Photographing people without their consent in NY

According to a recent case decided in NYC, an artist has the right

to photograph people on the street and sell the photos without the

consent of the people who are photographed, and this is not a

violation of New York's privacy laws:

 

A dispute between a top photographer and the Orthodox Jew whose

picture he surreptitiously took at Times Square ﾗ then sold 10

prints of at $20,000 to $30,000 each ﾗ turned on the question of

whether the photograph constitutes commerce or art.

 

As commerce, the picture would be subject to the restrictions set

forth in New York's right-to-privacy laws; as art, it would not.

 

 

Note that this case won't necessarily be applicable in other places.

"According to a recent case decided in NYC, an artist has the right to photograph people on the street and sell the photos without the consent of the people who are photographed, and this is not a violation of New York's privacy laws(.)"

 

 

The case you are writing about involves Philip-Lorca diCorcia:

 

 

http://www.gothamist.com/archives/2005/06/26/photographer_sued_for_taking_portrait.php

 

 

That link is the latest information on the suit available- I checked Westlaw's case update service and Westlaw's Nexis-like news service. Please provide a cite or information as to how you know that the case has been resolved in the photographer's favor.

Came from New York Law Journal today.

Requires subscription- DOH!:

 

 

http://www.law.com/jsp/nylj/index.jsp

Safdari - Thanks for this updated information. Don't have access to the NY Law Journal (paid subscribers only), so if you do, let me ask: Am I correct in guessing that the matter was decided either on a motion to dismiss, a motion for judgment on the pleadings, or a summary judgment motion, as opposed to a trial ?

 

Back when this first surfaced, I characterized the lawsuit by the man whose face appeared in the photo as a "dead bang loser." And I was not alone.

It was decided as a motion to dismiss.

Um, I'm a little dubious about this. The New York Law Journal does provide free access to

headlines and short summaries for articles, you only need to be a subscriber to read the

full text. And I can't find anything about a resolution to the diCorcia case there, or

anywhere else.

 

It's also worth noting that the original poster is new to photo.net (Feb 9), and his only

other post besides these two is a simple hi-I'm-new-come-look-at-my-pics message,

although he does have a couple of photos uploaded. Not that new folks can't have good

info, it's just a tad odd combined with the unverifiable reference.

I did see the short headline referring to the disposition of the case when I clicked on the New York Law Journal site earlier. It's no longer there, but I'm certain I saw it.

I also saw the headline, and it's no longer there.

Lets not get silly. Yes, the article was there & linked to the decision itself in PDF. I have it at my office and can send it to y'all on Monday if interested.

 

Incidentally, the decision stated that the line of what is art vs. commerce was interpretted differently in different departments of the court. Considering that the slight distinction of which department you get sued in could mean the difference between being liable for tens of thousands of dollars in damages vs. getting off scott-free, IMHO the conflicting law is truly intolerable, and itself has a chilling effect on free speech.

I suspect the the reason for the suit largely hinged on the amount of money involved in selling ten prints at $20,000 to $30,000 each. Finding a lawyer to sue a lesser known photographer who sold ten prints at $100 each at a sidewalk art fair might be a lot more difficult.

<< ... IMHO the conflicting law is truly intolerable, and itself has a chilling effect on free speech. ... >>

 

Are there decisions under similar circumstances that actually went the other way ? That would indeed create a chilling effect.

 

As I recall, diCorcia rigged a rather sophisticated flash set-up enabling him to photograph pedestrians on the sidewalk in an unusual -- and apparently arti$tically plea$ing fa$hion :)

 

In an earlier discussion, I said that I might reconsider my own views only if diCorcia was required to obtain, but failed to secure, a permit for this mounted flash rig (part of which might've been on a scaffolding or other structure ?) *and* if one of the reasons for the permit requirement was to notify passers-by who'd be walking into studio-type lighting set-ups unaware.

 

I would very much appreciate seeing the court's decision, if there's a convenient way to post it or link it.

 

Thanks again, Safdari.

Photographing people without their consent in NY

 

I've always found passing wind in a public place seems to get a greater response. Some folks seem to get very agitated.

There is an article posted about the courtﾒs decision at <A HREF="http://www.law.com/jsp/article.jsp?id=1139565912319">law.com</A>. The gist of the decision is that art is exempted from the New York misappropriation-of-likeness laws, although the judge noted that ﾓthe problem of sorting out what may or may not legally be 'art' remains a difficult one.ﾔ A key fact to the decision is that the prints were sold and exhibited in galleries with the associated inference that they are fine art. Another issue in the case is whether the statute of limitations had run and thus precluded the plaintiffﾒs claim. The prints were first exhibited in 2001 and the associated statute of limitations period is one year. Defendant argued that he had not discovered until 2005 that the prints had been published and that a ﾓdiscovery ruleﾔ doctrine tolled the running of the statute of limitations until the date he discovered the usage. The judge ruled otherwise but, noting that New Yorkﾒs different appellate departments had ruled inconsistently on this issue, went and ahead and addressed the misappropriation issues. The plaintiffﾒs attorney has stated that the case will be appealed.

Safdari: My apologies. You said where you'd seen it, it wasn't there, I jumped to the

obvious conclusion. Which in this case was dead wrong. Um, uh, welcome to photonet!

 

Since it appears we've got several legal types on this thread, I have a question: As it stands

now, this is only precedent in NY, right? . But since it appears to be taking on a general

legal principle (what constitutes art vs. commerce, based at least partly on the U.S.

