Sun, February 19th, 2006 by Mute
A New York court ruled this week that a photographer who took pictures of subjects on the street without their knowledge and then made hundreds of thousands of dollars selling those images did not have to get the permission of his subjects because the intention of the work was art, not commerce. The ruling reaffirms that people in public spaces cannot assume any privacy privilege, even if, as in this case, the subject was an orthodox jew, who regard portraits as graven images and disgraces the man in his community.
I know this is good news for a lot of street photographers out there who include people in their images, such as Travis Ruse (who brought this to our attention), but I can't help feeling that there's something intrinsically wrong about being able to 'abuse' someone's image in a case like this where, because of the subject's beliefs, the use of the image was a particularly strong violation. It was deemed by the court that profit was not the aim of the photographers work, and so there was no unauthorised commercial use, but nothing else was taken into consideration.
I agree with the idea that people are 'fair game' when they're in public, but at the same time I think there is an onus on the photographer to create their own boundaries. There is already enough suspicion and aggression towards street photographers in these times, a high profile case that says we can take your photo and get rich exploiting it isn't going to help.
Old server!
February 19th, 2006 at 10:53 pm
News Link?
February 19th, 2006 at 11:26 pm
oops, thanks Faisal, I forgot that. I added a link to the most comprehensive story I could find but it's being covered by a lot of blogs and NYC sites.
February 20th, 2006 at 12:05 am
I understand that concern, but keep in mind that Lorca-DiCorcia was not the one who originated the lawsuit. He is the victim here, and it really sounds to me like the guy suing was after money. I wonder whether they had sued if the photographer hadn't been a famous one.
As for having a high profile case out there, I think it is good: most people assume they have the right to stop you from taking their photograph. The more people know this is not true, the better. I am nice when people ask me politely not to take their picture, but I don't have a lot of patience for people who are aggressive. If this case makes some people know I'm not actually infringing any of their rights, I'm happy got it.
February 20th, 2006 at 3:14 am
It's nice to see a photographer winning for a change. Usually is the other way around. Sadly, this case won't save professional street photography from dying. Right now, I see no future in a genre where you are likely to be sued at any time. That's why I stopped doing it.
February 20th, 2006 at 8:03 am
I wonder what the legal definition of "art" is... Since that appears to be the deciding factor in this case, I'd like to know what criteria they used to make that decision.
Does anyone know of a good online reference that talks about this?
February 20th, 2006 at 9:31 am
I think the intention of the photographer is what divides between commerce and art. In this case the photographer had a concept, which I think involved a remote camera release, that was put together as an art proposal, and the photographer is recognised as an artist rather than a commercial photographer.
I don't think the publicity around this case will do anything to help photographers, the 'public' won't be more likely to acquiesce to be photographed because they're more aware of their rights in public. If anything it will only make them more suspicious and aggressive towards people trying to take their picture in public. The issue here is mutual trust and this case doesn't help that.
I know that here in Canada the court decision would probably have been the other way around. I was reading that the 'charter of rights and freedoms act' states that a persons individual rights end at point of entruding on anothers rights. There's no overriding right to freedom of expression.
I can't take these kind of street shots, where you're not interacting with the subject. I've never been any good at it and I just feel like the whole point for me is to actually meet and interact with the subject, have them completely aware of the camera. It's difficult for me to know who I empathise with. I detest having my photograph taken and I know that if this had happened to me I would feel horribly violated. I know that we all, orthodox jew or not, have our photos taken hundreds of times a day in modern cities, there are CCTV cameras everywhere. But that's not the same as being the unwilling subject of a project like this.
February 20th, 2006 at 9:44 am
"I know this is good news for a lot of street photographers out there who include people in their images...."
"a high profile case that says we can take your photo and get rich exploiting it isn't going to help."
So which way is it you say? Or are you just pretending you are confused? And why didn't you even mention diCordia's name in your post? By accident, eh? Thinking he's getting rich off exploiting strangers? Heh, "exploiting" -- sheesh, what a word. C'mon, tell us what you really think.
February 20th, 2006 at 10:04 am
What's confusing you here Eugene? One statement is an assessment of reactions to the ruling the other is a personal concern. Neither are definitive, singular or absolute statements of fact, as I state, I'm in two minds about this.
Why is it important that I mention diCorda by name? And what is your unsubtle suggestion that I deliberately left his name out implying?
Yes exploiting is a word, look at the context in which it is given. I'm not saying anyone *is* exploiting anyone I'm talking about the way people who have read this decision may view photographers on the street.
