N.Y. Times Article: Nussenzweig versus diCorcia

[neil poulsen]

In a recent New York case of Erno Nussenzweig versus Philip-Lorca diCorcia, the judge ruled in favor of photographer Pilip-Lorca diCorcia, upholding his New York right to use and sell the image of Mr. Nussenzweig as an expression of art.

http://www.nytimes.com/2006/03/19/arts/design/19phot.html?pagewanted=2&ei=5070&en=3507468ee27352da&ex=1143435600&emc=eta1

Lawrence Barth, Mr. diCorcia's attorney, comments, "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, . . ."

I wonder how this would play in other parts of the country, since part of the case revolved around a New York law prohibiting the unauthorized use of someone's image for commercial purposes?

Was it significant that the edition of these prints was limited?

In New York or elsewhere, would one be prevented from displaying an image like this for sale on an artist's webpage? Having asked a local attorney in Portland, Oregon, he indicated that artist webpages are considered advertising for the artist.

Might the above ruling have been different if the photograph had been taken on private property with the permission of the owner? For example, architectural photographs often include images of many people recognizable in the photographs. Is it legally necessary to get their releases for publication? Assume that the architectural photographer has the owners' permission to take photos on the site.

I've wondered whether gallery or internet webpages could be construed as advertising, and whether they were considered sufficiently commercial to require releases from people recognizable in the photograph when they were taken in public places.

[paulr]

see http://largeformatphotography.info/lfforum/topic/505056.html

from last month.

[Dean Tomasula]

Very interesting article. And I'm glad Mr. di Corcia prevailed in the case. But what troubles me is that the court seemed to not have placed much merit on the argument (which was a major part of Mr. Nussenzweig's case) that he objected to the photograph on religious reasons. I'm sure money played a part as well, but Mr. Nussenzweig has every right to expect that photographs of himself will not be taken without his knowledge. Particularly since graven images are forbidden by his religion.

[tim atherton]

"but Mr. Nussenzweig has every right to expect that photographs of himself will not be taken without his knowledge. Particularly since graven images are forbidden by his religion"

yet dozens of photographs are taken of him every day without his knowledge or consent.

[David A. Goldfarb]

Walk into most any New York camera dealership, and you will find many devout members of Mr. Nussenzweig's religion enthusiastically involved in the production of graven images. They may have beards and dress in 19th-century clothing, but apart from this, they aren't like the Amish.

[Eric Brody]

Timing is everything... Aspects of this very subject were discussed at this past month's meeting of the Portland Photographers Forum by Bert Krages, a local attorney expert in copyright and intellectual property law and author of a book on the the law and photography.

As has been noted, we are all photographed without our knowledge or consent in banks, government offices, and probably in other places I do not want to know about. I fear more what could be done with these images than I fear finding a photo of me in a gallery.

[paulr]

"Walk into most any New York camera dealership, and you will find many devout members of Mr. Nussenzweig's religion enthusiastically involved in the production of graven images."

and if you look up, you'll see surveillance cameras all over the ceiling, making countless graven images a second of believer and infidel alike.

[Steven Barall]

There is no presumption of privacy in a public place. Lawyers that I have spoken to about this case are amazed that it got this far at all and that the judge didn't throw it out. If the photos aren't being used for commercial purposes, meaning advertising, then you don't need a model release. The only thing that becomes an issue is if the editorial use is put into a context that is defamitory to the person in the photo.

The NY Times lost a well know case related to this almost twenty years ago. They printed a photo of a black gentleman wearing a suit and carrying a briefcase and ran a caption on the photo that described him as something that he was not and the Times, quite rightly, got it's head handed to it.

Using photos on your own website to advertise yourself is not considered a commercial use.

[Ed Richards]

We are in spiral of response and counterresponse to privacy issues in the US. Privacy concerns have exploded as real and imagined threats to privacy have increased over the past 30 years. Since the constitution only means what the courts say it does, we cannot assume that traditional norms will prevail.

Cellphone cams are driving privacy regulations across the the US, raising issues about what constitutes a public place, and whether there should be a concealed camera doctrine. I am glad to hear about this decision - there are really very few decisions that protect fine art, as opposed to news. I think the notion that fine art is not commerical is a fine distinction that could be ignored by the courts. The good news it that the US Supreme Court has started given commerical speech a higher level of protection, striking down laws that regulate truthful ads. (At least good for photographers - it is not clear that massive drug company advertising is good for the public.)

[Ken C]

"Walk into most any New York camera dealership, and you will find many devout members of Mr. Nussenzweig's religion enthusiastically involved in the production of graven images."

Hmmm, I'm pretty sure that that prohibition was related to things in heaven, and under the ground, and under the sea. Portraits of folks would seem to be OK <grin>.

I read the stories a few weeks ago and can't remember exactly (and am too lazy to go re-read them now), but I don't think Mr. Nussenzweig's objection was religious, was it?

[paulr]

"The only thing that becomes an issue is if the editorial use is put into a context that is defamitory to the person in the photo.
The NY Times lost a well know case related to this almost twenty years ago. They printed a photo of a black gentleman wearing a suit and carrying a briefcase and ran a caption on the photo that described him as something that he was not and the Times, quite rightly, got it's head handed to it."

but the times won on appeal ... this exerpt from the article cited by the o.p.:

"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."

the issue in the di corcia case was the difference between art and commercial use--whether something is considered commercial just because someone stands to make a profit.