Constitution) rather than a specific NY statute, does this mean that it could become a

"larger" precedent if affirmed higher up?

As a trial court opinion, it is not binding on other courts. The basic issue decided by the court is whether the first amendment precludes an award of damages under the New York statutes. If an appellate decision is issued, it too will pertain to the New York statutes. If you want to read a case that considered the status of art under both New York and California statutes, here is an <HREF="http://www.ncac.org/artlaw/op-hoe.html">example</A>.

Roger -- no problem.

The following is not legal advice: this decision is merely a trial court decision and as such its not binding on any other court and has no real precendtial value as such. It is not even binding on other departments of the same trial-level courts. From here, there are two ways it can go -- appeal up to the highest NY state court, or perhaps to the US Supreme Court (highly unlikely). In either situation, since the case involves a NY state-specific statute, the ultimate decision would be binding in NY only. Even a US Supreme Court decision regarding this case would be 'persuasive' rather than binding in other cases arising in other jurisdictions which involve similar statutes, however depending on the sweep of the Supreme Court language it may be MIGHTY persuasive.

So "as an artist", the guy has a right to photograph people & sell the picture without [their] consent. Phillip Lorca di Corcia can certainly <i>prove</i> he is an artist, citing his books, his reviews--and his prices. Where would this leave the amateur photographer, or photography student-does he/she have no such rights because he/she has no buyers? Or received a failing grade in a Street Photography course?

<i> Where would this leave the amateur photographer, or photography student-does he/

she have no such rights because he/she has no buyers? Or received a failing grade in a

Street Photography course?</i>

<br><br>

There's no standard of aristic merit here. The one thing that does appear important is

limited-edition vs. open-edition. And of course, commercial use--including self-

promotion other than for the purpose of selling the image in question--is still as off-

limits as ever.

<br><br>

In any event, probably more important is that for the vast majority of people there's not

remotely enough money involved to make it worth a lawyer's time. The whole reason this

issue went unlitigated for so long was that nobody else is making this kind of dough off of

unreleased street prints.

<br><br>

The only way most of us could run remotely afoul of this is if we got a picture of someone

who had so much money that spending $50K on a lawyer to win a $500 judgement was

worth it to them as revenge.

Safdari and Bert - Thank you.

 

Bert, it looks as though you intended to furnish another link at the end of your 5:39 post, but it did not appear. If it's convenient, I'd appreciate seeing it.

 

Roger - Had he prevailed, I suspect plaintiff would've been seeking a judgment far in excess of the $500 to which you refer. Initial reports were that plaintiff's complaint sought damages of $1.6 million -- not really a meaningful figure since plaintiffs in most jurisdictions can include a "prayer for relief" -- that's the legalism used; believe me it is *not* religious :) -- in any amount.

 

Two other comments. First, the Munger Tolles firm in L.A., referred to in the article as diCorcia's counsel, is very highly regarded.

 

And second, I for one appreciate the Court's acknowledgement of the sincerity of plaintiff's personal feeling that his likeness should not have been displayed and sold in that fashion ... but not quite as much as I appreciate the Court's conclusion that his "distress ... is not redressable in the courts."

<i> Roger - Had he prevailed, I suspect plaintiff would've been seeking a judgment far in

excess of the $500 to which you refer</i>

<br><br>

Right, because diCorcia was selling prints for $10k and had brought the image to the

attention of a huge audience. But for the vast majority of photographers who maybe have

a web page, get some things hung at the fair, and sell a few prints at a coffee shop--the

situation the post I was replying to implied--the award would be peanuts, it's just not

going to be worth suing them.

Three queries, for purposes of discussion:

 

1. Is there a legal distinction between, on the one hand, a work of art in which a member of the public is incidentally or unavoidably present and, on the other, a work of art in which the sole subject is that member of the public? Should there be such a distinction?

 

2. If the subject had been a supermodel whose fee is in the range of tens of thousands of dollars per day rather than an obscure Orthodox Jew, could a photographer who wants to make an artistic portrait of her, but who is unwilling to pay her modeling fee, hide some studio lights in a public place she is known to pass through, snap her -- effectively using her as a model but without paying her -- and then sell multiple copies of her image in galleries as art?

 

3. Assuming there are any damages in any of these scenarios, should the measure be the benefit to the photographer or the damage (if any) to the subject?

 

I'd be interested, especially, in the remarks of our forum legal authorities.

<I>The one thing that does appear important is limited-edition vs. open-edition.</I><P>

 

Roger, is there any precedent to support that notion?

Michael, here is the link to <A HREF="http://www.ncac.org/artlaw/op-hoe.html">Hoepker v Kruger</A>.

 

<p> Jonathan, the law is muddy in this area because there are a lot of variations among the states. The importance of the art issue is that the First Amendment protects artistic expression more than it protects commercial speech. This is why Andy Warhol is free to make prints depicting Marilyn Monroe but poster companies cannot sell "In Memoriam" posters of Elvis Presley without the permission of his estate. With regard to damages, if the person depicted prevails, he or she would be entitled to compensation for his or her damages in all the states that recognize the tort of right to publicity and also to the photographer's profits in some of the states.

Bert, would you have any opinion on open-editioned prints (sold directly by the artist or his/

her gallery) being viewed more commercial vs editioned prints?

 

I can understand how a poster company would be viewed as a commercial operation.