March 19, 2006

Do you like to photograph strangers on the street?

Do you worry that you might need to get their permission first and think what a big drag this is on your creative expression? Then you'll like the way this lawsuit turned out:
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....

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.
Are you glad the artist won? Does whatever sympathy you have for Nussenzweig increase if you know that his religion bars the use of graven images? Does your sympathy for the artist depend on whether his choice of images makes him seem humanistic or misanthropic?

The judge's decision depended on a finding that the photograph was art. She noted diCorcia's "general reputation as a photographic artist in the international artistic community." Do those of us with less of a reputation have less freedom to photograph strangers? Do you want a judge deciding who's an artist and who isn't?

Do you take photos of strangers without their permission? If you don't, is it because you worry about getting sued? Or would you refrain even if you were sure you couldn't be sued? Is it wrong to intrude on a person's privacy like this? People expose their faces in public. We're allowed to look, aren't we? But it's considered rude to stare. Is a photograph an endless stare, a proper cause of outrage?


Dave said...

No sympathy for Nussenzweig.

He looks like a bitter old man.

Ann Althouse said...

What made him look more bitter, diCorcia's photograph or his own lawsuit?

francofou said...

If cities, transit systems, and businesses can take my picture, so can anyone else, artist or not, if I am in a public place. If, on the other hand, the photo were to ridicule me or make me appear to be something I am not (by doctoring, for instance) then I would not be happy.

Dave said...


Forgive me for my ignorance, but isn't it considered established that one should have no expectation of privacy in public?

Ellis D. Tecnine said...

I take pictures of strangers without their permission, but only in bathroom stalls and only for private use. So I guess this wouldn't apply to me.

tiggeril said...

I don't like having my picture taken, but that's because I'm not too fond of myself.

DiCorcia was in public. There's no right to privacy on a public sidewalk- that's how the paparazzi make their trade.

Jen Bradford said...

Wow, he doesn't look bitter to me at all. He looks exhausted.

I always ask permission to shoot, and I always say "portrait", not "picture". If you keep shooting after a person has given you his "official" face, you at least got the original go-ahead.

What about someone who gives permission, but is manipulated into looking nuts? Supposedly Avedon got King Edward and Wallace Simpson to shed their royal faces and look horrorstruck by telling them his dog had been killed by a taxicab.

dick said...

What is it about the Orthodox Jews and graven images. My coworkers who were and are very Orthodox Jews have photos of family sitting on their desks. One of them even uses a photo of his daughter as a screen saver.

Balfegor said...

We're allowed to look, aren't we? But it's considered rude to stare. Is a photograph an endless stare, a proper cause of outrage?

That's one thing . . . but I've always felt a bit self-conscious going outside to do quick sketches of passers by and other people just lazing about. It's just about the only way one ever gets to draw people in an "unstudied" environment, but it seems vaguely creepy, and almost voyeuristic, even though their clothes are all on. Not that this stops me, but it does make me a bit uncomfortable doing it.

jinnmabe said...

Whether or not there is an expectation of privacy, should someone else be able to profit from a picture of me, without my permission? I mean, yeah, while I'm in public I expect that people will be looking at me with their eyes, but I don't think it's reasonable to expect that someone else is making money off me just because I step outside.

$500,000 is probably a bit excessive, though.

Mickey said...

I dont take pictures, I`m not into memories..

ps-I liked the old ann(pic) better. Am I too late to comment on that??

bearbee said...

"What is it about the Orthodox Jews and graven images."

Doesn't that seem to part of the same logic as the cartoon wars when discovering that Moslems for centuries have made images of and jokes about Mohammed........?

Jen Bradford said...

(Sorry Ann!) - I like the old pic better also. In my mind it's the "nice Ann" pic. This one makes me wonder if I have something between my teeth.

Dave said...

Re Orthodox Jews and their visages.

Orthodox Jews (and some conservative Jews) believe that they are not to alter their appreance in any way; to do so is to contradict God's will, etc.

So, many do not shave, do not wear flattering clothes, do not pay attention to their weight, do not receive botox/other cosmetic procedures, etc.

It is an artifact of modernity and good health that the majority of people look at Orthodox Jews and see them as unkempt. They would not look out of place in the ninetheenth century.

Akiva said...

Sorry Dave, I believe you're misinformed and mixing a few different concepts. Generally, because of graven images, orthodox Jewish art usually doesn't involve images of people. And I'd have a religious problem if someone was posting my picture on a wall to worship it. If not, then not.

Orthodox Jewish men generally don't do things for beauty (for religious reasons), Jewish women do. That does not include grooming, good grooming is just fine. The uncut beard and sidelocks business (among ultra-orthodox Jewish men) is a positive religious stringency (not required, done for piety reasons and encouraged among certain sub-sects).

The distinctive dress of ultra-orthodox Jews in some areas (frequently seen in the NY area) is also a ultra-religious piety stringency, not required, done and encourged among certain sub-sects. The selection is not meant to be unflattering (as a matter of fact, it's styled after 18th century eastern European nobility), it's meant to be distinctive and separate.

