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?