February 20th, 2006 at 10:27 am
Yeah, I can see this victory being a double edged knife. Whilst I'm delighted the photographer won, I can also imagine the way the public may perceive the ruling. Often when people see a big camera they instantly assume you are going to use their face to make your millions, which seems strangely egotistical - if I encountered someone taking my photo I'd expect it to go straight into the 'needs major airbrushing' file rather than appearing on coasters and handbags across the nation.
Of course the reality is that the vast majority of street photographers make no profit from their work and do what they do simply for their own pleasure, to catch a moment, something that really happened and was not posed.
Depending on how high profile this case becomes, this may have been a victory for the individual photographer, but a blow for the rest of us. Somehow we never seem to win.
February 20th, 2006 at 10:36 am
Yeah, I don't want to be all negative about this, it is a reaffirming of a photographer's rights. I just think it's a shame it had to be a photographer who happened to be making hundreds of thousands of dollars from his photographs instead of someone like us, who might have sold a couple of prints for $30 and is a hobbyist. People will look at the money involved here rather than the basic principles.
February 20th, 2006 at 10:36 am
I'm not a street photographer for exactly the same reason Miles relates: I can't help but feel I'm intrinsically invading people's privacy - even when I do engage them and talk to them. I'm not fond of having my photograph taken and I don't want to impose that on others.
I think that the court defined a fine line between art and commerce. He may have been out to make an artistic project but he made hundreds of thousands off of it? That is a very fine line.
I think this could damage the street photographer's ability to photograph others, actually. People will get angry and violent when they don't want to be photographed because they have no other alternatives according to the courts.
February 20th, 2006 at 2:04 pm
"One of the risks of appearing in public is the likelihood of being photographed." Diane Arbus
February 20th, 2006 at 2:15 pm
"I always thought of photography as a naughty thing to do -- that was one of my favorite things about it, and when I first did it, I felt very perverse." Diane Arbus
February 20th, 2006 at 2:16 pm
"I really believe there are things nobody would see if I didn't photograph them." Diane Arbus
February 20th, 2006 at 3:35 pm
> "I really believe there are things nobody
> would see if I didn't photograph them."
> Diane Arbus
For me, this is one of the most powerful aspects of photography (or any art for that matter.) That's what makes this such an interesting topic.
February 20th, 2006 at 5:25 pm
Ditto, Brandon, ditto. It smells of arrogance, but that's Art fer ya.
February 20th, 2006 at 6:56 pm
Ok, Miles,
How do you wish the judge have ruled? That it is okay to take picture in public but not to sell them? That diCordia should compensate the guy? I mean, seriously, what do you want? Who are these "the rest of us" Emma refers to? The bloggers who take pics for pastime and never sell any of their stuff?
Eugene
February 21st, 2006 at 3:39 am
I've only had a chance to read the story link and not other versions. It feels like a lot was left out and written to make DiCorcia look bad. That said, I do think he should have been given at least a stern warning about the social aspects of his work. I don't think I would feel particularly good making 5 digit sums out of people's sweating faces (even if most of the work in getting to that money was through marketing oneself and doing lots of non-photographic activity).
The fundamental issue I think is that no matter how you look at it 'street photography' is essentially a predatory activity. Snaps of people unawares instantly puts a photographer into a position of power that his subject doesn't have. As Michal says, it borders on arrogance, and I'm equally guilty of it myself in some ways.
But you know what? There are many worse ways to humiliate and outrage people's dignities and lives, and most people don't even do it for money, but for the sheer sadistic pleasure of it.
February 21st, 2006 at 5:49 am
"I don't think I would feel particularly good making 5 digit sums out of people's sweating faces (even if most of the work in getting to that money was through marketing oneself and doing lots of non-photographic activity)."
Geoff, what you are effectively saying is that the law should either (a) prohibit photography in public, which I and many others would find unacceptable or (b) differentiate between different types of art (e.g. ones with sweating faces and ones without), which is impossible to accomplish objectively and would be ridden with censorship-style prohibitions.
February 21st, 2006 at 5:53 am
You cannot have it both ways. You cannot punish diCordia for selling photos for five-digit sums as you say and still have photography in public.
I just do not understand where all this animosity towards an accomplished artist that I'm finding in these posts comes from. From insecurity about your own work, perhaps?
February 21st, 2006 at 7:11 am
Eugene,
Street photography should not, and cannot effectively, be banned. This is an old debate that has been made time and time again. The issue I have (as well as what this whole post started about) is 'selling pictures of strangers'. And indirectly from that issue, legimating it as an art form for a wider audience.