[paulr]

"Hmmm, I'm pretty sure that that prohibition was related to things in heaven, and under the ground, and under the sea. Portraits of folks would seem to be OK ."

on earth, and in heaven above the earth, and in the sea below the earth. whether this includes a midtown camera shop is a topic for another discussion ;)

"I read the stories a few weeks ago and can't remember exactly (and am too lazy to go re-read them now), but I don't think Mr. Nussenzweig's objection was religious, was it?"

religion was one of them. he claimed that someone taking his picture somehow violated his right to practice his religion.

i'm surprised no one has jumped on the arrogance of him calling his own picture a "graven image." it suggests that what he really fears is that we're all going to drop to our knees and worship his likeness as a false god.

maybe we should, just to spite him. we can carve a monolithic statue of him, based on the di corcia picture, and prostrate ourselves before it every day at dawn.

i'll see all of you, my brothers in Nussenzweigism, at the Totem at 5:00am!

[tim atherton]

"the issue in the di corcia case was the difference between art and commercial use--whether something is considered commercial just because someone stands to make a profit."

yes - it's only art if the artists is starving was the attitude being pushed.

"I read the stories a few weeks ago and can't remember exactly (and am too lazy to go re-read them now), but I don't think Mr. Nussenzweig's objection was religious, was it?"

Yes, in part - it was one of the things his lawyer threw into the mix to muddy the waters - basically a red herring.

[Oren Grad]

paulr: i'm surprised no one has jumped on the arrogance of him calling his own picture a "graven image." it suggests that what he really fears is that we're all going to drop to our knees and worship his likeness as a false god.

maybe we should, just to spite him. we can carve a monolithic statue of him, based on the di corcia picture, and prostrate ourselves before it every day at dawn.

i'll see all of you, my brothers in Nussenzweigism, at the Totem at 5:00am!

tim: Yes, in part - it was one of the things his lawyer threw into the mix to muddy the waters - basically a red herring.

How do you know what the motivations of Nussenzweig or his lawyer were? As a commenter on this thread (http://orthomom.blogspot.com/2006/02/dont-say-cheese.html) pointed out:

The permission to take photographs of people in Halacha is by no means clearcut. Normative practice among most Jews is to allow it, but there have always been a significant minority, particularly amongst Chassidishe poskim who did not allow it. Although I've never seen it in print, it is said that this was the position of the Chafetz Chaim which is why there are so few pictures of him (real pictures). Any quick perusal of the sugyah will leave you scratching your head as to why we all don't prohibit it, but the majority of poskim somehow worked out a leniency over here.

I was able to find a specific example of a restrictive reading on this point here (http://www.hashkafah.com/index.php?showtopic=7793&st=20).

Maybe Mr. Nussenzweig subscribes to this position; maybe he doesn't. I have no idea. How do you know, that you're so confident to dismiss him as a fraud?

I don't hold that belief myself, and I think the consequences of requiring the public at large to defer to any conceivable religious sensitivity of someone in the public space are untenable. But just because you or I find it to be unreasonable or even absurd, it does not follow that someone who asserts that view is necessarily insincere.

[tim atherton]

By reading details of the arguments his lawyer put to the court citing this as one of the reasons for bringing the case, and the response of the Court. The reason that it is a red herring is that it forms no sensible legal basis to prohibiting photographs of people who subscribe to such beliefs while they walk the streets. The judge specifically referenced that aspect of the case in her dismissal of the case pointing out it essentially had no basis in Civil Law. The case was dismissed because it had no merit. So the motivation must indeed be questioned.

The Court recognized that Nussenzweig "finds the use of the photograph bearing his likeness deeply and spiritually offensive. The sincerity of his beliefs is not questioned by defendants or this court. While sensitive to plaintiff's distress, it is not redress-able in the courts of civil law. " This, his lawyer should have and must have known - hence the red herring and muddying of the waters (it remains unclear - was the case brought because of religious offence or because the work was sold for profit - the Plaintiffs arguments continually confused the issue)

After considering the 1st Amendments rights vis a vis privacy, she goes on "These examples illustrate the extent to which the constitutional exceptions to privacy will be upheld, notwithstanding that the speech or art may have unintended devastating consequences on the subject, or may even be repugnant. They are, as the Court of Appeals recognized in Arrington, the price every person must be prepared to pay for in a society in which information and opinion flow freely."

Mr Nussenzweig is free to hold his beliefs - but in public has no right for those beliefs to be upheld in law. Essentially he must chose to either compromise (which he obviously does in many many cases - one could assume his diamond office had surveillance cameras for example?), stay inside private or find a theocracy to live in.

[Oren Grad]

Tim - I agree with your general conclusion, I'm not disputing the ruling. Lawyers often bring cases to test and re-test the boundaries of law that some might consider settled. But if you want to do that, it would probably be a good idea to elaborate a coherent legal theory, rather than muddying it with an entirely different issue.

Which, of course, is what I did. The "totem of Nussenzweigism" is really a separate matter. Sorry, paulr, it just got my goat. Maybe I got up on the wrong side of the bed this morning. I'll happily consume all manner of corrosive satire. It's just not at all obvious to me that Mr. Nussenzweig is guilty as charged.

Cheers...

[dtomasula]

"Walk into most any New York camera dealership, and you will find many devout members of Mr. Nussenzweig's religion enthusiastically involved in the production of graven images. They may have beards and dress in 19th-century clothing, but apart from this, they aren't like the Amish."

While it does seem a contradiction that Hassidic Jews sell cameras, but their religion forbids graven images, that does not mean they are "involved in the production of graven images." But I agree with your point. It seems they are willing to make money off the instuments to produce graven images, but complain when they don't get a slice of the "graven image" pie.

