diCorcia wins lawsuit

Started Feb 13, 2006 | Discussions
Roger Krueger Senior Member • Posts: 2,785
diCorcia wins lawsuit

Philip-Lorca diCorcia was sued last year by the subject of a street photo that he sold prints of (for $10-$20,000 each, geez, must be nice) and included in a book. The court has ruled that limited-edition prints can be art, rather than commercial or trade use, and thus exempt from privacy claims. (I'm assuming they're only refering to the misappropriation part of the privacy statute, it'd be pretty weird to exempt art from defamation, private facts, or false-light claims, but it's not explicitly stated.)

There's an article at:

http://www.law.com/jsp/article.jsp?id=1139565912319

PicOne
PicOne Veteran Member • Posts: 6,932
Interesting.. Thanks.. someone tell Maisel..

How does the sale of the book that it's published in qualify for the same "fine art".. is the entire book a piece of art?

Also, someone should pass this info on to Jay Maisel... attended a seminar of his at the Photoplus expo in NYC last year.. he has hundreds (thousands?) of people candid shots all taken on Sept 11th down in the WTC area of their reactions.. Asked if he ever gets model releases, he said "no" and therefore "so, I can't sell any of these".. He might be interested to know there's now a precedent (and in NYC) that says he can.. Powerful photos though, that he doesn't think he can distribute.

psurfer Contributing Member • Posts: 696
Whew! "Not all artists need be starving"

Very interesting, indeed. A victory for artists, but something tells me that the broad range of circumstances that could apply in future challenges to this decision may not have this case leaving the last word.

I like the first line of the article, though-
"Not all artists need be starving, a Manhattan judge has ruled."

-Which is also the crux of the decision; Free speech protection for Art, vs that for trade/commerce.

Laurentiu Todie
Laurentiu Todie Senior Member • Posts: 2,567
Re: Whew! "Not all artists need be starving"

Art photos never needed model or property release.
(however, the "art" part could be disputed or even attributed to the… model : )

… and if one has objections to having art pictures taken (for religious purposes; and especially in a community that was built by another religion : ) DON'T GO OUTSIDE!

Craig Gillette Forum Pro • Posts: 10,523
Re: Why do Orthodox Jews need to hide indoors in America?

Thanks for sharing. Not. Since this hasn't gone to appeal, I'd expect the casual anti-Semitic comments are premature and unneeded.

I think this will have some trouble on appeal. He OK'd the use of the prime images as falling within the "art" precedent. It's more than a little questionable that he held that then using that image, essentially unrestricted, in advertising was also acceptable. That seems to me to have broadened from a limited fine art exception to a rather broad commercial, business application. Appeals are where precedents are made or broken, so now the fun really begins.

Laurentiu Todie
Laurentiu Todie Senior Member • Posts: 2,567
Re: Why do Orthodox Jews need to hide indoors in America?

huh?

Orthodox Jews don't have to hide indoors in the US any more than Hindus should in GB or Arabs in France.

But they should clean their feet on the doormat when they ask for shelter and respect the law of the land or build and live in gated communities with rules posted at the entrance.

Craig Gillette Forum Pro • Posts: 10,523
Re: You said it, you explain it!

"and if one has objections to having art pictures taken (for religious purposes; and especially in a community that was built by another religion : ) DON'T GO OUTSIDE!"

There have been Jews in the US since before it became the US. This has always been a safe haven. Why should they have to hide?

OP Roger Krueger Senior Member • Posts: 2,785
Re: Why do Orthodox Jews need to hide indoors in America?

Craig Gillette wrote:

Thanks for sharing. Not. Since this hasn't gone to appeal, I'd
expect the casual anti-Semitic comments are premature and unneeded.

Where was he anti-Semitic? If the country you're in allows street photography, and your interpretation of your religion forbids having your picture taken, you've got a huge problem going out in public. Not that there is anything approaching unanimity amongst Orthodox Jews whether simple photography constitutes a "graven image". It's not like Islam where there are near-absolutes.

In fact, I shot a Chanukah outreach event for a co-worker this year, definitely Orthodox (she can't even shake hands with a guy), given their outreach activity I'd guess Lubavitch Chasidic, but I never actually inquired. I shot a bunch and nobody noticed or cared. Several folks had PS's and there was even one with a dRebel. Now, different sects of Chasidics can have very different rules, so Nussenzweig might well be telling the truth, but my understanding is the vast majority of the Orthodox have at most a mild aversion to photography.

I think this will have some trouble on appeal. He OK'd the use of
the prime images as falling within the "art" precedent. It's more
than a little questionable that he held that then using that image,
essentially unrestricted, in advertising was also acceptable.

I'm assuming the advertising was for the show or book. If you have a permissible non-commercial use of an image, you are also allowed to use that image in advertising for said non-commercial use. It's called "incidental use" and is how magazines like SI and People get away with using unreleased celebs in their ads--as long as it ran as legitimate editorial copy first.