You've only looked at all the negative comments I made about DiCorcia and street photography in general. I think I need to re-emphasize the more sympathetic points I made about DiCorcia and street photography in general. That the article that has been linked to from this blog took a strong bias against DiCorcia's work, contextualising it in terms of the legal courtroom drama and not mentioning the details of his manifesto and basis for taking the shots in the first place. And I also don't object to the *principle* of selling one's work of strangers (regardless of whether artistic motivation, the need to make a living, etc), what I object to is making obscene amounts of money which point to a need to make much more than a simple living from the commodification of voyeurism. Accomplished artists don't necessarily have to earn big money for what they do. I don't think DiCorcia should have been monetarily punished, but the court should have made a statement, more for the general public, that such behaviour, taken to extremes, will eventually not be acceptable legally.
And if this brings various forms of censorship into it, then so be it. The world is a big place. The US is a big place. There will always be platforms for all kinds of art everywhere. DiCorcia's work isn't controversial to me in the least bit, but I would accept its banning by a hypothetical Jewish Orthodox-run museum because they would have their own valid interests.
I love street photography Eugene. I love how controversial it can be in terms of subject matter, how it swings between gentle humour and raw violence, and how it reflects so many aspects of human nature in us, in both the photographer as well as his subjects. But as Susan Sontag noted before *with all photography in general*, what gets things really dirty is when it gets excessively commodified and turns the photographer into an artistic hero at the expense of his unaware and unwilling subject's right to privacy and personal dignity.
Eugene - you and i, as 'artists' we want to try new things, push the limits, and occasionally we will get burnt (or face the threat of it) - and that's when we know we've got something really interesting on our hands. That's part of the process of art. That's life.
All the best
Geoff
February 21st, 2006 at 7:15 am
Eugene,
I'm not sure how your reading these things into what the others have posted, I cannot see the animosity your talking about, except from your own posts and your last sentence "From insecurity about your own work, perhaps?" is just plain rude.
I think you've missed the point of the whole post, which to me is just a simple discusssion about a news item and it's interest and relevance to some photobloggers.
I think someone needs to chill, perhaps?
Jeremy
February 21st, 2006 at 9:29 am
"The issue I have (as well as what this whole post started about) is 'selling pictures of strangers."
"And I also don't object to the *principle* of selling one's work of strangers (regardless of whether artistic motivation, the need to make a living, etc), what I object to is making obscene amounts of money which point to a need to make much more than a simple living from the commodification of voyeurism."
Alright, Geoff, thanks for elaborating. As I see it, censorship is unacceptable. Saying "well, you know, just go somewhere else if you want to publish it" is ridiculous. When I said "prohibiting photography in public" I meant "prohibiting making art made from the material photographed in public." The thing is, you cannot put a market cap on art. You cannot say "this is worth this and that, and this should not be sold" as long as the authorship is preserved. Saying that art including pictures of strangers cannot be sold for obscene amounts of money amounts to violating authorship.
Established artists making an obscene amount of money is not a problem. CEOs making an obscene amount of money *is* a problem. I believe you are promoting regulation in the wrong field, my friend. Again, let the first rule of art be: censorship is unacceptable.
February 21st, 2006 at 11:04 am
--- "Established artists making an obscene amount of money is not a problem. CEOs making an obscene amount of money *is* a problem."
Eugene, I don't really know what to say to this without going off the main topic. :) I think they're both problems but I do agree that we need to look at issues in a broader context. My conclusion though from the short context that you've specified (including capitalist CEOs) is that it doesn't invalidate the highly capitalistic aspects of certain methods of promoting one's art. It still is a problem, and that's precisely the issue that has been raised in this discussion successfully by Miles and others.
---"I believe you are promoting regulation in the wrong field, my friend. Again, let the first rule of art be: censorship is unacceptable."
No censorship of exploitative art? How about the Muslim cartoon issue then? And the riots? And the decision to keep on circulating these cartoons in the public for various reasons, including freedom of expression? I really think you have to take other people's feelings and values into account, especially if you want to have and retain a (possibly paying) audience for your work. Unless you are a big fan of anarchy and violence, which following the principle of non-censorship, this would surely result in.
