Philip-Lorca diCorcia street photography law suit report

see this article in the NY Times for an analysis of this court

decision and its effect on street photography....

 

http://www.nytimes.com/2006/03/19/arts/design/19phot.html

 

(NY Times requires that you subscribe to view online articles and this

subscription is free.)

glad to see diCorcia won the case........troubled to see Nussenzweig appealing it...

...admittedly I don't have a full understanding of the religious context of the complaint, I find the lawyers implication about loss of dignity out of line, it is a worthy image.

Thanks for pointing out the article.<p>

 

We had an <a href=http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=00FE4j&tag=>extended discussion about this case here last month, when the dismissal was first reported</a>.<p>

Here is a link to the Nussenzweig vs. DiCorcia decision:

 

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_50171.htm

 

Michael S.' link to last month's discussion has some good 'stuff' and is worth the click for those who are interested in these issues.

 

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This would be the moment when all the photographers in the courtroom and around the world break into a spontaneous cheer.

A decision going the other way -- the 'wrong way,' I'd argue -- would, in New York and other places that recognize a so-called right to publicity, basically put street photographers who sell their work out of business. They could still take the photos, but couldn't sell them. DiCorcia would have to join us here on Street/Doc and post for fun.

 

In practical effect, such a decision might result in state legislatures, in New York and elsewhere, having an opportunity to clarify statutory publicity rights. That, too, is not an especially pleasing thought at a time like this.

 

As to the religious aspect of the case, the Court dealt with that part of plaintiff's claim summarily, and in my view, quite correctly:

 

<< ... Plaintiff argues that the use of the photograph interferes with his constitutional right to practice his religion. The free exercise clause, however, restricts state action. Zelman v. Simmon-Harris, 122 SCt 2460 (2002). There is no state action complained of in this case, only the private actions of defendants. ... >>

 

The fact that plaintiff is appealing doesn't surprise me, but it would surprise me if the decision is in any material respect reversed on appeal.

Obviously, neither Mr. Nussenzweig nor his lawyer ever read their scriptures. :) The graven images which was listed in the 10-commandments referred to the ones which the idolators used to worship to --- it is about focusing on what/who you worship. Who is worshipping or in any way participating in the act of worship pertaining to the published photographs? Is anyone worshipping Mr. Nussenzweig's images? Another frivilous law-suit!

I believe you may have misread plaintiff's theory of the free excercise aspect of the case, Arthur. It's different from the theory you've expressed, but in my view (and more importantly, the Court's view) it's still groundless.

<i>...and its effect on street photography....</i>

<p>

?

I'm curious who is responsible for diCorcia's legal fees to defend himself in this case.

Good question, Kent. Short answer: DiCorcia pays his attorney's fees.

 

Longer answer: The general American rule is that absent (i)a statute that entitles a prevailing party to recover attorney's fees; or (ii)a contract that provides for attorney's fees (e.g., most loan agreements, leases, your retail credit card agreeements, etc.), and absent a court's determination that a lawsuit is not only without merit, but so utterly lacking in legal/factual basis that it's tantamount to a bad faith effort to harrass another party and/or abuse the legal system, *each party pays his own attorney's fees.*

Thanks Michael.

DiCorcia's professional or general liability insurer most likely defended him under a reservation of rights.

Merchant of Venice, 2006

On a tangential note....

 

There are instances of inappropriate "acts" captured on camera in an unsuspecting manner, and subsequently released causing someone to take legal action against the photographer.

 

Many years ago, I heard of a case involving a successful Beverly Hills lawyer whose wife was suspecting him of having an affair with someone that the lawyer had flatly denied. One day, a traffic citation showed up in the mail with a photograph taken by one of the then newly installed traffic light cameras in the city of Beverly Hills, showing the lawyer running a red light in his Mercedes with his face and the face of his companion clearly visible in the picture. As you probably guessed it, the companion was the woman the lawyer's wife had been accusing him of having an affair with.

 

The lawyer's wife filed for a divorce, and the lawyer successfully sued the city of Beverly Hills winning huge sums of money. And everyone had a nice dinner at Spago, except the city officials.

 

I heard that as a result of this case, they no longer send you a traffic citation to your home with the picture showing the driver's face, but merely show the license plate of the car.

