N.Y. Times Article: Nussenzweig versus diCorcia

[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 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.

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?