As it is, the DiCorcia issue is really not a big deal in the larger scheme of things as you've rightly noted. But we have to be careful about the conclusions we draw from it, especially when we start making general rules applied to everything elsewhere, including cultures different to our own - the Orthodox Jewish man who protested for religious reasons on having his face and garb commodified and displayed in museums across the world is just the tip of the iceberg. At least he seeks justice through non-violent means, just as we can continue to have a civilised discussion here where all points of view can be heard.
My two pennies' worth
Geoff
February 21st, 2006 at 11:22 am
And as both Dawn and Miles haved noted already, what's worrying is that the court's decision to favour DeCorcia and the way it was made (read their respective comments please) may very well encourage disillusionment in the legal justice system and prompt people who have been so-called victims of similar circumstance to take matters into their own hands.
It's not an easy issue to deal with it; I'm still scratching my head. But we really have to think hard about making these generalisations and applying them everywhere else. The media world is such an international place today, who knows what kind of audience we are reaching with the pictures we choose to publish?
-Geoff
February 21st, 2006 at 3:19 pm
Geoff, before we finish this, I have this to say. I see you have given this subject some thought and have formed an opinion. I see that your opinion was influenced by recent events that started unfolding in Denmark. I also see that you are scared shitless that some newage ethnic/religious rights activist is going to go after you and sue you into oblivion. That's a part of another very long problem that includes such interesting apples as scientology and so on.
In Poland, in 2001, Dorota Nieznalska made an installation involving a crucifix and male genitalia. After that, she was prosecuted under charges of blasphemy, ironically, in the same town where Anti-Communist demonstrations that ended with the fall of the USSR first began in the 80s.
Poland is a highly religious country where more than 90% of the people are Catholic.
From your perspective her trial would not present a problem in itself, given that her work was very likely derivative (or at least made in aftermath of) Serrano's "Piss Christ."
From my perspective her trials exemplifies a huge problem that touches upon gay and women rights in Poland, one of the more conservative states in Europe. Read this:
http://bad.eserver.org/reviews/2005/leszkowicz.html
Now I think you will be surprised to discover my stance on the cartoon issue: the papers should NOT have reprinted the cartoons. I saw the cartoons, and they are ridiculous. They are f*cking cartoons! They are not art (and please don't bother to argue that art is subjective -- referral to subjectivity is the same as referral to a higher power -- basically, the Subject doesn't exist). But you are absolutely correct: the fact that the cartoons were reprinted had unnecessarily aggravated the situation, and had made nobody any good.
I am not defending Islam here. Any religion creates the same problem as I just described on the example of Poland: The human body will be censored. Art rebels against this by its very nature, because it is played out on the surface of the body.
February 21st, 2006 at 3:29 pm
Yep, I'm not your typical East-coast liberal. Armed and dangerous.
ES
February 21st, 2006 at 4:24 pm
A similar court decision in... 2004 (?) in France ruled that a photographer who "stole" portraits in Paris underground and then published the portraits in a book without the people knowledge (and therefore permission) had the right to express his art : you own your image but artists also have the right to their art. I have to admit I found this was going a little bit far, but if I had to choose I'd choose that last ruling rather than a situation where every piece of everything belongs to someone who will try to get payed for it :)
February 21st, 2006 at 4:51 pm
You were talking about Luc Delahaye, Marc? His book has an intro by Baudrillard, who apparently was/is also a photographer.
http://www.amazon.com/gp/product/071483842X/102-9119531-4472129
We are talking well-known artists here, so please bring out names, people. It's the paparazzi who can be left nameless. Heck, even those sometimes deserve names...
February 22nd, 2006 at 12:07 am
"Again, let the first rule of art be: censorship is unacceptable."
I know this is taking the above statement to the extreme but does that mean that if someone calls up skirt or child porn photography "art" then it's acceptable.
I have no idea of the claimants real underlying purpose behind suing diCorcia but I think he has a perfectly valid point. If artists start ignoring other peoples cultural or religious beliefs in some self obsessed arrogant belief that what they have to say is far more important than what others believe or feel, especially when there is commercial gain at the others discomfort, then their contribution to the world is dubious at best. Invoking the first amendment, that somehow it trumps all other moral, ethical or community responsibilities is just a crock.
It appears to me that his responsibilities as a photographer and artist taking images of people in the public space where secondary to his artistic vision. As far as I'm concerned he didn't do his research or didn't care as to the possible offence his pictures may cause to those in the public space he is using as subjects to make money off and there's no getting away from the fact he made big money from their presence in the photographs (as well as lot's of publicity).
