“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.” (story; also see the ruling)
There obivously are quite a bit of notable details in this ruling. I do not want to talk about the religion bit (and whether or not I think it’s a very good idea to automatically consider “free speech” as more important than religion - there’s that whole cartoon issue still going on, and that part of this story fits in right there). I do think, though, that the lawsuit focused attention on a number of important problems.
It turns out I had been thinking about this lawsuit for the past few days, and I found the article about its dismissal when looking for what had happened (maybe you do need to be somewhat psychic to write blogs? just kidding of course). In any case, here is part of what I wrote about the case earlier.
Mr. Nussenzweig’s lawyer is being quoted as saying “We claim that to take someone’s picture without their consent is bad enough”. I’d be quite happy to argue that this claim is “bad enough” itself. Here’s why (also see this weblog entry and the discussion there). First of all, why wouldn’t you allow people to take your photo? The first thing we need to note here is that this is a cultural issue, with lots of misconceptions about photography underneath. Thing is that in almost all cases somebody’s photo almost never looks like what that person expects it to look like (and in an equal number of cases the photo doesn’t look like those heavily Photoshop’ed photos that you see on magazine covers). It seems to me that the problem with this is not the photo (or the photographer). What is more, most people who don’t like to have their photo taken would probably not object if Steve McCurry (to give the name of a widely-known living photographer) came along and took it. And to add another layer of complication, those people who complain about their photo being taken, usually have no objections about those ubiquitous public “security” cameras (also see this weblog entry and the discussion there). Something clearly doesn’t compute here.
So, even though I don’t like “street photography” very much (if you want street photography take a walk!) I don’t think people have reasons to complain about an “invasion of privacy” or whatever else their complaints might be. If you’re out in the open, there really isn’t that much privacy, after all.
But, of course, it’s not quite that simple once we look at some of the details of the diCorcia case. Mr. Nussenzweig’s lawyer states that “to then hang the picture in galleries, put it in books and sell it around the city without telling the person or obtaining permission is unfair and outrageous.” And even though I’m not sure I’m comfortable with the choice of words here the lawyer has a certain point here. I just don’t know, yet, how to grab the main problem. As I said, I’m working on it.
In addition, as somebody pointed out to me, professional models usually get paid very well, so it’s hard to see why somebody whose photo sells for $20k wouldn’t get any compensation. Plus, you know, Philip-Lorca diCorcia is not your run-of-the-mill starving artist. (This bit, of course, was dismissed by the court, for a simple reason. There’s another reason for why this is tricky: Philip-Lorca diCorcia isn’t exactly raking in the jumbo juice. Many photographers who sell photos for thousands of dollars do not make a lot of money otherwise. And photography is very expensive.)
But needless to say, the ruling will have an effect for all photographers (and artists - could I sue a painter who painted me without my consent and sold that painting? - My wife doesn’t think so. She says a painting never looks as realistic as a photo, and that alone is enough.), and it touches questions that are becoming increasingly interesting - especially in times where the atmosphere has been charged with fear of terrorism.
In a sense, the lawsuit provided a good opportunity to think about these issues - especially if you do “street photography” or like to take people’s portraits. I think photographers might want to think about this a bit more. I firmly believe that taking someone else’s photo against that person’s wishes is to some extent unethical. I t’s one of those cases where reality cannot be understood in tems of black and white, there are many shades of grey, and depending on the configuration, the greys can be quite different.