Philip-Lorca diCorcia Sued
Philip-Lorca diCorcia is being sued by an Orthodox Jewish man that he photographed in 2001, as part of his Heads series:
"DiCorcia rigged strobe lights to scaffolding and trained his lens on an "X" he taped to the sidewalk. From 20 feet away, he took shots of Nussenzweig and thousands of other unsuspecting subjects. Later that year, diCorcia exhibited this image under the title "#13" at a Pace Wildenstein gallery show called "Heads" in Chelsea. The photographer said multiple prints of Nussenzweig's picture sold for about $20,000 each. The picture also was published in "Heads," a book that sold several thousand copies, diCorcia said.NY Post story.
Now Nussenzweig, a retired diamond merchant from New Jersey, is snapping back at diCorcia — and at the right of photographers to secretly grab pictures on the street and sell them — by suing him, Pace Wildenstein, publisher Pace/MacGill and unnamed distributors and sellers of the image and the book.
"We claim that to take someone's picture without their consent is bad enough," said Jay Goldberg, Nussenzweig's lawyer. "But to then hang the picture in galleries, put it in books and sell it around the city without telling the person or obtaining permission is unfair and outrageous."
Best title blogged: Philip-Lorca diCourtroom
Gothamist: Photographer Sued for Taking Portrait
OK, I just like saying Philip-Lorca diCorcia. Say it ten times, slowly. Now try it with an outrageous accent. Now try it while raising your arm like a Shakespearean actor. Fun, right?
78 Comments:
....i have worked as a photographer for over 25 years....taken images of people all over america.i have sold images of people in public places.....and assumed i was protected by the laws of the land,as the subjects were on public property...could i now be sued for photographs that were published in text books for high school kids?....i think not.....bullshit.
When you're walking down a public street, you have no "reasonable expectation of privacy,' in legalese. You can be observed, photograqphed, followed, whatever. Unless your municipality has a specific rule against it, it's even legal to take pix up ladies' skirts. Tough luck. I can undertand being miffed that someone has made 20,000 diollars off of your image without cutting you in, but theere doesn't seem to be legal basis established for his claim.
Something tells me that both of you are mistaken. I really, really doubt that you can sell other people's portraits without their permission.
I think the law states that you can take photographs of people as long as they are in a public place. However, commercial use of the work is not allowed without explicit consent from the subject.
This seems to be the general consensus on the photography sites I read while checking out the law.
I see both sides of this issue. If you are a stock photographer and take somebody's image and then sell the image, you need permission. Ditto if you are using an image for an advertisement - recall the guy whose image was used on a coffee can (can't recall which brand - but one of the biggies) got a settlement for some huge amount of money (tens of millions?)- because they didn't get a release.
The difference is this is "art" photography - but when making a film (also "art") you need permission. And there is still a bunch of money being made off the man's image with no permission.
In the US, there may be a difference between commercial use of your likeness and non-commercial likeness (IANAL). However, in France, there is no such distinction, where you have the right to your own image regardless of whether it's for commercial or noncommercial use.
This means that in many cases if it looks like you're taking pictures of Parisians on the street pretending to be Cartier-Bresson, they can and will stop you very aggressively, even though you're just satisfying your natural urge to take snapshots.
Interesting first two comments. Empathy may be all it takes to understand where this guy is coming from. Hey, his mug is in many books. Maybe he doesn't want that. Well, he shouldn't have to have that. Don't you think?
Seems pretty simple - but then again, it does bring up a lot of other tangental issues.
Guys, he is being sued by a Jewish Diamond dealer, I think we all know what this is about... money!
from my understanding of US law, you have no expectation of privacy when you are in public unless there is a law or legal request specifically stating "no photography allowed", etc...
case in point: paparazzi make their living taking photos of "celebrities", and selling them for amazing amounts of money without their permission... when paparazzi obtain their shots through illegal means, they are punished. more often than not, the star, the enquirer, etc, pay well...
This is getting a bit ridiculous now. So that means all my photos of friends etc without unknown at the back isn't allowed now? Or I am not allowed to take random pictures of people?
America.. Suing the pants of anything. What next? Suing a pebble for being in your way?
I am pretty sure that since it was in a public place and in the public's view that the photographer will be found in the right. I am a photography student and this comes up at least every month in class discussions. I think the main distinction is that he isn't using the image in an advertisement or label to sell a product, but is selling his art instead. People get crazy like that though, a professor of mine once got confronted about paying somone likeness rights over photographing the guys dog on a boardwalk.
Folks, this is nothing new.
Talk to any photographer that takes photos of people for a living, and you will find they are very aware of a thing called a "model release form."
There's a reason: it's a well established legal precedent that you can be sued for using someone's likeness in a commercial work without their permission. DiCorcia is in trouble: photogs. have been sued out of business by making such mistakes.