I had such strong views on this case. The "injured" victim, with no apparent regard for the consequences of his actions on the general viewing public wants his pound of flesh. Like the play, the argument is settled in a court of law and wisdom prevails. But had this case gone the other way, Erno Nussenzweig would have gotten his piddly-ass reward and forevermore street photographers would not have had a foot to stand on. Gone would be the inheritors of the tradition of Walker Evans, HCB, Klein, Frank. In taking his pound of flesh, Nussenzweig did not seem to consider it vital that he�d be killing the host which feeds many others, a multitude. He wants only for himself and let the rest of the world be damned. He is a villain of the first order.

<< ... He is a villain of the first order. ... >>

 

Actually, Kent, I've seen much, much worse ... and so have you.

 

My take: plaintiff's theory was that in walking inadvertently into DiCorcia's previously set-up and evidently elaborate outdoor lighting contraption, he (plaintiff) unwittingly became a "studio model" for a "commercial" photograph. By "commercial," he meant only that the photo was by design going to wind up in the stream of commerce -- it was going to be sold for money.

 

And by that definition, plaintiff was right. His photo, his unique likeness, was sold in a limited edition at a gallery for $ Thousand$ per print, principally because his face had distinctive and considerable market appeal. And all this happened (i)without his consent; and (ii)without payment of one thin dime to him, all while DiCorcia and the gallery made big money.

 

As you know from my many comments in these discussions, I believe plaintiff is and was wrong, very wrong, and I'm both pleased and relieved that he lost his case at the trial court level, as I predicted he would. I believe his appeal will fail, too.

 

But when "villains" of the century, or even the decade, the year, the month, or the week are studied, this plaintiff won't even warrant a footnote. :)

I think to want only for yourself and let the rest of the world be damned is an idea that precedes and enables the enactment of evil. I'm looking at it from the POV of The Merchant. Shylock has a pretty damn good case too like the case you stated for Mr. Nussenzweig. It's only because this villain was defeated early that he will not be remembered as you say. We tend to remember those who got away with murder before finally being stopped. Milosevic, Pol Pot, Hitler, Beria ... But the thinking that makes it all possible is closer to the root of evil.

Given my somewaht anarchistic disposition I normally damn the legal profession and the judiciary to the gates of Hell but in this case I'll make an exception, since good sense has prevailed. If this case had succeeded then we would be well on the way to living in a world like that the Taliban tried to impose on people.

I think most of you better be stocking up on your tranquilizers because it wouldn't surprise me if this case or a similar case wins in the appeal process. Photographers may be enamored of their ability to make tons of money off the photogenic or ugly in public but the general public isn't and there is a ragged edge on the rights of publicity and privacy that this case treads upon. Besides, until all the appeals are over, the trial court decision is meaningless.

Craig - Your expectations for this case are no more than that. Certainly not a reason for everyone else to stock up on tranquilizers. How grandiose of you. And whether or not the general public feels tread upon, which I would dispute, is not relevant here, the US Constitution is.

I think those of us that are street photographers see this as great news. People who don't appear to be street photographers (see above) are much more negative. We take what we can get, just like on the street.

"I believe that there is no person in the world that must be protected from pictures." - Sebastiao Salgado, Witness in Our Time: Working Lives of Documentary Photographers, Ken Light.

 

Although Salgado was talking in a documentary sense, the "premise" is the same no matter what the circumstance. He later in that paragraph says...."...to show one person's existance to another...". It doesn't matter if it's a war, or the starving, or the extreme poor, or the extreme rich.......it's a function (and personal freedom) of photograhers everywhere to show the world, the existance of the rest of the world.

http://www.louisville.edu/library/law/brandeis/privacy.html

 

You'll find the roots of privacy law and the exceptions. Particularly as it relates (or related) to photographic developments.

 

It's in issues such as reproductive rights, medical privacy, etc., that challenges have been made that unrestricted "public" photography and publication is intrusive and individual rights can outweigh the asserton that the photography is newsworthy. It's also in reproductive rights and some other areas, that there has been an assertion that there is an implied or reserved constitutional privacy right. This is directly dealing with both privacy and "press" rights.

 

The case in question has only completed the initial trial, that really doesn't solve anything - things are settled when the appeals are finished, not at the initial trial.

 

If you think that the general public is fine with the idea that their pictures can be taken any time, any place, in public, by strangers, you haven't talked to enough non-photographers recently.