Gothamist: Photographer Sued for Taking Portrait

Steven Keirstead

Wed, 15 Feb 2006 20:53:08 -0500

According to this Law.com article, Nussenzweig v. diCorcia, 108446.05, has been dismissed, so photographer diCorsia won. Judge Judith J. Gische decided limited edition art photography is not legally an invasion of privacy, but expressed sympathy for the plaintiff Nussenzweig.

Dragan

Sat, 17 Sep 2005 10:14:22 -0500

btw... it's interesting in this context that Cartier-Bresson himself wasn't too fond of other people shooting him "candid-style". He sued more than one person, as a matter of fact :)

Dragan

Sat, 17 Sep 2005 10:11:21 -0500

Any news about these lawsuits yet?

Harlan Erskine

Tue, 05 Jul 2005 15:09:29 -0500

Erno Nussenzweig, the apparent name of the man who is suing photographer Philip-Lorca diCorcia is fishing for money here. And how can you blame him for it his picture had very little value in this world until one day in 2001 diCorcia happened to make an image of him and now his image made by diCorcia has been sold for several thousand dollars. I would be annoyed too but this image makes no false statements about the subjects this is not an advertisement the subjects is lucky they weren't altered in an embarrassing way because there still wouldn't be anything they could do about it because this image is no longer the subjects ownership it it diCorcia's. The guy should get over it and enjoy his new found fame.

Brian

Fri, 01 Jul 2005 17:06:06 -0500

For a great discussion of the legal issues of photography in the public space take a look here. Though this case could establish a precedent, if this guy wins, the whole history of photography is up for litigation. I can see the TV ads now...'Did you or someone you know, get photographed without permission? Well Chanskey, Chanskey, and Lobe can get you the settlement you deserve".

Rob D

Fri, 01 Jul 2005 11:38:51 -0500

People are on a public street, or any other public setting can be photographed. The reason commercial use is different is that when you are in advertising it is assumed you are endorsing a product or service. That's why you need a release - the model says that its okay that I pimp the product. In art he is the subject, in ads he is the pitchman. That's the difference. Now, while the photographs are gorgeous, I think is kinda lame to snatch photographs in the manner that he did. I'm sure he has some artistic intent behind it, but I don't care for it. Hey, you know what - that's art. As americans, we agree to at least tolerate one another when we go out into the world. This includes buttinski photographers. His subject doesn't have to like it, but he doesn't have grounds to sue.

VOS IZ NEIAS

Mon, 27 Jun 2005 17:16:18 -0500

I fully agree that the photographer is wrong here. It is ironic when people in a democratic society tend to stick for the person "pushing the limits" - Except of course when they are the ones being offended. In any case, the photographer could not use it in a commercial context without the person's permission. I give credit to Mr. Nussenzweig because he is not really the one that started this and he does not need this publicity at all. Those who know who this man is would agree 100% with me. The truth is, no one wants their picture put out in such a fashion without their consent.

Samantha T

Mon, 27 Jun 2005 14:16:18 -0500

I don't think this plaintiff will prevail because celebrities are a lot more successful with these types of invasion of privacy cases, but I don't think he's insane. No, you can't sue just because you're upset, but I would certainly be disturbed if somebody took my picture without my knowing it and reproduced it without my permission. Doesn't mean any lawyer would take my case, but I don't see anything unusual about being upset by it. The "if you don't like having your picture taken, don't leave your house" sentiment is really surprising to me.

a nony mouse

Mon, 27 Jun 2005 12:56:33 -0500

You gotta be kidding me! For those who think this is commercial work...if I am a photojournalist and I take your image on the street I can sell it for use by a newspaper or book publisher for however little or as much as I like. If I sell it for $5 or $50,000 it makes no difference. Repeat after me, how much I make off your image makes no difference! This is free speach. It is not commercial - commercial means associating the image with something else for something like selling a product or a candidate. This is editorial. Just a dude in space and time. Selling it doesn't make it commercial. The subject has no grounds for his case. Think about it this way - you dont think Tom Cruise would have sued some photographers out of existance already for poping beach shots or whatever? And in their cases they have a much stronger claim where the photographer is making money off their specific likeness. And even then they have no case. You walk around in public you are fair game end of story. This is not a tough one and its not commercial - get a clue. I just hope this leads to more people staying home all the time so the subway and streets in midtown are not as annoyingly crowded. And it is great photo. The whole series is great.

fotog

Mon, 27 Jun 2005 10:04:28 -0500

This is definitely a tough one, because both parties are correct in their own way. This is definitely a legal exercise. On a side note--it's a good photo, don't you think?

glen

Mon, 27 Jun 2005 09:29:41 -0500

here's the guy http://www.guardian.co.uk/gallery/image/0,8543,-10904347243,00.html

Scott Stowell

Mon, 27 Jun 2005 08:47:34 -0500

Scott, first you write that it's fine to clog the court system and use taxpayer money to frivolously prosecute June Brashear... I have no idea what you are talking about. Who is June Brashear?

