An Interesting Case
Philip Lorca- diCorcia is an award winning photographer who specializes in documentary photography. In 2001, he installed a camera on some scaffolding in Times Square in New York City and ,from 20 feet away, photographed people walking on the sidewalk below. The pictures were assembled for an exhibit and a book, “Heads” published in 2004. He did not ask permission of his subjects and neither did he share profits from the book .
One of the photographs was that of 82 year old Emo Nussenzweig, a retired diamond merchant. It is a striking photograph; the full white beard frames a face full of character and dignity. Nussenzweig, a member of an ultra-ortodox European sect known as Klausenberg Jews, did not know about the photograph because his religion forbids him from visiting galleries, watching television or reading secular books.He came to know about the photograph through a friend who suggested he contact a lawyer. His lawyer filed a suit claiming that his client “suffered severe mental anguish, emotional distress, humiliation and embarassment” and asking for a cut of photos already sold and a ban on any displays. I should mention that a lot of money is involved; diCorcia sold ten original prints of Nussenzweig at $ 20,000 to $ 30,000 each. The lawyer , Jay Goldberg, said”… what is offensive is the way the picture was taken, and the fact that this guy is making a lot of money off my client’s face, without his permission and without sharing.” Lawrence Barth, diCorcia’s lawyer, counters that this case is about the right to artistic expression which , he says , takes precedence over the right to privacy.
The First amendment grants the press the right to photograph in public places without asking permission but photography for other purposes is a gray area, addressed in many cases by state law.Under the New York Civil Rights Act, photographers must have consent if the pictures are used commercially, for example in advertising.The defendent’s lawyer, Barth, says there are exceptions, notably for artists. The plaintiff’s lawyer, Goldberg, retorts that artistic claims are secondary when artists start profiting.
On the one hand, when a tourists takes a photograph of a passer-by on a street, the latter usually asks for and receives a little tip; and that is when the photograph is purely for pleasure and not for commercial gain. Also,artists pay models to pose for them. On the other hand, Mr. Nussenzweig was in a public place when the photo was taken and he did not pose for it or actively do anything. He did not even know for several months that he had been photographed . I discount the claim that he was humiliated because I think that the motives behind this lawsuit were purely pecuniary.Since the plaintiff did not suffer any loss of time or money,and since he did not in anyway actively participate in the taking of the photograph, I don’t see that he is entitled to any of the proceeds from the photo. Of course, my reasoning is based on logic rather than law.
What do you think? Is it Art or is it Commerce ? Whom would you find for , the plaintiff or the defendant?
Usually, one never finds out the result of these long running cases which have ceased to become newsworthy by the time the case wends it’s way through the legal system. This case was an exception . In order to find out how the judge ruled, read the Wikipedia entry by searching under ” deCorcia, photographer.”