My point was that the court seemed to place little merit on his religious beliefs. Whether you agree with those beliefs or not, I would hope the court would at least consider them if they are a part of your defense. Unless the court just thought he was out for money and used his religion as a convenient excuse.

[Marko]

Steven: Lawyers that I have spoken to about this case are amazed that it got this far at all and that the judge didn't throw it out.

Judge (as quoted by Tim): "These examples illustrate the extent to which the constitutional exceptions to privacy will be upheld, notwithstanding that the speech or art may have unintended devastating consequences on the subject, or may even be repugnant. They are, as the Court of Appeals recognized in Arrington, the price every person must be prepared to pay for in a society in which information and opinion flow freely."

The judge apprently knew very well what she was doing. By not throwing the case out, she was able to create a clear and very articulate precedent for all the future cases.

As for Mr Nussenzweig's sincerity, it would be interesting to know which method for redressing his grievance did he opt for?

[Ed Richards]

> The judge apprently knew very well what she was doing. By not throwing the case out, she was able to create a clear and very articulate precedent for all the future cases.

Just to get the procedure straight, she did thow out the case, she just gave reasons for why she threw it out. As a first level court, her rationale is useful, but is not precedent for any other courts. To get precedent, one of the parties needs to take this on to the appeals courts and the state or federal supreme court.

[Barry Trabitz]

What is the difference between "artistic endeavor" and" commercial intent" Did not the photographer intend to sell his "art"? Is that not "commercial intent"? This raises another question: when does a photographer have to have a model release signed?

[tim atherton]

"What is the difference between "artistic endeavor" and" commercial intent""

Extract from the decision for academic study:

In essence, with regards to art the judges statement that "This analysis recognizes that first amendment protection of art is not limited to only starving artists" i.e. it does not cease to become art if the artist makes a profit from it.

...The Court of Appeals has repeatedly held that the New York statutory right of privacy restricts the use of one's likeliness against use for advertising and trade only and nothing more. It is a strictly construed statute enacted with sensitivity to the potentially competing values of privacy protection versus free speech. Messenger v. Gruner, 94 NY2d 436 (2000); Finger v. Omni Publs. Int., 77 NY2d 138 (1990); Arrington v. New York Times, 55 NY2d 433 (1982).

There are recognized categories of protected uses that are not actionable under Civil Rights Laws §§ 50 and 51. The most widely recognized protected category is for matters that are "newsworthy." Messenger v. Gruner, supra. The courts also recognize that as long as the primary purpose of the use is newsworthy, incidental or ancillary commercial use of the image does not otherwise turn a protected use into an unprotected use. Arrington v. New York Times, supra; Altbach v. Kulon, 302 AD2d 655 (3rd dept. 2003). Thus, for example, use of a likeness in connection advertising or selling newspaper subscriptions does not convert an excepted use into an actionable use under the New York State Privacy Laws. Messenger v. Gruner, supra; Velez v. VV Pub. Cap, 135 AD2d 47 (1st dept. 1988) lv to app den 72 NY2d 808 (1988). Moreover, a profit generating motive will not convert an otherwise newsworthy use of someone's likeness into one that is used for advertising or trade purposes. Dworkin v. Hustler Magazine, Inc., 867 F2d 1188 (9th Circuit) cert den 110 S Ct 59 (1989).

In recent years, some New York courts have addressed the issue whether an artistic use of an image is a use exempted from action under New York States Privacy Laws. Altbach v. Kulon, 302 AD2d 655 (3rd dept. 2003); Simeonov v. Tiegs, 159 Misc 2d 54 (NY Civ Ct 1993); Hoepker v. Kruger, 200 FSupp2d 340 (SDNY 2002). They have consistently found "art" to be constitutionally protected free speech, that is so exempt. This court agrees.

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. Some states for example, limit art to transformative and not duplicative likenesses. See for example: Comedy II Publications, Inc. v. Gary Saderup, Inc., 25 Cal 4th 387 (2001) cert den 534 US 1078 (2002) [only transformative art was entitled to 1st amendment protection against California]. Other states have limited exempted use to original works of fine art, but not to distribution of reproductions. Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 250 GA 135, 296 SE2d 697 (Sup Ct 1982).

New York has been fairly liberal in its protection of what constitutes art. Altbach v. Kulon, supra; Simeonov v. Tiegs, supra; Hoepker v. Kruger, supra. In Hoepker v. Kruger, the [*7]court recognized that art can be sold, at least in limited editions, and still retain its artistic character. This analysis recognizes that first amendment protection of art is not limited to only starving artists. The analysis in Hoepker is consistent with the primary purpose/ incidental purpose doctrines, that have developed in connection with the newsworthy exemptions to privacy protections. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes. DiGregorio v. CBS, Inc., 123 Misc 2d 491 (Sup Ct NY Co 1984).

In their moving papers defendants have prima facie shown that the photograph is "art". This is not a subjective determination, and cannot be based upon the personal preferences of either party or the court. Defendant DiCorcia has demonstrated his general reputation as a photographic artist in the international artistic community. With respect to the HEADS project, DiCorcia has described the creative process he used to shoot, edit and finally select the photographs, ultimately used. The photographs were not simply held for sale in the Pace gallery, but they were exhibited and reviewed by the relevant artistic community.

None of the HEADS photographs were used to advertise anything other than the HEADS collection. The catalogue portfolio was used to advertise the exhibition, which is a permitted use under Civil Rights Laws §§ 50, 51. Altbach v. Kulon, supra.