OP Roger Krueger Senior Member • Posts: 2,785
Re: Orthodoxy and photography

Here's an article on this (search the page for "Nussenzweig", its about halfway down)

http://chaptzem.blogspot.com/2005_08_01_chaptzem_archive.html

that points out that, while 50 years ago the Klausenberg Hasidics (Nussenzweig's sect) were anti-photo,

""But that prohibition has weakened in the last two generations," Hertzberg said. "I know very few people who still have a problem with it."

Laurentiu Todie
Laurentiu Todie Senior Member • Posts: 2,567
Re: Orthodoxy and photography

Craig, before you start rumors of anti semitism, know that "don't go outside" is legal speak, not a slogan of an invader of privacy.

Go to B&H, look at pictures of The Rebbe by Fridrich Vishinsky at The Chassidic Art Institute or ask a Jewish Lawyer, you'll learn a lot about Democracy (which comes with rights and… obligations : )

Glen Barrington
Glen Barrington Forum Pro • Posts: 21,112
This ruling leaves me feeling somewhat queasy

I find it somewhat disturbing that someone can violate my privacy by taking my photo against my will and publish it. Even make $10,000 off the image all because it's "fine art". That's a great ruling if you are a photographer, it's an erosion of your right to privacy if you don't carry a camera

The whole concept of "fine art" is bogus any way. Somebody define "fine art" for me! The courts are getting into areas that they don't belong in.
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jfriedl Senior Member • Posts: 1,557
I'm left a bit queasy too, but...

Me too, but for a different reason. I don't have the slightest problem with the taking of the photograph, but I do have great problems with its unpermissioned commercial use. (Labeling the commercial use "art" does nothing whatsoever to mitigate my queasiness.)

On an somewhat related note, who on earth would pay $20,000 for such a photo? I've seen it and it certainly has its qualities, but wow, I guess "art" is certainly in the eye of the beholder.

(My question about who would pay that much is a real question -- I want to know -- 'cause I have some nice snapshots I'd like to sell!)

Jeffrey

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Laurentiu Todie
Laurentiu Todie Senior Member • Posts: 2,567
Re: This ruling leaves me feeling somewhat queasy

It's Art

(not "fine art"; "fine" was added by some who wanted to differentiate from "commercial" and by crooks)

…and it is the Law's responsibility to defend it (sometimes)

http://www.legalaffairs.org/issues/September-October-2002/story_giry_sepoct2002.msp

OP Roger Krueger Senior Member • Posts: 2,785
Re: This ruling leaves me feeling somewhat queasy

Glen Barrington wrote:

I find it somewhat disturbing that someone can violate my privacy

You have no reasonable expectation of privacy on the street.

by taking my photo against my will and publish it. Even make
$10,000 off the image all because it's "fine art". That's a great
ruling if you are a photographer, it's an erosion of your right to
privacy if you don't carry a camera

Not remotely any erosion, merely confirmation of the status quo. Documentary photo books (including street photo artists like Frank, Winogrand and Friedlander) have been safe as editorial use for decades, and your face reaches a heck of a lot more people that way than through limited-edition prints.

People have always acted as if limited-edition prints were safe, but it's never been litigated before because there's never been enough money in it before.

The whole concept of "fine art" is bogus any way. Somebody define
"fine art" for me!

Art produced for its own sake, rather than "commercial art", that which is used for advertising, decoration of a useful object, or some other ulterior motive. Also generally assumes production by one, or at most two people. Corporate undertakings like movies, while they would strictly speaking seem to be fine art, have long been legally considered commercial.

The courts are getting into areas that they
don't belong in.

And what area is it they don't belong in? Defending the Constitution? This decision does not break any new ground, it follows established principles. Some of us were holding our breath, afraid that it would produce some wacko new legal theory, but that didn't happen.

Joseph S Wisniewski Forum Pro • Posts: 34,335
Not the book, the limited edition prints....

PicOne wrote:

How does the sale of the book that it's published in qualify for
the same "fine art".. is the entire book a piece of art?

Some are. I have books that are small limited edition (a Bertrand book that's from a run of 1500, signed and numbered).

But in this case, it sounds like it wasn't the book, but the limited edition prints that took it out of the "editorial" realm.

"he sold prints of (for $10-$20,000 each, geez, must be nice) and included in a book. The court has ruled that limited-edition prints can be art..."

Also, someone should pass this info on to Jay Maisel... attended a
seminar of his at the Photoplus expo in NYC last year.. he has
hundreds (thousands?) of people candid shots all taken on Sept 11th
down in the WTC area of their reactions.. Asked if he ever gets
model releases, he said "no" and therefore "so, I can't sell any of
these".. He might be interested to know there's now a precedent
(and in NYC) that says he can..

This precedent says he "can't". Books might be OK, but prints aren't.

Powerful photos though, that he
doesn't think he can distribute.

Again, a book is probably OK, it's telling a story, the images in it are "news".

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PicOne
PicOne Veteran Member • Posts: 6,932
Re: Not the book, the limited edition prints....