I have long wondered how paparazzi make their living legally, too. My guess is it takes a lawsuit to get any damages, and most stars think it is better not to give them the publicity, but that's just a guess.
Actually, now that I think about it, it's more likely that Paparazzi get the news exception. News reporting is not required to have a release, and the work can still be for sale.
twenty thousand dollars?
The difference between Paparazzi taking pictures of celebs on the street selling them and you taking pictures of your neighbor Joe on his sidewalk and selling it, is that as a celebrity you are a 'public figure' and have lost the right to protect your image. Almost anything you do is newsworthy. The gossip rags make a fine living at this. Joe, on the otherhand, is not a public figure, him standing on the sidewalk is not news (him involved in an accident or being beaten by a security guard, is news however), and you can be sued by Joe and will lose.
Now... when you introduce the element of art and artistic value you're entering another arena altogether. I do think the standard is to get a release if you ever plan to publish or sell. But I don't think that's a legal standard, just an ethical one. (This is all US legal system, btw. YMMV.)
Btw, the standard is to take pictures first, get releases later. Yes you risk someone saying no or not being able to track them down, but its better than not getting the photo.
This will blow over. As someone said, this is exactly what paparazzi do: they obtain photos in public, and sell them without permission, sometimes hiding in trees or behind bushes to get the shot.
I think this guy is out of luck. Consider the papparazzi. They constantly take photos of celebrities against their will and sell them for publication to magaines like "US". Believe me, if Tom Cruise can't sue to stop this behaviour, an old hassidic dude isn't going to be able to either.
Sarah hit it on the head. There's no reasonable expectation of privacy. The very reason paparazzi are able to take these shots, or for that matter, more legitamite news photographers is because of this.
This guy is most likely looking for a settlement, but in terms of a ruling in his favor... I believe that this particular legal case is a dead horse that requires no more beating. It would likely be thrown out of court.
yes, the main issue here is the actual selling of the image. if you are in public anyone can take your picture and it's legal. celebrity or not. here's a good reference on photographer's rights:
http://www.krages.com/phoright.htm
TAKE, yes. SELL, no. There is a difference.
Re: Kirk Wylie's comment, isn't that just normal behaviour for Parisiens (i.e. aggressive rude and arrogant?) Not that I'd necessarily expect Londoners (where I live) to behave very differently.
What a walking stereotype.
Anyone for a pound of flesh?
Not too long ago, one of the "Girls Gone Wild" "models" sued the company because it turns out she was on 17 at the time she went topless for the video.
One defense was that, on her release form, she had claimed to be 18.
Obviously she was in a public place, but the company involved still got a release.
Why would they do that if one wasn't needed? Was it "just in case"? [shrug] Dunno, but obviously being out in public is not a complete defense, or some shooters don't think it is.
commercial work requires a release form from the model. that's why you see people pixelatted out in shows like cops or the real world. those people didn't sign release forms.
editorial work (or news work) does not require a release form.
this case will determine where "art" photography lies, in the realm of commerical or editorial.
i really hope this doesn't come to a settlement. i would love to see this play out in court
Bert Krages' "Photographer's Right" is good reading.
http://www.krages.com/phoright.htm
You do not need a release for editorial usage (newspapers, magazines, etc.).
You do need a release for commercial use (advertising, etc.)
Fine art is a gray area, but generally you do not need a release. If Lorca diCorcia has a decent lawyer he will win.
Yikes. Lots of speculation, which is fine. It becomes dangerous, however, when speculation and empathy (for either the photog or the 'model') comes out as bold statements of law.
IAAL, and I'm afraid I have to say that the best succinct answer as to whether a photog can sell pics taken in public places is "it depends."
First of all, the standard of a "reaonable expectation of privacy" is misused a bit here, but remember that all privacy rights (usually limiting government behavior) are on a continuum: you don't expect your face to be private, but your undies certainly are--upskirt photos are prohibited in every jurisdiction I'm aware of.
The really complicated part is the commercialization of someone's image. State laws vary widely as to who can make money off someone else's image, but a previous poster was right that it usually turns on whether the image suggests the person supports or endorses a product. That is, you can take a picture of Tom Cruise out at a press junket, but you certainly can't photoshop him holding a Coca-Cola (without his permission).
The best comments so far have pointed out that this probably has very little to do with the law, and a lot to do with the hopes of getting a settlement offer; remember, winning a lawsuit costs a lot of money too.
Papparazzi are able to take photographs w/o release forms b/c their subject matter--actors, politicians, etc--are public figures to begin with. In pursuing that career choice, stars have waived their rights to privacy.
This man is not a public figure & has not waived those rights. If the shot was a one-off journalistic piece, it'd be different. If it were a shot of dozens of people, where one face blends into the next, it'd be different. This is a portrait of one person.
Now that diCorcia's making bucks, and big bucks, off these portraits; the rabbi deserves back-pay.
Like Teece said, there's a standard model release form.