Ultra-orthodox Jewish women dress quite flatteringly and beautifully, but specifically not provacatively, revealing or 'sexy'. Rather, beauty with modesty.

mcg said...

IANAL, but it seems to me that the profit angle has far more weight here than the religious angle. That is, the fact that diCorcia is clearly seeking to profit from the use of Nussenzweig's likeness is what ought to drive the case. Of course, that doesn't explain how papparazi are justified in taking photos of celebrities, so I readily admit I'm stuck.

Truly said...

If it is a sin, the photographer would be the sinner, not the subject, right? It sounds like sour grapes to me.

I got a few great shots of a bagpiper serenading the commuters and homeless guys in McPherson Square last Friday. He was in full kit, standing on the balcony of an office building. Though my photography is hardly "art", I can't imagine he'd have grounds to sue me.

Had he been standing on the balcony of a government building, I'd prob. have been arrested as a suspected terrorist. That's an entirely different story, though.

Ann Althouse said...

Truly: Your mention of the bagpiper reminds me of my standard for photographing strangers: I do it if they are making a spectacle of themselves.

Madison Guy said...

Traditionally the courts have given news photographers unlimited 1st Amendment freedom to photograph people without permission. Photography for commercial use, such as a stock photo in a magazine or ad, requires a model release. Always. Art is in a blurry area somewhere in between. Nussenzweig was unlucky in the judge who heard the case, diCorcia was lucky. Could have gone the other way, and has in other jurisdictions.

Smilin' Jack said...

his religion bars the use of graven images

Oh, yeah? Then why is he asking for money?

Maxine Weiss said...

Setting up a webcam leads to all sorts of questions. If I come along and start performing in front of a strange public webcam, that I fell across, by chance.....

.....should I be compensated for my performance?

Especially, if the owner of the webcam has commercial advertisers on his/her site.

To my way of thinking it's commercial and non-commercial. Although, anyone with a pay-pal account is considered commercial?

Taking pictures of strangers, putting them up on the net, with a pay-pal account. Is that commercial? Are those pictures even copyrighted?

I know nothing about IP.

My problem right now is taking pictures of other things, monuments etc... and trying to get strangers out of the shot. I don't know how to crop my photos when uploading I have all these weird people in my shots, that I didn't want. And, I hope they don't come asking for money.

Peace, Maxine

Johnny Nucleo said...

I think, in general, people don't don't like to be photographed because they don't like the way they look. It's like when you hear a tape recording of yourself and think, I don't sound like that. But you do. Photographs show people how ugly they really are.

Some people don't mind being photographed but if a stranger photographs them they don't like it because what's in it for them? If someone takes a picture of them, they want to see it.

Also, people are wary of perverts. Once, I was snapping away at a nude beach and got the crap beat out of me. I certainly learned my lesson. Now, I shoot from far away with a telephoto lens.

Eli Blake said...

Here is my question:

If he objects to photographs as 'graven images' then how come he was looking at photographs when he came across the picture?

It seems to be that when you are out in public, your appearance is part of the public domain. There is no expectation of privacy when you are walking on the street, and people should be able to take all the pictures they want. Heck, he gets on a photograph every time he goes to a bank or visits a convenience store, what is the big deal?

jvgordon said...

I would think there's a legal issue here created by the artist's attempt to profit from the image. There's a recognized tort exception to the 1st Amendment sometimes known as the right of publicity (which may not be available in all states). This tort allows people to sue when their images are used for profit (but not for newsworthy events), but they do not release their image for that use. The seminal case in this area is with a man who was smoking on a mountain, just on his own, and was photographed. That photo was ultimately used as part of the Marlboro Man campaign, as I recall. The man successfully sued to recover some of the profits made by the photographer in the use of his image. Prof. Althouse, since you teach constitutional law, you undoubtedly know more about this area than I do, since I just remember it from law school. Perhaps you can comment further on this?

David Toyne said...

Thanks for a fascinating article Prof. Althouse. As a roving photographer I find the issue you discuss very close to my own heart. I worry if things continue to get worse we will have no photo's of historical note to look back on. Henry Cartier Bresson would probably be arrested by some jobsworth now. It's a sad state of affairs.

In the UK where I live and work there is no right to privacy in public as your public persona is considered to be fair game. However if a picture is later used to mis-represent someone then you would most likely be sued.

As an example if I take a picture of a stranger and sell it as a stock photo. It is used by a magazine in an article about people with cancer. I'd probably loose my shirt as it was wrongly implied they have cancer by allowing that use. It causes emotional distress to them and family members etc...etc... A signed model release is mandatory (and ethical!) for this kind of commercial use.

When using the image as described in the article the old gentleman is not really represented as anything it's just a candid portrait. The way he reacted created a far more damaging representation of him in my opinion.