Article on Legality of Street Photography

[vic_.]

Interesting article in NY Times yesterday. An extracted quote:

<p><i>"It's a terrible invasion to me," Mr. Goldberg said. "The last

thing a person has is his own dignity."</i>

<p>

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

_r=1&oref=slogin

<br><br>

March 19, 2006

<br>Art

<br>The Theater of the Street, the Subject of the Photograph

<br>By PHILIP GEFTER

<br><br>

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.

<br><br>

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.

<br><br>

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.

<br><br>

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.

<br><br>

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.

<br><br>

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.

<br><br>

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.

<br><br>

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.

<br><br>

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.

<br><br>

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."

<br><br>

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."

<br><br>

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.

<br><br>

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."

<br><br>

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."

<br><br>

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."

<br><br>

"It's a terrible invasion to me," Mr. Goldberg said. "The last thing

a person has is his own dignity."

<br><br>

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."

[michael s.]

Potentially a significant case.<p>

 

Related post and <a href=http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=00FhJQ>extended discussion here</a>, for those interested.<p>

 

Also, there was an <a href=http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=00FE4j&tag=>earlier discussion of the same case here, when the court's decision was first announced in February</a>.<p>

[lee_carruthers]

This is pathetic. Some guy with far too much money in his wallet is going to hound diCorcia in court until he's broke. It's no wonder the poor rise up and put the rich to death. After all, it doesn't sound like he's been caught picking his nose.

 

The bottom line is a picture won't make a bit of difference to US once we're gone. But, bring out a big pile of old snaps and watch everyone ooohhing and aaahhing about old Uncle Erno or Gramma Julie. Surely we can give up a little bit of "dignity" to show those who follow just how foolish we really were.

[joshchapman]

Food for thought:

In Quebec, Canada one does in fact own ones one likeness, so what diCorcia did would be illigal here. While it may seem like common sense to photographers that what people do in public should be photographable, many people don't see it that way.

[jtdnyc]

As an occasional street photographer, I'm glad the court ruled as it did. Yet, something about this situation leaves me ever so slightly uneasy. I really do see another side to the argument, albeit not the religious argument the plaintiff made.

 

I think it's possible to differentiate what diCorcia did in this case from the great tradition of street photography. As the moderator of the S&D Forum has repeatedly pointed out, not every photograph taken in the street is an example of "street photography," as generally understood. In fact, one pnetter, who has been a frequent contributor to this forum, had a picture deleted from the S&D Forum on the grounds that a portrait he posted, though taken in the street, was not a "street photograph." (Makes me wonder if the lawyer for the plaintiff might have cited that controversy, had he been aware of it.)

 

Similarly, an argument can be made that these are not really street photographs but studio photographs. By setting up studio lighting in the street and trapping people in it, the photographer was essentially impressing people into service as models, especially when the resulting pictures (if the illustration in the Times was representative) were tight headshots rather than images of their street activities.

 

I realize that no one can have a reasonable expectation of privacy for activities performed in the street. But, on the other hand, this guy is not a public figure, and if a photographer is going to make money by selling a tight shot of his face, and not his street activity, I think the legal and moral issues aren't as crystal clear as some people apparently believe.

 

Again, I ultimately agree with the court. I have taken shots like the ones diCorcia has exhibited, minus the flash, and might someday want to exhibit them. I wouldn't want to see my right to do so restricted.

 

But I think having the sensitivity to see the other guy's point of view makes anyone a better artist. And I certainly don't think that resorting to a court of law to resolve a genuine dispute makes someone a villain.

[scott_mcloughlin]

I don't think this is "photographers" vs. "people." There are plenty of non-photographer "people" who believe, or rather, reason that artistic expression of public scenes, including photography, is an essential right that trumps the right of subject that may fall within the scene.

 

Quebec has every right to differ and to deny people this essential right, just as they have every right to be wrong in other matters.

 

Scott

[jtdnyc]

Scott, I absolutely agree that the right to the artistic expression of public scenes should be strongly defended.