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Imagine this was an ATM cam, taking photos of ATM users, and the bank was culling the "Best of" shots to sell for a profit.
Would you be ok with that?
This guy is not composing artworks. He placed a static camera in a public place, and culls the "Best of" photos to SELl for a PROFIT. It is barely art. The draw of this particular image has almost nothing to do with any creativity of the photographer...it has everything to do with the face of the subject.
To profit from the likeness of another without consideration or recompense is indefensible...particularly when there is no actual WORK being done by the artist beyond hanging up a camera and picking the "good ones".
Despicable that it has had to go to litigation.
Kyle's right,
If the photographer loses he will be open to lawsuits from ALL of his subjects. Translation: bankruptcy.
Model releases must be signed which is exactly why this type of candid photographic art is difficult to do.
Not easy to photograph strangers on the street, then flag them down and get them to sign a release on the spot.
I wonder if Diane Arbus had her street people sign releases?
What the photographer did is perfectly legal. In public you can be photographed and the photo can be sold as long as its not used for Commercial(advertising,promotion, etc) reasons. Yes he hung the photos in a gallery, yes he put the photo in a book... that is all considered editorial use which is completely legal without the subjects consent.
The photographer is completely in the right, but knowing the legal system today gives diCoria a good chance to lose
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It doesn't matter whether or not you think it is good art or not. He is not making an advertisement or a label with the image. Taking photos of random people on the street is not a new idea. I am fairly sure this has been in court before. For this kind of work you do not need a model release form, whenever I take photos of people I normally ask if its ok because I don't want a confrontation, but its just a courtesy on my part. It doesn't matter what you think ethically the photographer should've done, if you're in public view then you have very little privacy as far as getting your picture taken.
People are on a public street, or any other public setting can be photographed. That's why its called being in public.
The reason commercial use is different is that when you are in advertising it is assumed you are endorsing a product or service. That's why you need a release - the model says that its okay that I pimp the product. In art he is the subject, in advertising he is the pitchman. That's the difference.
Now, while the photographs are gorgeous, I think is kinda lame to snatch photographs in the manner that he did. I'm sure he has some artistic intent behind it, capturing people while they're going through their day, blah, blah, blah. I don't have to like his stuff though, that's art. As Americans, we agree to at least tolerate one another when we go out into the world. This includes buttinski photographers. His subject doesn't have to like it, but if he wants to make sure nobody photographs him, he'd better get used to in-home delivery of everything.
Rob
I guess it all comes down to the definition of commercial use and whether the photographer's use fits that definition.
Anyone have a good definition (with a reference!) of commercial use and can post it? There is already lots of speculation in these comments, I'd like to know what the law actually says.
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there was an article a few months back in PDN on the rights of an individual and the expectation of privacy as it relates to being photographed and commercial use of images....now i can't remember if it was pdn or picture magazine...i clipped the article and will try to find it and summarize what was there...i do recall that the article mentioned that the laws surrounding this/these issues often varied by locale and/or state....and the article made distinctions between the use of an image for editorial purposes vs. the use of a person's image for commercial purposes....from what i recall the other factor that the article got into was whether the person's likeness was incidental to the image ie. a photo of a stair outside a building that the person just happened to be walking up vs. what could be called a portrait of the person, where it is clear that they indeed are the subject of the picture....for the person who made the comment about celebrities, the laws here in the u.s generally conclude that a celebrity and public persons do not have the reasonable expectation to the same privacy that john/jane doe does... i will look for the article and post the info asap...
Here is some interesting reading on the subject. It outlines the grey areas well. Not yet sure where this particular case falls:
Dan Heller on model release
Boris
As someone mentioned earlier, it seems to come down to the definition of whether or not the published work constituted art.
This site explains why this is not necessarily a straightforward issue.
boris
The link I just posted above gives a really good discussion on where the boundaries lie. Not only is advertising use an issue, but any association with a message (i.e. commercial or political, etc) is tricky.
Boris, your link above is very helpful. I think one quote from the article sums this all up. "While art exhibits are exempt from requiring a release from subjects that happen to be portrayed, an exception may apply if the exhibit were displayed in, or underwritten by, an organization that may trigger the need for a release" The book is an art exhibit. The photograph doesn't have a political message or really any other message from what I can tell. The series is just a bunch of photographs of people in Times Square. For it to be considered commercial use it has to endorse a product, which it doesn't do. But according to a couple sites privacy laws vary somewhat state to state and so far I have been unable to find where New York stands.
I'm a well-adjusted person who's also a bit of a privacy nut-- I don't particularly like being photographed, and I don't want my likeness to be distributed to people whom I don't know. It seems to me that people should have this right, and if not, I expect that in the near future, face-concealing clothing will start becoming more popular in public places.
