Philip-Lorca diCorcia Lawsuit Dismissed

tim atherton · Feb 16, 2006

Reported earlier: "Philip-Lorca diCorcia is being sued by an Orthodox Jewish man that he photographed in 2001, as part of his Heads series." - as reported here, here, and here.

"A judge has dismissed an Orthodox Jew's lawsuit, finding that a photograph taken of him on a street and sold for hundreds of thousands of dollars is art - not commerce - and therefore is protected by the First Amendment, even though his religion forbids such images." More:

http://www.jmcolberg.com/weblog/archives/001665.html

tim atherton · Feb 16, 2006

Here are a few of the direct links

http://www.boingboing.net/2005/07/01/photographer_sued_by.html

http://www.firstamendmentcenter.org/news.aspx?id=16476

http://www.nycourts.gov/reporter/3dseries/2006/2006_50171.htm

mark · Feb 16, 2006

Good news.

pelerin · Feb 16, 2006

mark said:
Good news.

For who? It is clear that the old man's likeness was used without his consent, that his inclusion in the the photo was not incidental or subsidiary to the main content, and that the photographer actions ended in commercial gain. I think that the decision rests on a very narrow definition of what constitutes "commercial" usage. The example of the Eisenstaedt photo is is a canard, that was reportage. At issue here is not whether you can make photos in public places but rather can you profitably use the likeness of an unwilling or unknowing subject. Sure, the geezer's likeness was not used to sell soap or dairy products, but it was certainly exploited for commercial gain.
Celac.

Foto Ludens · Feb 16, 2006

I agree with Celac. The photograph is, unmistakenly, a head shot taken without the subject's permission. To begin with, this is HIGHLY disrespectful of the gentleman in the photo. The fact that this violates the gentleman's religious beliefs for profit makes this unethical in my view. Trying to justify this action by labeling the print "art" does not work once a print is SOLD (or even just exhibited).

If you want to steal images off of people, do it for yourself. Don't show, not to mention sell, it to others.

Not only does this kind of behaviour humiliate the "subject" of the portrait, but it makes the work of other photographers that much harder to make (we are dealt a very bad reputation).

diCorcia's behaviour should be frowned upon, if nothing else.

André

tim atherton · Feb 16, 2006

I think the court got it right on. And if you read the judgement, there is clear precedent in new york especially setting out the extent of the first amendment rights of artists (which, imo should always be defended vigorously or else they will be quickly eroded) and also what constitutes art - the judges comments about not just for "starving artists" was quite pertinent.

A decision to the contrary would have placed unwarranted limits on many kinds of photography, including the work of winogrand, cartier bresson, friedlander, evans and many others. It would diminish creative work at the expense of legalistic opportunism and a spurious defence of privacy rights that are essentially non-existent.

It's the Hollywood "I want a cut of your profits" syndrome.

It's clear that much of this case came about not just for supposed "religious" reasons (which should anyways perhaps be practiced in private) but also for monetary ones. The case was filed when it was seen how much could be made from the work. A pure money grab.

Thanks the gods for a sensible judge for once

tim atherton · Feb 16, 2006

pelerin said:
Sure, the geezer's likeness was not used to sell soap or dairy products, but it was certainly exploited for commercial gain.
Celac.

as was made clear by the judge in this case, the Courts have consistently and extensively ruled that there is a difference between commercial use and artistic use (even when the latter includes profitablity and things such as advertising or promoting the work). This was one major reason the case was thrown out - the law is quite clear on the latter in the State of New York. And rightly so

I think that the decision rests on a very narrow definition of what constitutes "commercial" usage.

not a narrow definition at all (in many ways quite the opposite) - but a long standing precident that makes a clear and important distinction.

tim atherton · Feb 16, 2006

Andre R. de Avillez said:
Not only does this kind of behaviour humiliate the "subject" of the portrait, but it makes the work of other photographers that much harder to make (we are dealt a very bad reputation).

actually a decision against the photographer would have had a much more chilling effect on photography in many many different ways. One small scenario. Imagine trying to photograph on a street. Everyone would believe they would have a right to some form of recompense from you with threats to sue if you didn't either pay up or pack up your camera - they own their likeness and they want a cut from you. With building owners quickly lining up too if you are going to make a likeness of their buildings - then they want a cut too. You wouldn't even be able to take your camera out without people threatening to sue (this is the US remember).