 

The question I'm less certain about is whether a tight headshot of a non-public figure (in the legal sense of that term), acquired with studio-type lighting that is used without permission of the subject, or even notice to him, should be considered a "public scene."

 

Suppose the photographer had used "uplighting," also known as "monster lighting," or some other non-documentary technique. To what extent is it a "public scene" if no member of the public who was actually present was able to see that which the film was recording, as the "scene" existed only for the millisecond duration of the flash? Might this then not be the involuntary use of the subjects as, essentially, studio models? What genuine public interest would thus be advanced?

 

I raise this question because I think it's a genuine issue. Even if the better argument is to permit such photography, which is the position the New York court has apparently taken and with which I would probably agree, that doesn't mean that there is no merit to the opposing argument.

[boris c hann]

"Suppose the photographer had used "uplighting," also known as "monster lighting," or

some other non-documentary technique. To what extent is it a "public scene" if no

member of the public who was actually present was able to see that which the film was

recording, as the "scene" existed only for the millisecond duration of the flash?"

 

Why is the "technique" of any relevance at all? Is there an internationally recognized list of

approved "documentary techniques"? For example, Bruce Gilden would certainly fall foul of

your objection to "uplighting". Documentary photography isn't a narrowly defined

discipline, and those who practise it deploy just about every format (from amateur digi

cams to 11x14 sheet film) and technique imaginable.

 

"What genuine public interest would thus be advanced?"

 

There are all kinds of things in life that are perfectly legal but in no way advance the public

interest.

[boris c hann]

This is one of the most entertaining lines: ""It's a terrible invasion to me," Mr. Goldberg

said. "The last thing a person has is his own dignity."" The guy in question is a former

diamond trader - even those with the most cursory knowledge of the history of the

diamond trade will be aware that the profession hardly goes hand in hand with dignity.....

[paulmoore]

"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.."

who was he working for? was this his own project, or assignment?

I think we are not getting the whole picture here. There is a fine line and often blurry line

that divides fine art and commercial, and the line between first admendment press rights

and the right to privacy is even less defined. Commercial entities like the nytimes play

both sides of the field, one hand saying that it is freedom of press, then the next

publishing in a manner that is not journalistic but purely commercial..publishers treat

photographers the same way, "oh this is JUST editorial(low budget), then it is used as a

book cover"

I've been told by publishers that any person in the shot that is recognizable needs to have

a release/consent and then in the contract for the project is the small print, the

photograher takes full responsibility for the content and the liability for aquiring release

forms..etc..

I think if you USE people for financial gain and don't get a release or compensate and you

are not a press photographer then you are playing with fire..live by the sword die by the

sword.

I wonder if I got ahold of random shots from all the cctv cameras in and around london,

made some big prints, I could get a fancy gallery to show them and make a slick

catalogue. I'm sure some art writer would think it a profound and compelling body of

work.

 

I was photographed last night driving on an empty road in middlesex..going 8 mph over

the limit..I feel that my privacy was invaded and it will cost me.

[george_shihanian]

I was glad to see the case thrown out by the judge, but I'm not jumping up and down for joy... because what troubles me is the reasoning behind her decision-

 

"Defendant diCorcia has demonstrated his general reputation as a photographic artist in the international artistic community," she wrote.

 

So I'm certain that if any of us try the same photo shoot, with our lack of a "reputation in the international community" as a "photographic artist", (most of us here anyway) we'd be screwed and the lawsuit would be allowed to proceed.

[stephen_jones4]

What George writes above does seem to follow...

I remember when I was a kid people shouting at me "what you staring at? D'you want a f-ing photograph?". I wonder how long before an excessively fixed gaze will be actionable...

[vic_.]

Here's another article on Drudge (www.drudgereport.com):

 

http://news.independent.co.uk/uk/this_britain/article352607.ece

 

Even the "authorities" are in on it.

[brunom]

It may be that this represnts another example of the errosion of the individual, in modern times?