This photographer strikes me as selfish, exploitative, and cowardly. He's selling the "authenticity" of his subjects (something that hack artists often find fascinating), while being completely detached himself. He never bothered to ask his subjects how they feel about what he's doing, introduce himself to them, or otherwise acknowledge them as human beings. They're like video-game characters to him, shot from afar, in order to raise his cultural high-score.
...or maybe it's all just a knowing parody-critique of being soulless and opportunistic.
@richard
That is my reading of this text as well. Notice that the issue again becomes fuzzy if the photo in question is on the cover of the book, since this is again a "commercial" use (or whatever you want to call it).
Not at all straightforward.
In any case, it seems somewhat naive of the photographer to not have obtained permission from the subject, regardless of whether or not he has the right to publish without such permission.
I'm not entirely sure that I agree with the law morally on this. I'll have to think about that!
Boris
Candid & hidden camera TV shows all require that participants sign a waiver if they're going to use their likeness. Candid Camera, Boiling Point, Taxicab Confessions.
I don't see this as being any different.
diCorcia easily could have approached the subjects after the picture was taken, gotten their sign-off & still maintained the integrity of the project.
Difference is with TV, not only is one dealing with a swarm of lawyers intent on not getting fired over anything such as a phone complaint, but TV programs exist to sell commercial air time. Quite a difference here than exhibiting work in a gallery.
If this guy does win his suit, it opens up the whole history of photography to litigation. Think Robert Frank, Garry Winogrand, Lee Friedlander, Diane Arbus, the entire Magnum Photo Agency, etc... Some photographers do model releases, others do not, some feel even releases are not legal and binding contracts.
For more information on the legal issues of photography in public spaces take a look at Bert P. Krages informative website here
I think P-L's own comment on this issue in the post is relevant:
"'It is a fundamental right, and I will defend it,' he said. 'I consider myself at the end of a long line of photographers who have done what is now being described as a malicious criminal act.'"
P-L's work has addressed these particular subjects--the anonymity of the streetspace and the commercial, exploitative nature of photography before. He did another series of wider street shots, with many/several people in them, in cities all over the world.
And in one of his earliest projects, he took the money from an NEA grant and paid Santa Monica Blvd hustlers their going rate to pose in his staged images. Their prices/fees were included in the title.
With regards to what Brian said:
The photographers you mentioned photographed their subjects at a distance from which the subjects knew they were getting photographed. They had the option to refuse to be photographed. Even if a release wasn't signed, consent is implicit by allowing yourself to be photographed.
This man had no choice.
Secondly, the link you provided is interesting & informative, but not helpful in this situation. It's not the picture taking that's at issue, it's what you do with the picture.
This is big time BS. If the mans face is not public domain have him keep it in a bag or at home. Whats next erase your memory or being sued for looking at people.
That means people that sell books with famous quotes should also be sued for repeating what others have said.
He should feel honored that his mug ended up in print. The photographer should sue him and claim that if he was female the book sales might have been double.
In regards to what 'Anonymous' said, the people in the photographs of Garry Winogrand, Robert Frank, even some of Diane Arbus' work were not always complicit in the making of the photograph. Also look at the work of Beat Streuli, Leon Levinstein, Gus Powell. Some of the ealiest 'street photographs' were done by Paul Strand at the turn of the century (20th) in which he put a false lens on his camera so as to make it seem as if he was photographing in a different direction. Also think of Walker Evans' famous series done with a camera hidden in his coat on the NYC subway in the 1940's. These images enrich our culture, provide a historical interpretation of how we live our lives.
'Allowing oneself to be photographed' simply by acknowledging or even being aware that a photographer is present, is a very difficult thing to prove.
As for the Bert Krages link, I provided it, as it seems the real issue may be photographing in a public space. Perhaps it's clearer here.
A photographer should be aware of the need for a “subject release form” and use it. It is standard procedere for just such a case. Philip-Lorca deCorcia took risks and will have to play by the game rules, just as everyone else does.
The fact that the gentleman in question is a former diamond trader has nothing to do with it, nor does the stature of Mr. diCorcia.
An image is worth money. Just ask Michael Jordan, or Paris Hilton.
This will probably secure a firmer interpretation of the use of candid photogrpahy. For isntance when someone hangs the cellphone photo of you in a gallery and that image is purchased.
Lots of lawyers out today...
I don't know who has the legal high ground, but it's pretty obvious who has the moral high ground. diCorcia and all the people whining about a photographer's rights can suck a fat one. Why should someone else be allowed to profit from a person's image without compensating them, or at the very least, getting their permission?
You say, if you don't want your face seen, don't show your face. I say, if you don't want your ass beat, don't make money off any pictures you take of me without cutting me in. Unfortunately, ass beatings are definitely illegal, so a lawsuit would have to do...
"I don't know who has the legal high ground, but it's pretty obvious who has the moral high ground. diCorcia and all the people whining about a photographer's rights can suck a fat one. Why should someone else be allowed to profit from a person's image without compensating them, or at the very least, getting their permission?"