turd ferguson

Mon, 27 Jun 2005 03:05:27 -0500

Having not seen any images associated with this story, this looks like a guy named Erno Nussenzweig.... http://www.galeriealminerech.com/artists/artists/philip-lorca/picture_4.html

Matthew McDermott

Sun, 26 Jun 2005 21:38:51 -0500

Despite the fact that the photographer and publisher made money off the image, because it was not used in conjunction with the advertising and marketing of a product other than the photograph itself and book, it seems that the use of the image is not commercial. Even if there are few words accompanying the photos in the book, I still think you could argue that the book is editorial in nature as the story being told is the impression given by the assembled picture story. How many words is a picture worth these days?

ann

Sun, 26 Jun 2005 17:06:18 -0500

i work in the photo industry and passed this story along to my friend (who owns a gallery in manhattan) and i thought his reply was interesting: "If someone is on a public street, anyone can take his or her photo and make use of the image for fine arts purposes. "Fair use" reproduction of the image is permissible without the consent of the subject. Fine art is a form of individual expression, protected by the First Amendment. The production of the photogaph gives form to the expression. Reproduction of the photo in books, etc., falls under the "fair use" provision of copyright law. Books present documentation of a work of art, whose copyright is solely owned by the artist. If a photographer produces commercial products, such as, posters, playing cards, t-shirts, illustrated coffee mugs, etc., it is usually necessary to get permission from the subject. If a book has only images and little or no editorial text, it could be construed as a commercial product. I think that P-L diC's books have editorial content. If the photographer asked the subject for prior permission and was refused, the subject may have a case. However, it seems as if the photographer and the subject had no prior contact." my friend feels the case lacks merit. will be curious to see what happens next.

Brian Van

Sun, 26 Jun 2005 11:31:58 -0500

Sort of a blurry line between "including a journalistic photo in a photojournalism book" and "including a portrait in a portrait book", and even in that argument, I wonder if the commercial rules apply to a commercially-produced photojournalism book. This really wasn't journalism, though. The gallery print sales are much more clearly a commercial use. I think the subject can collect all profits PLUS damages! (well, if he can show he was affected in some way - lawyers can get creative like that) What's interesting to consider is that this subject isn't the only one whom the photographer did this to; this case might bring some awareness to his other subjects, which means he could be hit from all sides with lawsuits. Again, dumb move.

Captain Midnight

Sun, 26 Jun 2005 11:24:01 -0500

Scott, first you write that it's fine to clog the court system and use taxpayer money to frivolously prosecute June Brashear, now you write something that basically implies model releases are never necessary. You'd make a terrible lawyer. Read the Post article. Prints of the guy sold for $20,000 apiece. That's not "commercial"? This isn't "editorial" in any sense of the word. By your reasoning, Bruce Davidson wouldn't have needed model releases for any of the pictures in his "Subway" book.

Scott Stowell

Sun, 26 Jun 2005 10:44:28 -0500

While there was nothing wrong with capturing the shot in the first place - that's perfectly legal - you can't use a photograph of someone in a commercial context without explicit permission. But this is not a commercial context. Yes, the artist and publisher can profit from the image, but that isn't the same thing. Permission is necessary to use such an image in advertising, but not for editorial use. If this lawsuit succeeds, what next? May I sketch a person on the street? Or write a story about him? How about looking at him--may I do that? Or describe him to a friend? If you don't want to be seen, stay home.

Brian Van

Sun, 26 Jun 2005 10:29:14 -0500

I hate to say it, but the photographer/publisher is wrong here. While there was nothing wrong with capturing the shot in the first place - that's perfectly legal - you can't use a photograph of someone in a commercial context without explicit permission. The subject has a right to allow or disallow such use. If you proceed without explicit permission, you haven't committed a crime but the law does allow for a subject to collect substantial monetary judgements in civil court. Because of such liability issues, most publishers will not accept photography for print if a model release does not accompany the photo. (This does not apply to journalism or personal use in public places, of course) You need to get a signed model release in these situations. Not getting the model release means that you can have your ass sued off. That's a basic photography practice, and it's addressed in every photo school in the world. I don't know why the photographer and publisher put themselves in this situation. This was a dumb move on their part, and they should settle out of court. Of course, the subject is just being greedy - knowing that the publisher and the photographer didn't cover their asses, he's in a position to take all the money for himself. Considering how much money was made on these shots so far, it's as if he won the lottery. It's kind of immoral, but many people would do the same knowing they could get a lot of money out of it.

Evil eye

Sun, 26 Jun 2005 10:00:50 -0500

Don't like your picture being taken don't leave your house. Otherwise please shut the fuck up.

bucky

Sun, 26 Jun 2005 09:42:32 -0500

Thats is hillarious Erno especially in Times Square where there are like 300 surveillance cameras that can note your every move. And you decided to go after an artist? Give it up buddy, to have a free society you need to have a free society. You have no chance in hell in winning.