 

In the UK we have more CCTV cameras than anywhere alse in Europe, possibly more than all of Europe, and I have to say that someone taking yet more photos of an individual, without consent and with the subject having no knowledge of their intended use, could be very irritating to say the least, although in the case cited it seems that greed, given the amount sought, is the real reason for bringing the action against the photographer, and not some other spurious reason.

 

As for Quebec- what happens if you are photographing a famous landmark or building with an, obvious to all, ultra wide angle lens which would include those people standing around?

My guess is that a lot of this has be caused by the Paparazzi and their stalking methods which led to the privacy laws in France.

 

I hope the Nussenzweig case is thrown out at an appeal, if one does in fact take place.

 

Bruno

[keirst]

paul moore wrote <i>"There is a fine line and often blurry line that divides fine art and

commercial..."</i><br><br>

It's my layman's understanding in the US that Commercial art is defined as that used in

advertising for a product and is not fully protected by our First Amendment, while Editorial

art and Fine art are generally defined as fully protected free speech, if the images are

made in a public place, not as commercial products in themselves. Under this system it

seems likely that Mr. Nussenzweig will lose his appeal. Some more of the money he got

from selling common crystalized carbon as something rare (even gem quality diamonds

aren't rare at all) will go to support lawyers, clerks and judges. Unfortunately, he's costing

Mr. di Corcia and his insurance company money too, and probably the insurance company

will have to raise its premiums on other clients, even if di Corcia continues to prevail. The

case really seems like a waste of time and money.

[jtdnyc]

Boris, technique matters because the law is built on people's reasonable expectations. It is reasonable to expect that if you appear in public, people will see you, and some of those people will report having seen you, in words or in pictures. On the other hand, I'm not at all sure that average reasonable person expects to have his appearance altered in a way that he might find disparaging. Artists, including photographers, who want to represent a particular vision have a long and honorable tradition of hiring models and paying them.

 

As I said at the outset, my point isn't that Nussenzweig should prevail; rather, it's that I'm a little surprised that anyone with an artist's sensitivity should be unable to see both sides of the story.

 

Bruno, I think you've hit the nail -- or one of them -- on the head. There has been an erosion of respect for the individual. But I can't agree that Nussenszweig is motivated by greed simply on the basis of his seemingly excessive prayer for damages. I think his goal was to stop diCorcia, not bankrupt him. In any event, such prayers for relief are routine in many fields of litigation nowadays.

[andrew_hull]

"I was photographed last night driving on an empty road in middlesex..going 8 mph over the limit..I feel that my privacy was invaded and it will cost me."

 

I wonder if you feel that your privacy was invaded if it wasn't for the fact that said camera caught you breaking the law and will levy a fine on you? How much of your disdain for this photograph is the fact that you got caught red-handed, breaking the law? If this photograph was simply used in photograph that documented people driving, would you have cared?

[nemeng]

FWIW I've written a detailed article on the legalities of street photography, from a NSW / Australian perspective, on my website at:<p>

 

<a href="http://photorights.4020.net">photorights.4020.net</a><p>

 

Basically the Nussenzweig case would never have got to court here. No Bill of Rights = no Right To Privacy. Furthermore, the mere sale of photographs in Australia, for whatever ridiculous price, is not considered "commercial usage" here.<p>

 

As for the sale of Tunick's nude CCTV stills in the UK - keep in mind there's no prohibition against commercial usage of images without the subject's release in the UK. I think this is the only Western country in the world who does this. Also, don't forget that it's because of "no-permission" CCTV footage that the London bombers were identified so quickly...

[lee_carruthers]

I am much more concerned about my photo being taken by a camera operated by the police/state, and it has nothing to do with getting caught doing something illegal. I covered the G8 Summit in Calgary, Alberta a few years ago. The police had cameras everywhere. Now THAT is an infringement on my privacy! Where those photos go is anyone's guess, and I'll never have the opportunity to see them - privately or in public.

 

How such photos are used and what stories are constructed with them (by suspicious, paranoid people with power) is a much bigger issue for me than one taken by an artist and displayed in public. I think people are getting their priorities mixed up.