The not-very-funny thing is that the same can be said about news agencies and newspapers who make a LOT of money with the pictures they use in their publications as well........... Yes I know that news companies seem to have special 'rights' but if you consider all this from just a STRICTLY monetary perspective.........
And when it comes to THIS case, it's NOT all about money, but about intent.
And a lawsuit would fail too because this doesn't qualify as commercial use. It's art, wether you like it or not, and if printed in a cofee-table book (one that doesn't advertise for something else) it becomes editorial art, and all this in the US is protected by the first amendment. This is a sraight shot of someone; with no underlying message or endorsement, and that person would have grounds to complain if it pictured him in a degrading or compromising position or act, and that's not the case (by the way, this is also probably the reason why TV shows ask the consent of people after they have been scammed, because they were shown under a stupid light). There are laws protecting everybody, and that also includes artists and photographers, and be glad those laws exist.
If a coffee table book is still considered art, what about t-shirts or coffee mugs or mouse pads? Where do you draw the line?
Interesting arguements.
I'm pretty sure that if any of us discovered some guy was selling photos of us for $20k a pop, we'd be doing the same thing.
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putting legal responsibilities aside, i don't see this rabbi or anyone else, in that matter, suing an artist for selling their photo if it won prize in local photo exhibition for 100 bucks instead of $20000 at an art gallery. well perhaps rabbi can even think of that.
as i type, i've started to wonder, is being rabbi only religous status that carry the right to have a secondary job, which more often than so seem to be diamond dealer? because i can't think of any other religous position...
i've been managing a cheap motel, owned by my father, for the last two and half years. when i started working, i discovered a wonderful stack of polaroid pictures of various people who had stayed at the motel, but who didn't have proper picture identification. while working, i also have taken quite a number of these polaroid pictures. all together i have about 200-300 photos.
my time at the motel is coming to an end, and i wanted to publish a fine art type of photo book with these images. i was wondering about the legalities of this if anyone knew. or possibly where i could further look into the legalities of publishing these photos without the permission of the people in the photos.
This has been an enormous (and enormously interesting) discussion on the legal issues, but it's completely ignored something important: the human side.
I don't think the subject of that photo is suing because he smells greenbacks. I think he simply doesn't like being photographed. That's not a weird reaction. Anyone with more than ten friends certainly knows somebody who "oddly enough" is always in the next room when someone at the party pulls out a camera. Or, darn the luck, they're always facing in the opposite direction.
If simply being in a picture that will only be seen by family and friends is a horrifying prospect, can you just imagine how they'd react to learning that your picture is now in thousands of books, and enormous reproductions are now hanging in strangers houses?
Oh, and the guy who took that photo without your permission is making $20,000 a pop from the thing.
Which is not to say that the man necessarily should win his lawsuit. But it's not hard to see his point. Or understand his response.
And to anyone who compares this photo to the works of Cartier-Bresson: I didn't know HCB took passport photos!
If you want some more evidence, look at Walker Evans' subway photos, or Lee Friedlander's photos. This practice has a long, rich history going back to a time when the people getting photographed were not even entirely aware what a "photograph" was.
The problem with ethically condeming a photographer for taking a public portrait such as this is that you are putting a severe limit on art, when art isn't purely a commercial enterprise. Sure you may or may not like this one photographer's work but the ruling alot of you seem to want to make here would make a giant chunk of photography's long history illegal, and severely limit the possibilities and creativity of future artists. As a photographer, I'm very glad I don't have to be constantly thinking about whether or not I'm going to get sued for taking this or that picture. Sure, if I'm working in advertising or a stock photography assignment I'm going to be aware of such things. But art is hard enough without having to carry around a giant binder of legal forms with me. A dedicated street photographer can take 400 photographs in one days work sometimes, and use only a few of those. Do you really expect him to keep track of 400+ consent forms ranging from model release forms, to property rights waivers and then explaining to every person that appears in the photographs their legal rights and getting them to sign a form? Its utterly ridiculous and a ruling against Mr. diCorcia will eliminate street photography as we know it.
I don't know how it is worldwide but I know that in this part of Canada our churches cannot always afford to pay pastors and other church officials full-time salary so they all have to get supporting jobs.
chason:
The artistic value of this candid photograph is... what, exactly? Apparently, $20,000 a pop. This photograph in particular: where's the artistic value? It's a picture of a man's face with some interesting light patterns. The supposed 'art' value of it has more to do with the process (setting up a hidden camera and lighting system on a public street and see what falls out) than the subject, who is completely objectified in the process.