Plaintiff does not raise any additional facts from which a conclusion could be drawn that the photograph was used for trade. There is no dispute that an extremely limited number of the photographs were sold for profit. There is also no dispute that Pace is an art gallery, not a museum, with a commercial objective of financial profitability. These facts in themselves, however, do not otherwise convert art into something used in trade. They do not raise a sufficient factual basis to challenge defendants prima facie showing that the photograph is art....

---------

This raises another question: when does a photographer have to have a model release signed?

Not in this case...

[paulr]

"How do you know, that you're so confident to dismiss him as a fraud?"

my little satire isn't about calling him a fraud ... although i suspect he's more about the dollars than any higher principle, based on all the other details. anyway, i'm making fun of him for calling a picture of himself a "graven image." A graven image is an image of a deity to be used for idolatry. i don't honestly think he has to be worried about this, regardless of whether or not he's offended.

[Oren Grad]

anyway, i'm making fun of him for calling a picture of himself a "graven image."

Then I do object, because you're taking his choice of words out of context and inverting his meaning in order to have your fun. You may think his conclusion foolish. But the line of reasoning that led to it has nothing to do with declaring or even imagining oneself to be an appropriate object of veneration - quite the opposite.

[tim atherton]

I can't be fussed to trace through whether it was just the Times that misused "graven image" or whether Nussenzweig's legal brief misused "graven image" - either way the meaning isn't inverted - just used wrongly - the term refers to carved statues (of idols - generally accepted as "other' false gods). The correct reference would be to a certain understanding of the second part of the Commandment - the apparent prohibition on the making of any image of a living thing.

Mainly it's either sloppy reporting or sloppy theology. Way OT...

[paulr]

if it's a case of sloppy reporting, then i owe mr. Nussenzweig an apology.

but if it's indeed sloppy theology, then i'm going to build my totem.

anyone who calls himself orthodox-anything, much less files a multi million $ lawsuit even partly on behalf of the word of god almighty, had better get his theology right.

[Ellis Vener]

Mr. Nussenzweig didn't file the suit, his lawyer did.

I believe Mr. Nussenzweig only became aware of the photograph of him when someone else brought it to his attention and sugested something be done; he just doesn't strike me as the type who casually peruses art gallery catalogs.

[tim atherton]

Goldberg said "his client's religion forbids, and he has a deep conviction against, reproducing his image by photography or other means because of the belief in the Second Commandment's prohibition against graven images."

apparently it's his lawyer who doesn't seem terribly well versed in old testament theology

[Paddy Quinn]

semantics really - the case is "Erno Nussenzweig, Plaintiff,

against

Philip-Lorca DiCorcia, PACE/MACGILL, INC., AND OTHERS etc"

his lawyer files the suit on his behalf

Nussenzweig's son saw the image in the exhibition catalog

again - Nussenzweig's lawyer: "It's a beautiful picture," Goldberg added. "But why should this guy make money off of your face?"

The motive is completley blurred - is it because he objects to the photographs on religious grounds as a previous post quotes him as saying? Or does he object to the artist making money off the image - if you sue for 1.6 million, it looks much more like the latter.

The case has always had much more of the ring of opportunism than a moral objection. Were DiCorcia a starving artist rather than a fairly successful one, I'd wager they wouldn't have bothered with the case.

[Roger Krueger]

There isn't anything approaching unanimity amongst Orthodox Jews whether simple photography constitutes a "graven image". It's not like Islam where there are near-absolutes. (Although, like Islam, the 3d implications of the literal meaning of "graven" are mostly ignored)

In fact, I shot a Chanukah outreach event for a co-worker this year, definitely Orthodox (she can't even shake hands with a guy), given their outreach activity I'd guess Lubavitch Hasidic, but I never actually inquired. I shot a bunch and nobody noticed or cared. Several folks had PS's and there was even one with a dRebel. Now, different sects of Hasidics can have very different rules, so Nussenzweig might well be telling the truth, but my understanding is the vast majority of the Orthodox have at most a mild aversion to photography.

Here's an article on this (search the page for "Nussenzweig", its about halfway down)

chaptzem.blogspot.com/2005_08_01_chaptzem_archive.html (http://chaptzem.blogspot.com/2005_08_01_chaptzem_archive.html )

that points out that, while 50 years ago the Klausenberg Hasidics (Nussenzweig's sect) were anti-photo,

""But that prohibition has weakened in the last two generations," Hertzberg said. "I know very few people who still have a problem with it."

My personal guess is that they understood that the religious angle would have no effect on the direction of the verdict. But if Nussenzweig had won, it could very well have had an effect on the magnitude of award.

One of the lines between "art" and "commerce" is that with art, the picture itself is all you're trying to sell. With commerce you're trying to sell something else, whether via an advertisement or a decoration on a useful object such as a t-shirt or a coffee mug.

There also seems to be the assumption that "art" is the product of one or maybe two people. Somehow Hollywood movies end up completely unprotected, even though the practical difference seems very small. Of course, there's a lot more legal activity regarding movies because there's almost always someone worth suing, which is very seldom the case with street photographers.

[Walt Calahan]

When I was young newspaper photographer I was assigned to photograph a farmer's market.

Upon arriving I discovered it was run my Amish!

So I approached to eldest man to explain myself and my sensitivity of not offending his faith.

The man listened, and when I finished my request to photographed the Amish workers in the shop, we said "It's advertising not graven images." And then added "Go on and do your work."

The very wish man saw the value of people coming to his market. He saw the value of the article in the newspaper, with photography, as a means to get people to his market. So in his thinking I was not making religious images, I was simply helping him make money.

