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Some good news for photobloggers and fans of street photography: a Manhattan judge has ruled photographer Philip-Lorca diCorcia was well within his rights to sell copies of this photograph of an Orthodox gentleman. The shot was taken as part of diCorcia's "Heads" project, which involved shooting pictures using a concealed camera. The Post reports:
...Manhattan Supreme Court Justice Judith Gische ruled that the head shot showing Nussenzweig, with a white beard, a black hat and a black coat, is art — even though the photographer took it surreptitiously near Times Square in 2001 and then sold 10 prints of it at $20,000 to $30,000 each......New York's right-to-privacy laws prohibit the use of someone's likeness for commercial purposes without the person's permission. But if the likeness is deemed to be art, the commerce restrictions do not apply.
This seems to reaffirm the right of photographers to take and sell pictures of people without getting signed waivers, as long as the purpose of the pictures is making art. [Related: for some great street photography, check out Joe's NYC, Slower, and Travis Ruse.]
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I am not familiar with the facts of the case at hand, but remember a few things... (1) this is a lower court ruling which may not be treated as precedent in other similar cases, (2) could be appealed, (3) if it applies state law only then every state is different.
I can't believe that picture was bought by 10 people for $20 to $30,000 dollars.
What a ridiculous ruling, how does one determine whether a picture taken is art or not? I hope the courts overturn the ruling, especially when it was taken without his knowledge.
Should I start to secretly take pics up women's skirts and call them "vaginas"?
This is far from the first case to come to this conclusion.
A Federal District Court found, in Hoepker v. Kruger, 200 F.Supp.2d 340 (S.D.N.Y. 2002), that a right to privacy did not prohibit a photographer from using a photo of a woman in his art without her permission, including using the image in "postcards, note cubes, magnets and t-shirts and in exhibit catalogues" that were sold at the Whitney in NYC.
BS. Any identifiable person in any image should have the right to say how it's used and if any compensation is required, ESPECIALLY for anything deemed as "art". (nice term, that, what exactly does that mean legally?)
No model release, no commercial use. Period.
How do you define art?
Well, if you're providing the picture for a purpose because it looks nice, or it has feeling/depth, or because it's colorful... then it's art.
If you're using the picture to sell dish detergent, then it's commercial use, and you'd absolutely need a model release before you use it in advertising (and, additionally, before any stock agency would accept it).
I personally don't disagree with this ruling... it certainly makes me feel a little uncomfortable as a pedestrian in a photographic city, but people seriously need to chill the fizz-uck out. I don't know what anyone non-famous is worried about with their images. It makes no difference personally or professionally if you've got nothing to hide.
This particular case was just a money grab, and I'm glad that the greedy subject of the photo didn't get what he was trying to scheme for.
The judge ment "commercial" as in for advertising or promotional purposes. (IE: the guy who sued Taster's Choice coffee, for example). Advertising is not fully bound to the First Amendment, and has a number of limitations.
Besides, think of all the lawsuits that old, homeless, chess-playing black guys could pull on a couple decades' worth of pretentious photographers.
I understand that the only images one can circulate WITHOUT a model release from the subject were images deemed "news worthy", thus journalistic, such as in the case of AP, Reuters and other newswire type images. This is the first time I've heard that art is exempt from needing model release forms. I'm a professional photographer and this is news to me.
A model release is not required for "editorial" use, which is a different standard from "newsworthiness" - for example you don't need a release for a portrait, which may well have no news value at all, if it is published in a magazine. However if you want to publish that same portrait in a commercial context (annual report, corporate in-house magazine, poster for sale, greeting card, advertisement) then you need a release.
This decision says that the first amendment protects his art, and therefore overrides the state privacy law.
I was amazed PL D-C didn't have an assistant scrambing around at street level trying to get releases.
There's an appeal planned, so I doubt we've heard the last of it.
www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1139565912319
Very Nice portrait. Good contrast and use of light really make this images stand out.
Here in Ireland, things are a little more complicated when it comes to photographer's rights.
The Minister for Justice says "that the private interactions of a person - even in a public place - may be covered by the right to privacy".
So, two people playing chess in a public park are off limits.
I still carry my camera everywhere and I'll continue to shoot street shots. I don't think I'll sell them but you never know..
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