This whole series of photos expresses nothing but contempt for its subjects. This is the worst kind of art, in that is derives its value only from the name that created it. So, as a critic of the 'art', I can say I hope he loses the lawsuit, and worse, I hope he falls on a rusty nail and dies of tetanus. We don't need any more of this sort of self-aggrandizing shite.
it is interesting to me
how rights over
visual and auditory input and output
are so sharply different
why is the image of a celebrity
is regarded so differently
from the sounds she/he makes?
the celebrity's image
is 'supposedly'
in the public domain
after they cross the line
of 'famous'
or perhaps more specificly, entertainer,
and then they must Always Entertain.
why is the use of any image
valid after the manipulation of a mere
1/3,
while sound is so rabidly protected?
in one sense, a song should be even more free,
it is specifically for the public,
Ours,
we live to it,
dance to it,
you know...
so if it is an offering,
and we buy it once,
why shouldn't it be ours to reshape,
as long as we don't steal...
if i still respected metallifuk,
i couldn't sample them
(god and lars forbid,
w/o a big bag o money.)
i Could put Their heads on big piles of poop,
and be free to do so,'cause theyre Public figures'
(but i digress, no real point, just an odd thing,
since if i wanted
to use their samples,
i prolly wouldn't make them
look like crap)
personally, i think the moral line
is when one is making something new
the photograph in question
is a record of this man,
a cold one by nature at that.
there is no interpretation,
no cultural progress achieved,
and more importantly,
no respect is given to him,
Mr. Nussenzweig-
as an individual,
(anonymous)
and being recorded
(by a machine)
and used
(as "#13")
is in
an extremely dehumanised context.
if anything,
i think that this is an ass-backward
approach to art:
the actions of the automaton
`could` be considered art,
if it were thought to be aware,
but its results
as they exist
are a record:
noted by a machine
empty,
because there is no
real and active observer.
only an editor,
after any interaction
between subject
and the lifeless recorder.
to abstract the concept slightly,
a river is an organic machine,
i can pick pretty pebbles out
that it has shaped,
but that does not qualify me
as an artist.
i can pick a pretty flower,
or pull a pretty leaf,
once again,
same.
i can even find a particularly beautiful record of an ekg,
enjoy and treasure it,
display it,
same.
this does not make me an artist.
again,
i know a number of freelance artists,
and while they have to work with editors,
moreso in a collaborative process,
to say that the end product is
the work of the editor is inaccurate,
insulting,
and generally false.
though, in this case,
of a machine producing images without a human,
perhaps it `could` make sense
to call the machine an artist-
an idiot savant of sorts,
had it any cognitive ability.
but the editor in this case
is a pimp,
only looking to collect money
from his bot hos.
certainly the art
of the photographer is a print,
and a print is the result
of the interaction
of light and chemicals,
and then
chemicals and more chemicals,
and even, that the decision to take a good photograph is a chemical reaction within the brain
so in a sense it is all mechanical,
but the human
came last in this case.
they were irrelavent,
the "art" was already made,
artists that are paid well are few,
but if one should be paid so well
for quality control alone,
the applicaton line will stretch
around the country,
and it will all be in the pursuit
of mediocre art.
there is a skill to making a good
automaton,
and a skill to selecting good
images,
but to say this person is an artist
insults common sense,
i can find beauty in nature,
but if i am not an active part of the interaction,
or creation,
or record,
i am a tourist,
not an artist
to say a person
gives up their rights when they
walk out the door of their home
is terrifying ignorance
(not to mention a definite conflict
with 'liberty and the pursuit of happiness'
- though still no lawyer i)
art is absolutely,
unavoidably hard to define
and the realm of an artist
does sometimes fall into the world of the editorial,
but this Is a commercial work,
the artist is selling the product
of himself
with these images he selected
from those his automoton created
he is profiting
both through the gallery sales
and the book sales,
and the product is him as an artist,
he is gaining
your trust/support/continued attention
with the image of a man,
who is not him,
who does not choose to support him,
who had no reason
to even assume
association with him
until his photo was made an icon,
a commodity,
an aspect that is a selling point,
of his show,
his book
his publicity
(unfortunately, including even this.)
no private individual
should see any aspect
of their personal self
profit another
without notification or compensation.
"art" in its pure form is exempt,
and rare, if not long extinct.
this is our culture, our way,
our law of concept:
pay for a part of me if you get paid.
in many ways it is unfair,
but to say an artist is not a product is absurd,
ask any of the major recording labels.