Joseph S. Wisniewski wrote:

Also, someone should pass this info on to Jay Maisel... attended a
seminar of his at the Photoplus expo in NYC last year.. he has
hundreds (thousands?) of people candid shots all taken on Sept 11th
down in the WTC area of their reactions.. Asked if he ever gets
model releases, he said "no" and therefore "so, I can't sell any of
these".. He might be interested to know there's now a precedent
(and in NYC) that says he can..

This precedent says he "can't". Books might be OK, but prints aren't.

Powerful photos though, that he
doesn't think he can distribute.

Again, a book is probably OK, it's telling a story, the images in
it are "news".

I don't understand, the court in the OP's post indicated that the prints were OK to sell as they were 'art', and not for advertising/trade. Can't this ruling be held as a precedent?

-- hide signature --

Detroit Reds Wings - Original Six Hockey with Motown Style!
Thirty-nine, thirteen, and five. Watch your back, Dallas!

Detroit Pistons - Number 1 in the NBA!
Forty-one and nine, we're gonna stomp some Texan!

Ciao!

Joe

http://www.swissarmyfork.com

OP Roger Krueger Senior Member • Posts: 2,785
Re: Not the book, the limited edition prints....

PicOne wrote:

Joseph S. Wisniewski wrote:

Also, someone should pass this info on to Jay Maisel... attended a
seminar of his at the Photoplus expo in NYC last year.. he has
hundreds (thousands?) of people candid shots all taken on Sept 11th
down in the WTC area of their reactions.. Asked if he ever gets
model releases, he said "no" and therefore "so, I can't sell any of
these".. He might be interested to know there's now a precedent
(and in NYC) that says he can..

This precedent says he "can't". Books might be OK, but prints aren't.

What precedent says he can't? The case just decided indicates he CAN, although it doesn't set precedent as such. But my guess is that Maisel, primarily a commercial photographer rather than a fine art photographer, was thinking of sales to advertising and other commercial markets.

Powerful photos though, that he
doesn't think he can distribute.

Again, a book is probably OK, it's telling a story, the images in
it are "news".

I don't understand, the court in the OP's post indicated that the
prints were OK to sell as they were 'art', and not for
advertising/trade. Can't this ruling be held as a precedent?

No, actually (and this was something I just got educated on too). Precedent only flows down, not sideways, and since there is no "down" from a trial court there is no precedent. Not that other courts may not look on this decision as informative, but it's not binding on anyone else yet. It could become precedent, for NY at least, if upheld on appeal.

Tim the Grey Veteran Member • Posts: 6,310
Re: diCorcia wins lawsuit

Personally, from outside the USA, I'd object purely because I don't find him to be very good at all!

I'm not sure just what he's trying to record, but it surely isn't 'everyday life'... Which is something he seem to want to do.

But what do I know, he has a raft of awards, including an Isaenstaedt (sic) award, so I guess he can command $20K a print.

Personally, if somebody wants to pay his prices good luck to 'em. I'd do the same, and charge a LOT less!

Tim

jk Veteran Member • Posts: 3,283
Re: Why do Orthodox Jews need to hide indoors in America?

dude way back when the country started they had no money they went to a philadelphia jew by the name of solomon i think his name was he loaned teh continental congress money so they can continue the battle against the red coats .. oh and they never paid him back so if not for that orthodox jew there would be no usa as we know it

Laurentiu Todie wrote:

huh?
Orthodox Jews don't have to hide indoors in the US any more than
Hindus should in GB or Arabs in France.
But they should clean their feet on the doormat when they ask for
shelter and respect the law of the land or build and live in gated
communities with rules posted at the entrance.

-- hide signature --

beam me up scotty

im giving it all shes got captain

Shutterlouse Contributing Member • Posts: 621
Dicorcia and street photography sales

Dicorcia's ruling is a useful landmark for street photographers who are artists.

This is what I have been waiting for as I have a two year project which involves street photography.

The ruling helps with the assertion that work made for art, which only gets sold in small quantities in galleries, or published in short run books, will be allowed for street photographs. Remember that 99% of people involved in this make no money from it. A few superstars like Dicorcia are the exception rather than the rule.

It is still unacceptable in the US to sell pictures of people on the street for profit, ie: use in marketing or advertising, the main use of stock photography.

In the case of Maisel, I am sure that a lot of his work would fall into the art category, he could exhibit, sell prints and publish books.

In the UK, in practice, there is no issue with making street photographs for art purpose, but the law has become murkier with the influence of the European Human Rights legislation which potentially gives people some control over how they are represented. Nevertheless, this is an important move in the right direction, and it means I can make some work for my project in the US.

I would like to see the whole court ruling to find out the full facts of the case however. I know that on some shoots Dicorcia effectively advertises what he is doing as you enter the street, so that people are warned about possible usage. I think that this was done for the "heads" work. So that may be a factor in his favour in this case. If so then the ruling may not be as generally relevant.

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