Philip-Lorca diCorcia Lawsuit Dismissed

[tim atherton]

Reported earlier: "Philip-Lorca diCorcia is being sued by an Orthodox Jewish man that he photographed in 2001, as part of his Heads series." - as reported here, here, and here.

"A judge has dismissed an Orthodox Jew's lawsuit, finding that a photograph taken of him on a street and sold for hundreds of thousands of dollars is art - not commerce - and therefore is protected by the First Amendment, even though his religion forbids such images."

More:

http://www.jmcolberg.com/weblog/archives/001665.html

[tim atherton]

Here are a few of the direct links...:

http://www.boingboing.net/2005/07/01/photographer_sued_by.html

http://www.firstamendmentcenter.org/news.aspx?id=16476

http://www.nycourts.gov/reporter/3dseries/2006/2006_50171.htm

[paulr]

These passages from the new york court reports are worth reading closely.

Suggestion is that what constitutes "art" that is protected as free speech is actually determined by state law, so we may not have heard that last of this kind of thing.

There's also a pretty interesting argument for limiting your editions, at least if you plan to offend anyone ...

______________

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.

[tim atherton]

"from a principled philosophical stance, wrong."

More accurately from a very "particular" principled philosophical stance (of which the flip side isn't necessarily just the Utilitatrian, which is a wee bit simplistic).

The argument can be made that a large chunk of photography is "exploitative" in this same way - photojournalism (usually made at the behest of large western corporations), social-documentary (in which the subjects may appear to give consent - but how much choice do they usually have), even a lot of portraiture, and probably a lot of advertising work, along with street-photography and such.

This in itself mirrors much of life and our social and work relationships - many of which could be defined as exploitative in much the same way.

"I also fail to see much artistic merit in them. The "portraits" (really snapshots) are just Evans subway "portraits" or Callahan shopper "portraits" done again for the millionth time"

Of course, a different issue - there is great art, good art and not so good art - it's all still art, but where to place it is somewhat subjective. As well is the issue of the limits of photography - how much groundbreaking work is there left to do? Some would argue almost everything had already been done by the beginning of the Twentieth Century. Much of the the very best has always been a new re-working of of that done by the pioneers - Evans working off Atget, Cartier-Bresson re-working Kertesz, Adams re-working Muybridge and co, the New-Topographers (almost literally) re-working Sullivan et al and so on ad infinitum.

"are just Evans subway "portraits..."done again for the millionth time " which have been described as " the first appearance in 20th Century art of the sublime" - so perhaps worthy of revisiting?

[tim atherton]

"The embodiment of an individual sensibility is never a re-working, even if the subject matter of the images has already been discovered. "

the DiCorcia work isn't my favourite work around, but for me it very much does the above - which of course really comes down to personal preference.

"Also, I think we are using the word "exploitation" with different connotations. I restrict the word to its most pejorative sense, whereas your definition includes the more benign meaning that we often see others as "being-of-use," and that there is nothing wrong with that, that in fact it is a necessary part of life. The two ways of using the word are worlds apart. I am sure, though, that in conversation we would quickly find ourselves in agreement (or at least in substantial agreement) concerning the underlying ethical issues."

I see it of more of a continuum "being-of-use," very easily moves into "being used" - even in everyday realtional and work encounters, never mind on a broader level. For me, exploitation in it's more prejorative sense has to have much more of a sense of harm or damage to it (and I think in this particualr case, the "religious sensibilities" aspect is a lawyerly red herring). Children working for Nike in third world conditions are exploited. Native Americans having their land stolen from them which then is used to great profit are exploited. First world companies dumping their heavy metals in Lake Managua - from which people take their food are exploitng - both the lake and the people etc. But where there is no real harm or damage done the line is much greyer and has less to do with ethics than perhaps sensibilities and manners (and as someone else once said - good manners rarely makes for good art - or words to that effect...)

tim

[paulr]

Without getting into where to draw the lines in the sand, I agree that the ethical issues raised by the case are important and worth considering by anyone who does similar work.

I'm vehemently in support of free expression. I breathed a big sigh of relief when i read that the Di Corcia case was dismissed, especially considering the shaky grounds it was based on.

that being said, if i walked into pace magill tomorrow and saw an 8 foot high picture of myself picking my nose while walking through times square, i wouldn't be too happy about it. i don't think i should have the right to stop him (technically, my privacy would not be invaded) but i would feel profoundly disrespected.

[Ralph Barker]

Personally, I find the court's finding rather refreshing. While I agree that there is a large grey area from an ethics perspective, I don't feel it's an area that needs to be clarified by law. Clearly, on the street, there is no "reasonable expectation of privacy". So, I think it is better for the court to lean toward the protection of artistic expression, even if questionable from a social or ethics perspective.

There are parallels, I think, in the different approaches or sensibilities of so-called street photographers versus the comfort zones of less-aggressive photographers. I feel uncomfortable taking pictures of people on the street, and often talk to the trees and rocks before photographing them. To others, if I'm on the street, I'm fair game for their lens. Thus, I try to mind my manners when in public. ;-)

[tim atherton]

from the NY Times

http://www.nytimes.com/2006/03/19/arts/design/19phot.html

[Emre Yildirim]

Also, in case you don't have a login for the NY Times and don't want to register....

http://www.bugmenot.com/view.php?url=www.nytimes.com

[tim atherton]

ah yes - I forget.

I think I'm registed as Bugs Bunny, Beverly Hills 90210....