Nussenzweig is not a public figure,
he is not choosing to be a part
of our cultural heritage in this fashion,
constantly a star,
a focal point,
unlike a celebrity.
certainly those in the public eye
should be allowed to be human,
and their every action not recorded,
to use the example
of their 'acceptable'
stripping of human rights
as a justification
for using this man
who had no reason to assume
he was anything other than a private individual
is absurd
to defend that someone
should be giving up their rights
to walk down the street
unassaulted with additional, unwelcomed exposure,
is to say that if you arent at your
best,
you shouldn't leave the house,
and theoretically,
i still think that the individual
deserves the right
to the Pursuit of happiness
morally,
this treads an unfortunate line.
theoretically, i could take this image,
change one third of it,
and that is still
"acceptable" as art,
even if it is anti-semetic art,
given that this is viewed
"acceptable" as an unapproved image
to say this works
in one context of art
is to say that it works in many
a person should have the rights to their direct likeness,
this picture is not selling
this man in his context,
or a record of a portion of time,
it is a moment of this man,
and i think our moments are all we have for ourselves
Unless we choose to lease them
which he hadn't
my argument is moral, not legal,
but this is not a court,
and law is not always what is right.
this is not a forum for lawyers
(thank any higher power)
to Establish what is "right"
as a human,
i think i and we and he
all are deserving
of more compassion and respect
-dmcd
IMO: his work is over rated.
His technique is rather cowardly. Could he not capture or create the same imagery by seeking out subjects, obtaining their permission and perhaps giving them something, a free print, $100, something, for their time?
A good artist could do this.
Perhaps that's beyond his skill level or perhaps he really only uses his subjects to line his pockets and could care less about them?
Obviosly, some people think that he is God.
The subject, morally, is entitled to something.
I hope neither party is prepared to settle, because this case could be an important common-law precedent. If Nussenzweig wins, then a major defeat will be dealt to the gossip rags that pay street scum to viciously harass "celebrities". Consider any pan-out shot that shows the swarm of photographers that surround people coming out of courts, for instance - no-one should be subjected to that absurd and disgusting invasion of privacy and dignity. Further, voyeur photography in general will become a civil liability risk.
However, now that digital cameras are almost universally in mobile phones, cameras are becoming ubiquitous. Also, the possibility of being photographed doing it helps keep exercisers of authority--like cops and security guards--honest.
The conflict is between the rights of Princess Diana and the rights of Rodney King. Legislation is required, to balance these rights.
Unless the old guy can prove that he lost money or status or something tangible by having his picture taken and published, I don't see why he should get any money. Certainly in the daytime, he couldn't. The fact that the photographer used a flash, however, does open up the possibility of damages. In the dark, one does have some expectation of privacy. - William E. Graham, Salem, Oregon.
What's at stake here is the very concept of "public domain." Is there a public realm in which people interact? Are our actions in that realm open to inspection by all those around us? Can our actions in that realm be recorded by anyone observing us there? If not, who controls that realm?
I submit that it is unrealistic to have ANY expectation of privacy when we are in the public realm. That realm includes being in any public space, or exposing yourself to public view or hearing.
Laws and rules can regulate how public domain material is used, especially commercially. But legal restrictions can't prevent anyone from capturing any event that takes place in the public domain as it now exists. And I think any attempt to restrict the public domain will end up destroying it.
Let's assume that laws are passed giving everyone ownership of all they say and do in public. So if you capture my image or speech, you owe me, whether or not you use what you've captured. But how can you force me to pay, and do you want to bother doing so? It would be much easier to assign your public rights to a firm that will do the job for you. And thus your piece of the public domain becomes corporate property. And before long, the public domain is extinct.
We have very few rights in private spaces. Try (obviously) taking photos in a mall or store; see how long it takes for the rent-a-cops to tell you to quit. Now envisage a nation with no public spaces. Do you want to live there?
The thing is, this isn't a photographer who took a candid photo. This was someone who set up an elaborate configuration of strobes and such so as to capture exactly the head, in great detail, of an unsuspecting passerby. This is different from capturing something 'spur of the moment' in public. Because it was triggered automatically, there is no reason that someone couldn't have approached the subject after the machines had done their job to explain what had happened and perhaps sign a waiver. For me, the issue is not that it was taken in public, but more with the lax attitude in the follow-up. It wouldn't have compromised the art, the photographer would have known if someone was opposed to their image being shown (what if the man had been Amish?), and it would have frankly just been polite.
Because so much effort clearly went into setting up the shots, it seems odd that no effort was made in this respect to the unwilling participants. Is it worth a monetary claim? I'm not sure. An injection of common sense perhaps. After all, America isn't known as the sue-happy country for nothing.
Take all the pictures you want in public spaces. Call it art, whatever. No problems.
Make money off it, that is commercial use (in this common man's opinion) since you are generating commerce.
The photographer here owes this guy something, since his likeness was obviously something of value.
I find it interesting that those who object to having their pictures taken on moral grounds never seem to speak up about the hundreds of images of them recorded every day by security cameras. In terms of quantity of images taken, this is a far, far larger problem than the odd street photographer, and these images are often being taken for profit (a security company is being paid to take and archive these images).
The Photographers Bill of Rights
http://www.krages.com/ThePhotographersRight.pdf
consider the ramifications of trying to chase after people to try and get their permission-you'd spend all your time getting permission, and no time shooting. not to mention the possibility of refusal-what if some of the best people said no?
also, i have a strange feeling that if plc's photos were selling for $500, everyone wouldn't be so enraged...