This from the mouth of an Amish elder! Smart fellow.

Sounds like Nussenzweig was sold on the money by his lawyer.

[Ellis Vener]

One of the lines between "art" and "commerce" is that with art, the picture itself is all you're trying to sell. With commerce you're trying to sell something else, whether via an advertisement or a decoration on a useful object such as a t-shirt or a coffee mug.Roger, that is an excellent explanation; smart , short and to the point.

Tim Atherton:...apparently it's his lawyer who doesn't seem terribly well versed in old testament theology

I konow this is off topic but... if Nussenzweig were a Christian of some stripe it would be an "old testament' issue. For Jews it is the Talmudic thing. The so called "Old Testament" is a cobbled together and re-interpreted version of the Talmud to make it look like the the Talmud points to Jesus Christ as the Messiah when in fact it does no such thing.

[paulr]

"One of the lines between "art" and "commerce" is that with art, the picture itself is all you're trying to sell. With commerce you're trying to sell something else, whether via an advertisement or a decoration on a useful object such as a t-shirt or a coffee mug."

exactly ... and the reason someone needs your permission to use your image in a commercial photograph is that it implies your endorsement of what's being sold. it isn't so much about money changing hands.

[paulr]

on topic or not, i think the implications of the second commandment are interesting. as a heathun, i didn't discover it until college, and i thought it was fascinating. all the decent translations of the bible make it as airtight as a legal contract: no image of anything on the earth or in heaven above or in the sea below. in light of this, i was really curious to know how christian churches justified photography, or more significantly, all the religious art that adorns the churches and that was used to teach the traditions. it seemed like it must take some kind of theological doublethink to allow it.

i asked my mom, who had a more rigorous religious upbringing than she ever attempted to pass on to me. she said, "oh, that's not the second commandment." i showed it to her, right in the kink james. she said, "we learned it differently." i asked her what bible she used. she said, "i went to catholic school. we weren't allowed to read the bible."

hmmmm.

[tim atherton]

I realise that Ellis, but I was taught my "Old Testament" studies by a Rabbi... :-)

[Oren Grad]

on topic or not, i think the implications of the second commandment are interesting. as a heathun, i didn't discover it until college, and i thought it was fascinating. all the decent translations of the bible make it as airtight as a legal contract: no image of anything on the earth or in heaven above or in the sea below.

From a Jewish point of view, it's hopeless to try to read even the "original" text of the bible, let alone any translation out of the Hebrew, with the notion of determining from the literal meaning what its application is to every aspect of modern society. Today's interpretation of halakha is based on layer upon layer of scholarly analysis of the Hebrew text. Ellis is right that it's a Talmudic thing, but it's a lot more than a Talmudic thing. There's a long and continuous line of rabbinic scholarship descending from the Talmudic period, that wrestles with the implications of the biblical text and Talmudic interpretation of it for situations and technologies that didn't emerge until long after the Talmudic period - like photography.

Some of this analysis is fairly abstruse, but the general principle of it is not. In an Orthodox context, even very young students of the bible study it not as an isolated text, but together with some of the classical rabbinic commentaries that make it immediately apparent that interpretation is not a simple matter.

The answer re photography is just not obvious from the biblical text. As has been stated here, even among the Orthodox, acceptance of photography of people is the overwhelmingly prevalent view but is not universal. This is based not on a personal reading of the literal text of the second commandment, but on scholarship by rabbinic authorities. The news reports don't have enough detail for us to know whether Mr Nussenzweig actually belongs to a Chassidic sect that follows a rabbinic authority that has ruled against it. But such authorities do exist.

[Oren Grad]

The news reports don't have enough detail for us to know whether Mr Nussenzweig actually belongs to a Chassidic sect that follows a rabbinic authority that has ruled against it

Message to self: read first, then post - as in, see Roger's discussion above re Klausenberg.

[paulr]

Oren, you seem to know a lot about this. I'm curious about your specific thoughts on the 2nd commandment issue. I've looked at 4 or 5 of the more rigorous translations of the bible, and they all seem equally clear on the topic ... no images of anything here, above, or below. It's one of the more clear cut admonitions in the whole book (along with the ones about stoning your neighbor to death for shaving his beard, and selling your daughters into slavery, but those are a separate topic). If there are other sources that trump such simple and literal biblical statements, then I would assume that the bible is relatively low on the list of authoritative scriptures in Judaism. As I take it the old testament is in christianity, although everyone still seems to quote the commandments as law.

[Michael Alpert]

Some of this discussion has looked at Jews and Jewish culture as if it were a single entity, without nuance or internal conflict. (I am referring to the startling confusion of camera-store workers with this one individual who objects to having his photograph taken). This is the same difficulty that many Christian Americans seem to have when they think about Islam. Because it is only with effort that we see the Other fully as an individual, we (I include myself) tend to find broad categories in which to place people who belong to other cultures and/or races. I think that is what is happening here. For me, photography, with its almost maniacal specificity, works in opposition to this tendency.

One additional related thought: The legal issues in this case have been settled. The ethical issue of how to respectfully treat a photographic subject will never be fully resolved, if only because ethics and ethical behavior is a matter of questioning, not of finding answers.