It's all very well making high claims of rights as an artist but with those rights come responsibilities. Snap away, but their are higher ideals to aspire to than the right to take photographs of what you want, when you want and to do with as you see fit. Just as the public should respect our right to take photographs in the public space, a little respect and empathy from photographers such as diCorcia for other peoples beliefs and desire for some privacy in the public space, goes a long way to make all our lives easier.
Jeremy
February 22nd, 2006 at 5:23 am
Hi Eugene,
I'm going to skip all the moderate 'I sympathise with both sides argument' stuff, because you're an intelligent guy and I know you appreciate frankness. And you think you know where I'm coming from. So this is what I have to say.
Regarding the polish art installation issue, I think it's really good example of arts, politics and censorship and the damn mass media. In certain ways. But it's only one example. We started off this topic in the context of the American liberal-secular arts scene and the issues regarding extreme profit-making alongside the cause of art, against the individual's rights to personal privacy. Two things. Profit-making elitist art and personal freedoms, such as religion.
Your polish example highlights only the personal freedom bits, so you've not answered the issue on profit-making. What's more, your example contextualises the groundswell and public backlash against one artist and a whole movement behind her. Its a very mentally violent form of art, in Poland, which, as you've said, is one of the more conservative states in Europe to start with. I think if there is a key party to blame for what has happened, it's the state, for not coming down sooner on controversial performance art, and managing the flow of information more effectively and productively in the aftermath of the Cold War.
But of course, Eugene, you hate the modern oppressive state, since you're a "professional anarchist" (as you've stated on your website). Frankly I'm amused by your little immature 'anarchic' personal jibes, and I thought for once it might be fun to stoop to your level and give it all back to you.
You know what I really dislike about most anarchists as a principle? That they whine and bitch all day about how shit the world is, and how they didn't have a choice to be born into this world, and therefore any amount of disorder is acceptable to overturn it. I don't know if that's what you do every night with your little bottle of vodka, but I suspect the alcohol isn't to clean your expensive camera with.
But that’s not really the key problem. Most people do that in some form or other, with or without the aid of alcohol. But you anarchists taken this bitching to the World Cup level and think you’re princes of the ideological domain. But you guys don't have, and have never had a practical and constructive alternative solution to the so-called world's problems. You're always reactionary, never pre-emptive. And while you hate much of the world around you as you see it, it's also enabled you to exist in it as a successful grad student in a good rich US university and hatch your cunning plans for world disorder.
So chew on that. Go and sip your vodka, and start hammering away your next egotistical reply from your personal computer in your comfy little student room/advanced biology lab that you, like it or not (and I suspect that you do really like it), have to exist in every day.
Cheers
Geoff
February 22nd, 2006 at 12:52 pm
Geoff, I'll go right ahead and skip your (immature) ad hominem part, because I don't have time for it.
If I am in any way immature, it is perhaps the following: I believe in Art. Or Anti-Art, for that matter. See, I consider it a good thing. I don't care it is elitist. I consider a bad thing the fact that in the present society a lot of otherwise smart people only care about their own little precious personalities and so-called freedoms (such as the freedom for religion you've mentioned). Because it's all about f*cking flavors and textures, with no real meat -- only artificial sweeteners and diet pills. You don't realize what an incredible self-indulgent, hedonistic society you live in, and you are not even trying.
The Soviet system (supported by incredible sheepishness of the people and hypertrophied bureaucracy), leftovers of which I still experienced in Ukraine, was created by continual elimination of intellectual elite. So there your anti-elitist argument goes down the drain.
"I think if there is a key party to blame for what has happened, it's the state, for not coming down sooner on controversial performance art, and managing the flow of information more effectively and productively in the aftermath of the Cold War."
What was that? Repeat that again. You mean you are blaming the state for not being a Communist dictatorship it was before? For not exercising its (actually, enormous) power to silence people?
Here's a link for you all regarding the question of censorship:
http://www.jackthepelicanpresents.com/calebweintraub.html
February 22nd, 2006 at 12:59 pm
I have to give you credit, Geoff, that ad hominem part you wrote was a very amusing little piece to read!
February 22nd, 2006 at 3:52 pm
Eugene,
You're a bloody idiot.
If Geoff attacks you he is immature, where as your posts attacking others are what... insightfull and perceptive !
"From insecurity about your own work, perhaps?"
"Who are these "the rest of us" Emma refers to? The bloggers who take pics for pastime and never sell any of their stuff?"
Real fucking mature !
Grow up and get your head out of your ass.
Jeremy
February 22nd, 2006 at 3:57 pm
Comments are closed on this post.