Might (just might) be okay as long as you stick to rocks and flowers

Foto Ludens · Feb 16, 2006

Tim,

I don't question the legal side of the case. Laws and ethics don't always walk hand in hand (perhaps ideally they should).

The issue (to me) is that diCorcia not only photographed, but took a head shot, without permission. Just taking a photograph without permission (except perhaps on journalism) is disrespectful. A photograph such as the one is question is even more so.

Think of it this way: what diCorcia did probably humiliated the gentleman (so much so that he eventually sued). The fact that diCorcia and others (say, the court) do not share in the gentleman's background beliefs does not excuse diCorcia for doing something that (let's face it) would bother or humiliate most members of our society.

Humiliating a person may not be illegal, but in my view it surely is unethical. diCorcia could have easily refrained from humiliating the man further by pulling such prints from sales, even after the initial transgression has taken place. Of course, the best action would be to respect the gentleman to begin with.

Personally, I have once offended a group of persons by including two little boys in a landscape I shot. Immediately after the first protest (2 seconds after I clicked the shutter) I apologized, and I have NEVER pritned that neg. To me, printing such an image is not worth the pain it can cause on the offended parties. After this incident (on my first experience with documentary work) I have always asked for permission to photograph, except when people are totally unidentifiable.

Sure, it takes a sort of empathy on the part of the photographer to make such a move, and many may disagree with my views on ethics, but having some idea of what humiliation feels like I decide to avoid inflicting it at all times. Furthermore, I wish that others would act in a similar fashion.

André

tim atherton · Feb 16, 2006

Andre, that's fine, but those are your ethics and choices. Really, taking a photograph almost harms anyone.

The man chose to sue because he thought he had the law on his side and most likely thought he could make some money off it. If it offends his religious beliefs to have his photograph taken, then he should probably stay indoors, as no doubt his image is taken dozens if not hundreds of times a day without his permission. The difference being in most of those cases there isn't a pot of money at the end of the rainbow for a successful lawsuit. Apparently having your photograph taken in order to protect the diamond trade somehow doesn't offend such religious beliefs and isn't quite the same kind of graven image that an artist might make. Not exactly the "deep religious conviction" his lawyer tries to claim?

Taking someones photograph without permission doesn't = disrespectful. That is a mistaken assumption (remember, this gentleman apparently didn't feel aggrieved until he knew money was being made from the photograph. Taking of the photograph had absolutely no effect on him whatsoever.

Foto Ludens · Feb 16, 2006

tim said:
...If it offends his religious beliefs to have his photograph taken, then he should probably stay indoors ...

Tim, I really disagree with you here. Are you saying that if I don't want to be insulted I should refrain from all social interaction? That if I don't want to be robbed I should refrain from having possessions (not the case here, but same rationality)?

I take a different stance. It is the insulting party which should refrain from making an insult. The taking of such photographs is an iffy proposition regardless of the religion of the subject (or are you suggesting that diCorcia was oblivious to the potential disagreements from the subjects?)

tim said:
Apparently having your photograph taken in order to protect the diamond trade somehow doesn't offend such religious beliefs ...

Perhaps not, but remember that the target audience is much smaller in that case. I'm sure that the gentleman in question took a photograph for a driver's liscence or passport as well, but he did not publicize either one. There is a degree to which one simply cannot live a religious doctrine to the letter and function in our society, but that does not entirely negate one's religion.

Also, religion aside, I have had my photographs taken on many ocasions, but I'm always bothered when shots are taken without my knowledge. I have a drivers liscence, but that does not warrant diCorcia doing his "art" to me.

tim said:
Taking of the photograph had absolutely no effect on him whatsoever.

Perhaps, perhaps not. But there's a very big chance that it did. Just as you argue that nowadays people will sue for everything, I can argue that it is KNOWN that people will sue for everything, and that this man would not tkae the risk of being ridiculed in court unless he was greatly offended.

This sort of argument can go both ways, can't it?

tim atherton · Feb 17, 2006

Andre R. de Avillez said:
Tim, I really disagree with you here. Are you saying that if I don't want to be insulted I should refrain from all social interaction? That if I don't want to be robbed I should refrain from having possessions (not the case here, but same rationality)?

An absolutely inaccurate analogy.

