all profits from any photograph taken of him, an injunction to stop the photo being used again, small damages (less than $10k) and legal costs . In the UK you'd be lucky to get 100K Damages.
     
  12. Abstract macrumors Penryn

    Abstract

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    #12
    This guy has no case, but the other incident involving the Arrington and the NYT......well, I wouldn't want to be on the cover of a magazine without being told beforehand. I also don't consider it art when used in that way. It's one thing when there are lots of other people in the photo, and I just happened to be one of them by chance, but when I'm being photographed and a point is being made using my photo on the cover of a massively popular magazine to be read by millions of people around the world, then that's pushing it.
     
  13. notjustjay macrumors 603

    notjustjay

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    #13
    Does it not strike anyone else as ironic that, now that details of his suit have been made public knowledge through publication in The New York Times, his picture is even MORE "in the public eye"?
     
  14. Flyingpig macrumors newbie

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    Jan 2, 2005
    #14
    What about the right for paparazies to snap anybody on the street and sell it to WhoreMagazine?? I don't tink that contrevene the law? And it's definitely not Art.
     
  15. Counterfit macrumors G3

    Counterfit

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    #15
    Not me :D
     
  16. Abstract macrumors Penryn

    Abstract

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    #16
    No, but being "famous" means being in the public eye. If you're just walking to work at an office, and you're on the cover of The New York Times with lots of other people coincidentally, then fine. I think that's perfectly acceptable. If you seem to be featured in that magazine, and they're using your image to represent their thoughts and feelings on a particular topic (and in that case, the story was about "race"), I'd want to sue. I know the law wouldn't be on my side, and I don't think I would ever sue because I already know I won't win, but I would definitely feel violated and don't think it's appropriate, regardless of what the law says about photography in public.

    If I was a Wall Street banker or whatever, and a massive publication uses my face and image to visually represent race in the workplace, or greed, or vanity, or affirmative action, or any topic that people generally have strong feelings about, then I think it's inappropriate.

    If a woman was on the cover of the NYT and their main story that issue was on abortion, then that is also inappropriate if she wasn't asked for permission beforehand.

    There are lots of examples. I think that's why magazines generally ask permission if they're going to use a lone person's likeness on a commercial item, even if they don't need to --- decency.
     

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