[Oren Grad]

Paulr, that's an excellent question. As implied by what I said before, in Judaism the written Torah (five books of Moses) is a key source of the law, but its literal reading is very far from the full extent or the final word of the law. Any translation of the biblical text proper, no matter how brilliant or subtle, would not capture anywhere near the extent of the law as it is supposed to be followed. And in particular, sometimes the latter actually departs very substantially from what one would expect from a simple, straight reading of the biblical source. The departures may seem quite non-intuitive, too, if you're not already at least somewhat familiar with the process of analysis and reasoning followed in the Talmud and by later rabbinic scholars. So no matter how clear-cut or obvious the literal meaning of Exodus 20 may seem to you, it's not correct to assume that that meaning explains the behavior of an observant Jew today, even if he cites the second commandment as motivation - there's plenty of subtle analysis of what the second commandment actually means before one gets to the particulars of what one may or may not do.

If you're curious, there are a couple of pieces in Wikipedia that can give you a concise orientation as to the nature of Jewish law and the distinction between what's in the written text of the bible and what the law is in practice. I'm not at all an expert on this, but these articles seem reasonable enough. First one is this article on halakha (http://en.wikipedia.org/wiki/Halakha), especially the section on "the sources and process of halakha". Second is this one on the "oral Torah" (http://en.wikipedia.org/wiki/Oral_Law), which should help clarify why the written bible isn't the whole story and can't be used by itself as a definition of the law.

As for my own view, the fact that the literal reading of Exodus 20 seems to say one thing but the behavior of people who claim to adhere to Orthodox observance seems to imply something else doesn't have the same strangeness for me as it seems to have for you. That is surely because during my school days I spent many, many hours studying both the Torah in the classical Hebrew text with its associated rabbinic commentaries and the Talmud. So even though my knowledge of the law and of rabbinical sources was limited to begin with - I had barely scratched the surface by the time I finished high school - and is further grossly decayed these many years later, and even though today I'm not at all observant myself, the mode of analytic reasoning by which the law is derived is central to my own intellectual and cultural background and is really second nature for me. But I hasten to reiterate that your question seems a natural and entirely reasonable one to me, coming from someone who doesn't have this particular background.

I thank Michael for his reiteration of the important point about taking individuals as they are. And although on first acquaintance I think the judge's ruling is probably the right one from a public policy perspective, I also agree that it leaves unanswered many troubling questions about ethical behavior that are beyond the scope of the law.

[Ralph Barker]

I have nothing further of substance to contribute to the discussion. But, I would like to commend the participants in the discussion for keeping the comments at an informative and intellectual level, notwithstanding differing cultural backgrounds. It is easy to jump to contusions (sic) based on the condensation of the facts presented in the press, but it is far more constructive to elevate the discussion above the usual biased plane. So, thanks to everyone for expanding my horizons and my LF-related cultural sensitivity.

I promise that I'll only do culturally-insensitive things with smaller formats. ;-)

[Jeff Conrad]

I think it's important to remember Neil's caveat in the initial post: the
decision derives from New York law that may differ from that in other
states.

The operative concept isn't always &ldquo;art&rdquo; versus
&ldquo;commerce.&rdquo; For example, the California Civil Code gives very
strong &ldquo;right of publicity&rdquo; to living persons and to heirs of
deceased persons:


3344. (a) Any person who knowingly uses another's name, voice, signature,
photograph, or likeness, in any manner, on or in products, merchandise, or
goods, or for purposes of advertising or selling, or soliciting purchases
of, products, merchandise, goods or services, without such person's prior
consent, or, in the case of a minor, the prior consent of his parent or
legal guardian, shall be liable for any damages sustained by the person or
persons injured as a result thereof.

The only exemption is for &ldquo;news, public affairs, or sports broadcast
or account, or any political campaign.&rdquo; Section 3344.1 gives similar
rights to heirs or assigns of deceased persons. The prevailing party is
entitled to attorneys' fees and costs.

As noted by Judge Gische, that law (under a previous numbering) was tested
in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387
(2001), which held that only &ldquo;transformative&rdquo; art had First
Amendment exemption from California's &ldquo;right of publicity&rdquo;
laws. That case involved an artist, Gary Saderup, who sold reproductions
of charcoal drawings of the Three Stooges without the consent of Comedy
III, the registered owner of the right of publicity. The Court held that
Saderup's drawings were essentially literal likenesses that simply profited
from the fame and goodwill of the Three Stooges. The Court upheld the
lower court award of $75,000 (Saderup's estimated profits) in damages and
$150,000 in attorneys' fees, and noted that selling reproductions of the
drawings in any form required the permission of the holder of the
right of publicity. The U.S. Supreme Court declined to hear the appeal.

Presumably, most photographs would be even less transformative than a
charcoal drawing, so that at least in California, a model release would
seem a good idea for anything but bona fide news. Some other states
have similar laws, so a discussion with one's IP attorney might be a good
investment for anyone who sells images (graven or otherwise) of people.

[Roger Krueger]

Jeff: I don't see how the difference in statute matters--the whole point of the diCorcia case was 1st Amendment right of expression trumping the state law. This line of reasoning seems mostly immune to the content of the statute.

But Saderup news.findlaw.com/hdocs/docs/stooges/cmdy3sdrp43001opn.pdf (http://news.findlaw.com/hdocs/docs/stooges/cmdy3sdrp43001opn.pdf) certainly has a different discussion of the factors involved in determining whether a work is protected or not. Interestingly, the court in Saderup doesn't seem to define transformativeness as an absolute standard, but an element to be balanced against the value added by the reputation of the celebrity involved. How this would be applied regarding someone (like Nussenzweig, and 99.9% of all street photography subjects) who has zero value as a celebrity remains very unclear. I'd still give a California diCorcia a better than 50/50 chance even in the face of this precedent.