There is currently no broad right to privacy in a public place (for many good reason) in N America and in many other countries as well. But there are broad rights to freedom of expression, enshrined in most constitutions. In the US, what privacy right there are, are generally locally (State usually) enacted and are limited. Quite limited in many cases and subject to the wider right to freedom of expression. This is also the stance that society as a whole has taken. It may change in the future, but this is the situation now.

However there are laws against robbery, aggressive or threatening behaviour and so on - none of those actions are in any way protected - indeed quite the opposite.

You may feel insulted by having your photograph taken, but taking your photograph is not inherently insulting - it is purely situational to your own psyche and world view (whereas most people would universally view robbery as "threatening to say the least). Many people couldn't care less about having their photograph taken and many others would be quite happy to have it taken - even without their permission. It isn't the taking of the photograph that is the issue. It is how you chose to perceive it. Which is quite different.

I'm sure many Muslim (and possibly some Jewish and other religious groups) are highly offended by the dress of multitudes of women they pass on the street in New York - but, as the saying goes, "that's their problem"

"It is the insulting party which should refrain from making an insult." Taking a photograph without permission is not even close to being universally insulting or disrespectful. As I say - some may find it so, many do not. And to date society as a whole has not taken such a stance nor taken any serious steps to prohibit this (unless you live in France and one or two other places like Quebec).

Finally:
Also, religion aside, I have had my photographs taken on many occasions, but I'm always bothered when shots are taken without my knowledge. I have a drivers licence, but that does not warrant diCorcia doing his "art" to me.

I'd have to ask seriously - why not? The only objection to it are certain internally generated feelings on your part. What actual or even perceived harm would it cause? What damage would it actually, in reality, cause? It would all be merely your own personal perception of it. So why not do the art?

tim atherton · Feb 17, 2006

In all seriousness - the Taliban banned photography and were the first government ever to do so - even photographs of their own leader.

There are aspects of this approach to which this is the logical - if most extreme - conclusion

Elox · Feb 17, 2006

I think I'm with André on this issue. I have several problems here:

1. This was not some random street shoot where people are only half recognizable or engaged in some truly public or newsworthy activity. The shots were carefully arranged by the photographer to take portraits of people without their permission, which he could have asked for, or knowledge.

2. While there may only be thirteen prints, if there is artistic interest, somehow, somewhere they will be exhibited or published. So the idea that the exposure would be minimal is a bit naive.

3. Art for sale may be art but it is also commerce. Good artists ( and some not-so-good) get paid well for their work. Leonardo, Rembrandt, Picasso, Adams, and diCorcia created their art to both fulfill a vision AND get paid. There is nothing wrong with this, but it is still commerce. Making one for yourself isn't.

4. Maybe my take is different, being raised in a conservative family in a conservative area, but I find this just plain rude. I doubt I would have sued, but I would have been very tempted to knock on the photographers door and introduce my fist to his nose.

pelerin · Feb 17, 2006

tim said:
I think the court got it right on. And if you read the judgement, there is clear precedent in new york especially setting out the extent of the first amendment rights of artists (which, imo should always be defended vigorously or else they will be quickly eroded) and also what constitutes art - the judges comments about not just for "starving artists" was quite pertinent.

A decision to the contrary would have placed unwarranted limits on many kinds of photography, including the work of winogrand, cartier bresson, friedlander, evans and many others. It would diminish creative work at the expense of legalistic opportunism and a spurious defence of privacy rights that are essentially non-existent.

It's the Hollywood "I want a cut of your profits" syndrome.

It's clear that much of this case came about not just for supposed "religious" reasons (which should anyways perhaps be practiced in private) but also for monetary ones. The case was filed when it was seen how much could be made from the work. A pure money grab.

Thanks the gods for a sensible judge for once

Tim,
I read the posted excerpts of the judgement and I think I follow the argument. I just don't agree with it. As to any "clarity" that the plaintiff's motivation was a money grab... I have seen nothing supporting that. I suppose that I had the same suspicion though, i.e., they saw the picture, found out how much money was involved and went looking for their cut. Perhaps you could direct me to some hard evidence supporting this contention.