[eliot_rosen1]

"I am much more concerned about my photo being taken by a camera operated by the police/state, and it has nothing to do with getting caught doing something illegal. I covered the G8 Summit in Calgary, Alberta a few years ago. The police had cameras everywhere. Now THAT is an infringement on my privacy!"

 

What exactly did the police do that was illegal (in your mind) in trying to protect the leaders of the G8 nations? Perhaps you haven't heard, but there are bad people out there trying to murder Western leaders; and it is the responsibility of the police to make sure this doesn't happen. Apparently, not everyone gets this.

[nemeng]

Last week I was in the crowd waiting for the Queen (Elizabeth II) to emerge from St Andrew's Cathedral (in Sydney) and walk to her car. By amazing luck I managed to position myself at the guard railing, right in front of the parked official Rolls-Royce (about 3m away).<p>

 

I, along with the rest of the crowd, had to wait @ 90 mins for the Queen to do her thing. During all that time I was photographed and video'ed by at least 10 security personnel. From afar. Up close. From either side. Probably from behind too.<p>

 

Guess they were nervous about the solitary bloke in the big hat, with Hasselblad + 4/50 Biogon + monopod, patiently waiting right in front of the Queen's car...<p>

 

Nevermind, I got the shot (+ Prime Minister too) :?)<p>

 

<a href="http://4020.net/unposed/street.shtml#qe2howard">

http://4020.net/unposed/street.shtml#qe2howard</a><p>

 

I couldn't help thinking what mayhem someone else could have caused with a phoney-camera though. The VIPs walked past < 2m away!

[billsr]

I don't do street photography and avoid shooting strangers without permission because I can readily see both sides of this dilemma. I would resent being followed around and photographed by a stranger. I would deeply resent having my likeness published by a stranger without my written permission. If anybody was selling my likeness, I would expect just compensation. So let's say that a photographer has a right to capture my likeness as his right of artistic expression. I will reserve my right to bust him in the chops if he did not get my permission and my right to sue him if he sells my likeness to the public. Best regards, Bill

[michael s.]

<< ... reserve my right to bust him in the chops if he did not get my permission and my right to sue him if he sells my likeness to the public ... >> <p>

 

Of course Bill's kidding. Either that or he's got a very good head start on that legal defense fund. :) <p>

 

I believe the diCorcia case was correctly decided. Keep in mind that it was filed under a New York "right of publicity" statute, a law that prohibits unauthorized use of a person's name or likeness "for advertising purposes or for the purposes of trade." The trial court determined that the photo at issue -- though taken, exhibited, and sold without consent and without payment to the plaintiff -- was not one that fit within the statutory definition. On the contrary, the court determined that the photograph was "art," and though reproduced in limited edition and sold for profit, did not constitute "advertising" or "trade" as those terms had come to be construed under the New York statute. <p>

 

A number of states in the U.S. have similar or related statutes. Forumers might want to <a href=http://www.ncsl.org/programs/lis/privacy/publicity04.htm>take a look here</a> to see if a particular state has such a statute, and if so, what it provides. Other jurisdictions recognize common law privacy rights.<p>

 

Plaintiff is evidently appealing from the summary judgment granted in favor of diCorcia and the gallery. I predict that the appeal will fail as well, and if it produces a written opinion, that will have greater value as precedent in New York.

[billsr]

Yes, Michael, I was mostly kidding (and all serious) in my previous post, though it really expresses my gut feeling, re: intrusive photography. Let me embellish my remarks a bit by asking those of the "street" genre, "how would you/do you feel when you gaze out of your bedroom/ hotel/ motel window and see a neighbor with binoculars looking back at you?" To me it's all the same piece of tail and it's profoundly offensive. So, cling to your legal rights, fellows, but be prepared to do battle! ;<)) Happy hunting, Billy

[michael s.]

I'd draw an important distinction between the street (the quintessential public place) and my hotel room or bedroom where I have an expectation of privacy.

 

And just to be safe, I'd draw the blinds, too. :)