It's also very interesting that the court in Saderup openly questioned the decision in the Tiger Woods case www.rcfp.org/news/2003/0620etwcor.html (http://www.rcfp.org/news/2003/0620etwcor.html) implying that it would decide differently. This stuff really is all local, both in case law and statute.

I think the real importance of Saderup is that it gives plaintiffs at least a ray of hope, a ray that could sustain them through a series of expensive trials, whereas in the 6th Circuit the Tiger Woods case would seem to offer precedent for quick dismissal. The 6th in general seems to be very anti-rights-holder--this is the same court that decided against the Rock and Roll Hall of Fame, a decision some have suggested would have come out very differently in another court.

One element of the California law that is VERY interesting is the "loser pays costs" provision. Would that survive the meat of the statute being found subordinate to the 1st Amendement in a particular case? Because, as a photographer, the real problem with this sort of case is that even if you win you're generally stuck with ruinous legal bills.

I agree that, if you intend to paint a target on your back, a discussion with an IP attorney would be a very good investment. But I'd say it's as least as important to familiarize yourself with the principles and decisions involved. Attorneys are as fallible as the rest of us, you need to be able to sniff out if your guy has really done the work for you, or if he's spouting a conservative guess off the top of his head. As long as he (a) collects his fee and (b) doesn't get sued when you get sued--he's succeeded in his view. Which is not the same as doing his best to determine what you really can get away with.

[paulr]

Thanks for the explanations, Oren.

I'm wondering if anyone has ideas about the Christian take on the 2nd commandment. I'm usually confused by the relationship between christianity and the old testament ... it seems as if some of the old is considered trumped by the new, and some of it isn't. i don't know who gets to decide which parts of the old testament are considered obsolete, and which are still engraved on stone tablets.

[Mark_3632]

I can give you the Catholic point of view...Hold On a second while I put on the asbestos suit...There we go.

No part of the new testament trumps the ten comandmeents. I was also always taught that the second comandment was pretty cut and dry. It deals with creating images of other gods and in comandment three the worshiping of those images. SO, If I shot this guy's photo, titled it "the face of god", and built a shrine around it then I would most definately be violating the second comandment, and the third. Father Valentine, a visiting priest from Rome, put it like this (paraphrased of course):

"The ten commandments are the ten commandments. They are straight forward. God intended them to be this way so there would be no confusion. It is his people who have worked overly hard complicating them."

A photo of a person on the street, sold in a gallery, in no way violates the second comandment. No, I am not aand expert on the Catholic church but I have done a lot of reading.

[paulr]

"The ten commandments are the ten commandments. They are straight forward. God intended them to be this way so there would be no confusion. It is his people who have worked overly hard complicating them."

which is interesting in this context, because in any studious translation of the bible i've seen, graven images are only one kind of image that's forbidden. which suggests that most christian interpretations, including the catholic one, are not in fact straightforward. they appear to pick and chose the phrases that support their theological predispositions, and dismiss the ones that are problematic.

unless there is some deeper, more rigorous rhyme and reason to these selective interpretations that no one's been able to explain to me.

related to all of this, is there a particular version of the bible that's considered official within the catholic church?

[Mark_3632]

Paul Said: "which is interesting in this context, because in any studious translation of the bible i've seen, graven images are only one kind of image that's forbidden. which suggests that most christian interpretations, including the catholic one, are not in fact straightforward. they appear to pick and chose the phrases that support their theological predispositions, and dismiss the ones that are problematic."

Here is a pretty good explanation: http://en.wikipedia.org/wiki/Ten_Commandments#Orthodox_and_Catholic_Christianity

Maybe my upbringing in the Catholic Church was different than others but several priests taught not to take the bible in pieces, but to see it as a whole. That every verse is tied to the one following and the one before. Though i was also taught that specific lessons can be learned from different parts, but these lessons were only part of the whole. I have encountered several other catholics who do what you say and a whole heap load from other faiths maybe that is just human nature. A baptist minister I used to have lunch with on occaison in college described it this way, when i asked pretty much the same thing you did. He said that the phrases he quoted from the bible were like the topic sentences of a paragraph, or the thesis statement of an essay. They held the true meaning while the other portions served as support, and explanation sentences upholding that verse. That is one person's take. I am not one to judge who is right or who is wrong though.

As for the "official" bible of the catholics, I have no idea. I was given a bible on the day of my confirmation by a person who got it on their confirmation. It does fine. We do have the Catechism. That is a mother to wade through, though.

[Jeff Conrad]

<cite>
I don't see how the difference in statute matters--the whole point of the
diCorcia case was 1st Amendment right of expression trumping the state law.
This line of reasoning seems mostly immune to the content of the statute
</cite>
That's not how I read Judge Gische's opinion. Although the First Amendment
was mentioned several times, it did not seem to be essential to the
decision to dismiss the action. Rather, in finding that diCorcia's work
was &ldquo;art,&rdquo; there was no violation of New York Civil Rights Law
&sect;&nbsp;50, and consequently, no cause for action.

The situation with Saderup was quite different. The former &sect;&nbsp;990 of
the California Civil Code afforded broader protection than does the New
York law; assuming that we dismiss, as the Court quickly did, Saderup's
laughable attempt at construction of the statutory language, there was no
doubt that his actions violated the statute. Consequently, his defense
required that his work be protected speech under the First Amendment.