I don't see why they don't deserve cut though. The photographer make an image of the man without his consent, put it on public display and sold it for a handsome some of money. The person in question was the sole subject of the picture, not an incidental part of its content. I don't see that it follows that in order to foster creative photography we need to set "artists" apart as protected class of individuals and allow them to treat their subjects with less respect than commercial photographers. There may be a clear precedent that allows such exploitation in previous decisons handed down by New York courts. I see that as resting on a unnecessarily narrow interpretation of commercial exploitation. Luckily our system of government allows for the ability to pass new laws and fix problems we have inherited from previous legislation and the court's interpretation of it. I agree with you that many findings in current law are based on the discovery of an illusory "right to privacy" within the constitution. However, allowing a picture to be made and dividing the profits that result from its sale are not intrinsically related.
Celac.

Sparky · Feb 17, 2006

it seems to me that the "gentleman"'s "likeness" didn't have much to do with the selling of the photo. The artist has sold MANY others before this one - and it seems that he managed to do that WITHOUT using this guy's "likeness". Thus, the mug was interchangeable - and his complaint rendered impotent. easy.

If you're going to start demanding that people on the street get royalties - then how far behind can be having to PAY to photograph the brooklyn bridge, or the Rocky Mountains?? Let's try to live in a Civilization here...

tim atherton · Feb 17, 2006

pelerin said:
I don't see why they don't deserve cut though. The photographer make an image of the man without his consent, put it on public display and sold it for a handsome some of money. The person in question was the sole subject of the picture, not an incidental part of its content. I don't see that it follows that in order to foster creative photography we need to set "artists" apart as protected class of individuals and allow them to treat their subjects with less respect than commercial photographers. There may be a clear precedent that allows such exploitation in previous decisons handed down by New York courts. I see that as resting on a unnecessarily narrow interpretation of commercial exploitation. Luckily our system of government allows for the ability to pass new laws and fix problems we have inherited from previous legislation and the court's interpretation of it. I agree with you that many findings in current law are based on the discovery of an illusory "right to privacy" within the constitution. However, allowing a picture to be made and dividing the profits that result from its sale are not intrinsically related.
Celac.

Presumably then you would agree that the US should also introduce a Right Of The Artist law along side copyright law (as some other countries do) whereby the artists also gets a cut of the prifits when there work is resold at auction etc for greater and greater profits - that way the artist also benefits along with the dealers and buyers and sellers. That surely would also be a good new law to pass?

Many of the above comments seem based not on any right to privacy or a feeling of being wronged, but rather some kind of inherrent right to get a cut of something?
I'd also agree that it was the artists skill, vision and repution as much as, if not more than, the subjects particualr "face" which makes the work and series successful.

I guess the essence of it comes down to this - if you are out in public, then it is just that - public - you give up a large degree of privacy when you leave your home and you go out of your front door.

blansky · Feb 17, 2006

I agree with tim and the decision.

As a photographer, I should have the right to use my camera to record anything. If I'm in public, I also should be able to exercise those rights except for cases of my trespassing or breaking the law.

The subjects side of the equation is not my concern. If he is having a bad hair day, an argument with his wife, obscure religions beliefs, expressing grief, whatever, he is still in public and I have a right to take his picture.

Part of photography is capturing the human condition. Just because you have a press pass does not mean that you are the only one able to photograph that condition. Some of our most powerful pictures of the human condition may not represent someone as they wish to be represented. Migrant mother, girl escaping napalm, ...add your list, were all captured in public and are great examples of the power of a photograph.

If the photographer makes money off this work it is no different than the photographers of the above photographs being paid by their publishers. As long as the work was not sold for "commercial" purposes (advertising) then the subject should have no claim.

Any other court decision would affect the lives of photographers in very negative ways.

On another thread we have discussed subjects that photographers simply would not shoot. In my opinion, any photographer has that choice, but I will submit that the great photographers, would shoot anything of interest, that presents itself before him. He may or may not choose to eventually print it, but he should never turn away.

Michael

WarEaglemtn · Feb 17, 2006

"but I'm always bothered when shots are taken without my knowledge."

So have you complained to your various government entities? They have cameras set up in many places to photograph people, intersections and venues from stadiums to airports. Start with them.

Foto Ludens · Feb 17, 2006

WarEaglemtn,

I cannot do that for many reasons, but yes, it bothers me. If some day such photographs are publicized, I might be offended and do something (which nowadays amounts to suing; for what other legal recourse do we have?)

