Interesting article on street photos (and no, it isn't spam)

[vanderstouw]

http://www.nytimes.com/2006/03/19/arts/ ... yt&emc=rss

THE TEXT FROM THE ARTICLE:

The Theater of the Street, the Subject of the Photograph
By PHILIP GEFTER

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.

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."

[dang]

Great article, and something we need to keep a check on. Thanks!

[marchael]

Sad, but not surprising. I've already seen how our rights to taking photos have diminished in the last few years alone - in/outside shopping centers, outside airports, and even in public, taking photos of sights that many have photographed for years (bridges, subways, buildings, etc.). Makes you wonder where it'll all end. Good article. Thanks.

[rickl52]

Sad, but not surprising. I've already seen how our rights to taking photos have diminished in the last few years alone ...

Interesting article and part of an ongoing, if not heating up debate: just what is privacy?

Marchael, it is true that more and more people and institutions are trying to place restrictions to what and who can be photographed. While to some degree that trend is in response to safety concerns and perhaps a general paranoia, it is also a logical defense to what is seen as a shrinking right to privacy. Cameras are now ubiquitous. There is literally no place on the planet where one would be surprised to find someone collecting images. Even more significant is the the extent of distribution of those images. The digitization of images and the internet has now made it possible for anyone, anywhere on the planet, to view anyone almost anywhere else on the planet in short order. This is a new phenomenon.

When the rules were written this was not the case. Fewer people were collecting images and the distribution of those images was limited to a fraction of those collected. There existed not only the sacred absolute privacy of one's own home but the relative privacy of one's local surroundings. The chances of my image being viewable by people in my own city was tiny, and the chance of being viewed on any larger scale almost impossible.

For example, if someone decided to spend the day on a nude beach in southern california they could make a decision about their own relative privacy. They might feel comfortable revealing their bodies to those around them confident that they enjoyed a sense of annonymity. There was little to no chance of family, friends, coworkers or employers from discovering the activity so they could count on remaining protected. Even if someone at the beach collected their image there was only the smallest chance that the person holding that image would know or pass on the photo to anyone the sunbather would know.

Along comes the digital age when half the people at the beach have cameras in their backpacks and now that same person arrives at the beach with no more control over their relative privacy. There is the very real chance that their images, in all it's naked glory, will be available for viewing in China, France, Nigeria, mom and dad's, and their employer's home computer by later that same day. Relative privacy is gone.

While photographers would like to defend the right to photograph anything and anyone in "public" according to the rules as they've been written, it might be fair to concede those rules were written in another time and place. They may no longer be a fair and balanced set of rules given the technological changes that have occured since the the precedents were created.

I can photograph anyone outside their setting of absolute privacy. The rules say I can distribute that photo via the internet on my Pbase pages. But just because I can is it always fair or right? 'Because I can' do something is legal justification, not a moral one.

Some might see this court battle as just another attempt to restrict or control the rights of photographers and artists, but another view might be it's a small battle in a society's attempt to adapt to change. This one so far has come down on the side of the rules as written. Sooner or later someone will bring a challenge concerning real ramifications of violating one's relative privacy. Then it gets real interesting....

Rick

[abbarich]

... the claimant's claim that the making of a photograph is a violation of the biblical commandment of making graven images is pure nonsense. Witness the thousands of photographs made of Rabbis, Jewish scholars etc, all with their consent. Jewish Law does not prohibit the making of a photograph of a person.