Although <cite>Comedy III</cite> included a lengthy discussion of balancing
right of publicity with free expression protected by the First Amendment,
the test depended primarily on the extent to which the work was
&ldquo;transformative,&rdquo;


&ldquo;This inquiry into whether a work is 'transformative' appears to us
to be necessarily at the heart of any judicial attempt to square the right
of publicity with the First Amendment.&rdquo;


The Court dismissed the contention that any portrait is a creative work and
consequently automatically entitled to First Amendment protection:


&ldquo;... he [Saderup] argues that all portraiture involves creative
decisions, that therefore no portrait portrays a mere literal likeness, and
that accordingly all portraiture, including reproductions, is protected by
the First Amendment. We reject any such categorical position.&rdquo;

It certainly could be argued that the &ldquo;transformative&rdquo; nature
of street images derives largely from the context, although in the
particular case of the image of Mr. Nussenzweig, this would seem a weak
argument.

That diCorcia's prints were made in limited edition and sold only in a
&ldquo;noncommercial&rdquo; venue appeared critical to
<cite>Nussenzweig</cite>; because this was not relevant to <cite>Comedy
III</cite>, this issue was not addressed, although the Court appeared to
suggest that it might not be of great importance.

As Roger mentioned, another significant difference between
<cite>Nussenzweig</cite> and <cite>Comedy III</cite> is that the latter
involves profiting from the celebrity of the right-of-publicity holder.
There is no question that protection of celebrity images was foremost in
the minds of the legislators; the bill that redesignated former &sect;&nbsp;990
of the California Civil Code was titled the &ldquo;Astaire Celebrity Image
Protection Act.&rdquo; However, the statutory language makes no mention
of celebrity, stating simply,


&ldquo;Any person who knowingly uses another's name ...&rdquo;

seemingly protecting famous and anonymous alike. I am not sure that it
legally could be otherwise; in any event, I personally would have a real
problem if the law afforded greater protection to, say, Paris Hilton than
to Mr. Nussenzweig. Such a position also would seem counter to
well-established legal doctrine that generally affords less privacy
protection to public figures than to other individuals.

Because <cite>Comedy III</cite> dealt with celebrity rather than with Mr.
Nussenzweig, the Court did not address the issue of an ordinary person who
objected, for whatever reason, to the use of his image without permission.
To me, the statutory language would seem quite clear, but the authoritative
interpretation obviously will need to come from the courts.

For a typical street photograph, practicality would preclude an action
brought under California Civil Code &sect;&nbsp;3344, simply because the
potential award is tied to the profits arising from unauthorized use of an
image. I doubt that a T-shirt bearing my image, authorized or not, would
be a hot seller. In the case of diCorcia's work, however, the reported
profits were substantial, and given that additional prospect of punitive
damages and recovery of attorneys' fees, Mr. Nussenzweig well might have
had an incentive to bring suit had he been in California.

At present, there is one other key distinction between <cite>Comedy
III</cite> and <cite>Nussenzweig</cite>: the former was decided in
California's highest court, and is solid legal precedent; the latter was
decided in a trial court, and is not even authority in New York County. We
may learn more if Mr. Nussenzweig decides to appeal.

This has been quite an interesting and informative discussion. The ethical
questions about the use of Mr. Nussenzweig's image may be unanswerable; at
least for me, however, the broad-brush answer to the legal question would
seem to remain unsettled.

[Walt Calahan]

Man, we've got some real lawyers here!

And they have time for photography too.

Do they get billable hours posting here? Grin.

[paulr]

the smartest lawyers probably find a way to bill for the time they spend photographing.

a friend of my dad's was analysing the cryptic bill from his lawyer one time .... he asked about one the codes. the lawyer explained that it represented time spent thinking about his case while sitting on the toilet.

my dad's friend was outraged, but the lawyer said, "would you rather i NOT think about your case while sitting on the toilet?"

[Jeff Conrad]

In thinking further about my comments (let's not get into where ...), I may
have been overly dismissive of First Amendment considerations. Although
the New York privacy laws were crafted to avoid conflict with the First
Amendment, had there been a conflict, the First Amendment obviously would
have trumped, as Roger indicated, and as Judge Gische's opinion strongly
implies.

Assuming there is reasonable agreement on what is &ldquo;newsworthy,&rdquo;
differing state court interpretations of what constitutes &ldquo;art&rdquo;
probably are as significant as differences in privacy laws in determining
what constitutes misappropriation of a person's likeness. Unless the Gang
of Nine decide to intervene, these differences probably will persist. This
isn't the best of all possible worlds for the photographer; for example,
should one consider the possibility of an eventual exhibition and sale in a
state with strong privacy laws and restrictive interpretations of art? If
diCorcia's image of Nussenzweig had been exhibited and sold in California,
and Nussenzweig brought action in California courts, we probably would be
closer to having that answer.

[Ed Richards]

What makes the right of publicity cases special is that they invoke intellectual property rights, rather than just rights of privacy. While privacy does not trump, or even stand with the 1st amendment, intellectual property does because it has its own section in the Constitution. IP rights can trump the first amendment - the satire cases are important because they are an exception to this rule. Thus you can give a celebrity more protection than a mere citizen because the value of the celebrity's image has been found to be intellectual property. News can trump right of publicity, hence National Inquirer and People, but if People started selling their covers as posters, they might have some problems.

As Jeff said, until the Gang of Nine weighs in, this is an uncertain world. We should encourage Nussenzweig to appeal and hope that the appeals court goes with him, so the case can be brought before the Supreme Court. Before you get too comfortable with the 1st amendment defense, remember what happened to Jock Sturges because of the porno act. While was eventually cleared, it cost him a lot of time and money. Sally Mann should be glad her kids grew up before that one passed.