Michael,

Migrant mother was probably taken with consent. It was not the only photo taken (there were 3 or 4), which suggests that the subject KNEW what was going on and let it go on. The napalm girl was a case of journalism, wasn't it?
If a photographer wants to portray the human condition with a head shot, why not ask that person for permission? I do that, and while some people turn me away, the shots I do end up with are worth while. If a photographer really is so concerned with the human condition, he/she should be equally concerned with respecting the human beings photographed.

and Tim (sorry, I worked backwards here),

The "internally generated feelings" are actually a very big deal. Its how we feel humiliated, and how we decide if we are victims of cruelty or not. You don't need to physically harm me to have done damage to me. The fact that different people will have different responses to one's actions does not warrant one to simply ignore the possible outcomes, but rather to be more careful about causing harm to others. I realize that I'm not offering you any rationality for doing so (other than being cruel is bad and we should not do it).

joeyk49 · Feb 17, 2006

I think tim and blansky brought up good points.

While I didn't read all of the articles pertaining to the case, I didn't see mention of the gentleman approaching the photographer at the time of the shot and raising an objection. Lights, camera, action, but no response from the subject. (If there is evidence to the contrary, please advise.) Only when he found out that his image was being sold AND fetching a good price, did he decide to take issue. I begin to sense that a desire for a piece of the profit may have had played a bit of a role in his civil action.

I believe that public is PUBLIC and private is PRIVATE. If you go out in public, you have little expectation of privacy and can be spoken to, seranaded, looked at, laughed at, pitied and yes, photographed. If you remain in private, you have a very high expectation of privacy and a right to be left alone.

The issue of celebrities and papparazzi runs parallel to this issue. The subject knows that when he/she goes out in public, there will be a photog trying to snag a shot. Celebs go to great lengths to avoid this, but the burden is on them. When a photographer violates the subject's right to privacy on private property, there should be hell to pay!

The ethical issue of photographing someone that does not wish to be, even clearly objects, may touch this one, but is definitely separate.

Foto Ludens · Feb 17, 2006

Sparky said:
it seems to me that the "gentleman"'s "likeness" didn't have much to do with the selling of the photo. The artist has sold MANY others before this one - and it seems that he managed to do that WITHOUT using this guy's "likeness". Thus, the mug was interchangeable - and his complaint rendered impotent. easy.

And yet this particular mug sold for incredible amounts of money, and offended the subject. If the mug is interchangeable, why not photograph only those that let you do it, as opposed to hiding from the subjects and firing the camera as they walk by?

blansky · Feb 17, 2006

Andre R. de Avillez said:
The napalm girl was a case of journalism, wasn't it?

What does a "case of journalism" mean?

What higher calling is journalism that any other form of legal photography.

As a photographer I have a right to record to human condition. I have no obligation to respect your feelings. You are discussing manners, not rights.

The arts are not about manners.

Michael

tim atherton · Feb 17, 2006

Andre R. de Avillez said:
Migrant mother was probably taken with consent. It was not the only photo taken (there were 3 or 4), which suggests that the subject KNEW what was going on and let it go on.

Migrant Mother was a propaganda photograph. Government photographer turns up (probably with big car and maybe driver, possiblly with other officials or not - it's a while since i read the details) to photograph a displaced person in what I think was a resettlement camp. Yes she knew what was going on - did she have a choice? Could she have said no? Did she really give consent?

I still happen to think it is a great photograph though - because in the end all that other stuff really doesn't matter that much. Good manners rarely makes good art.

As for press photography - what is it that somehow makes that okay without permission - in often the worst moment of someones life?

Foto Ludens · Feb 17, 2006

Michael,

What I mean by photojournalism is photography more concerned with events than specific people. You're right in questioning why one is higher legally than another, but recall that I'm not questioning the legal side of this, but the ethical (what you call manners). I'm not questioning what one should do to guarantee conformity to the law, but what one ought to do in order to act in the best way possible. That, and the questioning of what the goal is, constitues ethics, and since this is in the ethics forum I believe that I'm not out of bounds.

Tim, I'm not familiar with the details, and if this is how it went on it should be frowned upon as well.

I go back to an earlier point: If you are so concerned with the human condition, shouldn't you respect the human beings you photograph?

Philip-Lorca diCorcia Lawsuit Dismissed

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