Contributing to this discussion seems a little unnecessary at this point, but I wanted to say I really like the image. I'm not familiar with diCorcia's work, really, but this particular image seems like it might be quite stunning on a large scale, in person. That's just my opinion, of course, and how I felt before I knew more of the background of the shot.
It probably wasn't too smart to ignore the model release, even though I'm pretty sure it's not legally binding. But it would've at least helped in a case like this.
can't wait to learn the results of this case.
everyone is arguing about public vs. private, etc etc...
the issue is not about being in a public space it's about the content. if diCorcia were shooting general street scenes in which an individual appeared I believe he would win this case hands-down, however, that is NOT the case. Here he's profitted from images of a specific individual.
Erno Nussenzweig, the apparent name of the man who is suing photographer Philip-Lorca diCorcia is fishing for money here. And how can you blame him for it his picture had very little value in this world until one day in 2001 diCorcia happened to make an image of him and now his image made by diCorcia has been sold for several thousand dollars. I would be annoyed too but this image makes no false statements about the subjects this is not an advertisement the subjects is lucky they weren't altered in an embarrassing way because there still wouldn't be anything they could do about it because this image is no longer the subjects ownership it it diCorcia's. The guy should get over it and enjoy his new found fame.
I wonder if anyone has approached Erno Nussenzweig and said, "Jeez Erno, you can be such a jew sometimes."
just kidding.
I only read the first half of the comments, and skimmed the rest, so I hope I am not repeating something that has already been said.
First off, there is no such thing as a right to privacy. Several municipalities and states have enacted privacy laws, but this is not in the constitution or any of its amendments. The US legal system does recognize a reasonable expectation of privacy, but that is it.
Second, the legal battle regarding model releases has been fought before (research Jock Sturges). In regards to art (no matter your opinion, that is the intended function of this photo) a model release is not legally required. Anyone in their right mind would recommend one, but you do not have to have it.
Last point, and this one is purely my opinion, I am amazed people think you should not be able to sell an image taken in public, without permission. Ideas of privacy have undergone a massive shift in the last few decades, and many people have claimed rights that simply do not exist. I would be flattered if diCorcia found me interesting enough to select as one of his "heads."
If you are afraid that someone is going to make a buck off your appearence, you better go home and hide under your kitchen table, cuz we can even shoot through your picture window. You don't like it? Move to some bananna republic.
Maybe it's legal but it seems creepy to "steal" shots of people without their permission.
Then again, he's a retired Jewish diamond merchant, so if it's about money, as a prior commenter said, then steal from the Jew, right?
(What are they teaching you people in photography school these days, anyway, if not personal integrity and law!? Cameras work themselves these days, people! I can't believe this is a matter of debate! Photogs must get a signature from subjects for commercial work, with the exception of news events!@! You think this document, below, came from thin air???? Resist the tempation to SNEAK pictures -- even from rich "jews" -- and just do the ethical legal thing so we can fight better battles than these...
"In consideration of my engagement as a model, and for other good and valuable consideration herein acknowledged as received, I hereby grant to ___________________________________ ("Photographer"), his/her heirs, legal representatives, and assigns, those for whom Photographer is acting, and those acting with his/her authority, and permission, the irrevocable and unrestricted right and permission to take, copyright in his/her own name or otherwise, and use, reuse, publish..." etc.
Full version here:
http://dpa.thevlc.com/release.php
This case was bound to happen eventually. Maybe not with Philip Lorca-DiCorcia, but with a street photographer. As a photographer, I understand the difficulty it is in taking street photographs. These aren't the times of Diane Arbus and Garry Winogrand. These are definitely not the times of Walker Evans.
Sadly in this day and age, you can sue someone for scuffing your shoes. And also, since 9/11, security has become such an issue that many are concerned with their safety in different ways. You aren't allowed to take photographs on the subways anymore. That wasn't an issue for Robert Frank. Photographers should not have the right to use a public space as their canvases.
And as to all the people who keep saying "He's a Jew...he just wants money."...I don't even know where to begin.
In some groups of Orthodox Judaism, it is forbidden to have your photograph taken. Many also shun away from having their photograph taken because they like disconnect themselves from secular society. That
If this man was not Jewish and did not look like a stereotype of a Jewish person, would you all still say that he was after money?
In the US, the second comment is very right. In public, you have no reasonable expectation of privacy. As for the commercial vs. non-commercial use of the photo, the line is drawn at endorsement of a specific product. You can use, without a model release, for any editorial use. Editorial being usually means books, newspapers, etc. However, I believe (IANAL) that it also covers works of art, since you are not endorsing a specific product with the photo, even though the photo is the product itself.
It would be different if Philip-Lorca diCorcia had taken the pictures, and then slapped some ad-copy on it and sold it to an advertising agency. Then the guy would have a case against Philip-Lorca.
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