Tim, I really disagree with you here. Are you saying that if I don't want to be insulted I should refrain from all social interaction? That if I don't want to be robbed I should refrain from having possessions (not the case here, but same rationality)?
Originally Posted by tim
I take a different stance. It is the insulting party which should refrain from making an insult. The taking of such photographs is an iffy proposition regardless of the religion of the subject (or are you suggesting that diCorcia was oblivious to the potential disagreements from the subjects?)
Perhaps not, but remember that the target audience is much smaller in that case. I'm sure that the gentleman in question took a photograph for a driver's liscence or passport as well, but he did not publicize either one. There is a degree to which one simply cannot live a religious doctrine to the letter and function in our society, but that does not entirely negate one's religion.
Originally Posted by tim
Also, religion aside, I have had my photographs taken on many ocasions, but I'm always bothered when shots are taken without my knowledge. I have a drivers liscence, but that does not warrant diCorcia doing his "art" to me.
Perhaps, perhaps not. But there's a very big chance that it did. Just as you argue that nowadays people will sue for everything, I can argue that it is KNOWN that people will sue for everything, and that this man would not tkae the risk of being ridiculed in court unless he was greatly offended.
Originally Posted by tim
This sort of argument can go both ways, can't it?
An absolutely inaccurate analogy.
Originally Posted by Andre R. de Avillez
There is currently no broad right to privacy in a public place (for many good reason) in N America and in many other countries as well. But there are broad rights to freedom of expression, enshrined in most constitutions. In the US, what privacy right there are, are generally locally (State usually) enacted and are limited. Quite limited in many cases and subject to the wider right to freedom of expression. This is also the stance that society as a whole has taken. It may change in the future, but this is the situation now.
However there are laws against robbery, aggressive or threatening behaviour and so on - none of those actions are in any way protected - indeed quite the opposite.
You may feel insulted by having your photograph taken, but taking your photograph is not inherently insulting - it is purely situational to your own psyche and world view (whereas most people would universally view robbery as "threatening to say the least). Many people couldn't care less about having their photograph taken and many others would be quite happy to have it taken - even without their permission. It isn't the taking of the photograph that is the issue. It is how you chose to perceive it. Which is quite different.
I'm sure many Muslim (and possibly some Jewish and other religious groups) are highly offended by the dress of multitudes of women they pass on the street in New York - but, as the saying goes, "that's their problem"
"It is the insulting party which should refrain from making an insult." Taking a photograph without permission is not even close to being universally insulting or disrespectful. As I say - some may find it so, many do not. And to date society as a whole has not taken such a stance nor taken any serious steps to prohibit this (unless you live in France and one or two other places like Quebec).
Also, religion aside, I have had my photographs taken on many occasions, but I'm always bothered when shots are taken without my knowledge. I have a drivers licence, but that does not warrant diCorcia doing his "art" to me.
I'd have to ask seriously - why not? The only objection to it are certain internally generated feelings on your part. What actual or even perceived harm would it cause? What damage would it actually, in reality, cause? It would all be merely your own personal perception of it. So why not do the art?
In all seriousness - the Taliban banned photography and were the first government ever to do so - even photographs of their own leader.
There are aspects of this approach to which this is the logical - if most extreme - conclusion
I think I'm with André on this issue. I have several problems here:
1. This was not some random street shoot where people are only half recognizable or engaged in some truly public or newsworthy activity. The shots were carefully arranged by the photographer to take portraits of people without their permission, which he could have asked for, or knowledge.
2. While there may only be thirteen prints, if there is artistic interest, somehow, somewhere they will be exhibited or published. So the idea that the exposure would be minimal is a bit naive.
3. Art for sale may be art but it is also commerce. Good artists ( and some not-so-good) get paid well for their work. Leonardo, Rembrandt, Picasso, Adams, and diCorcia created their art to both fulfill a vision AND get paid. There is nothing wrong with this, but it is still commerce. Making one for yourself isn't.
4. Maybe my take is different, being raised in a conservative family in a conservative area, but I find this just plain rude. I doubt I would have sued, but I would have been very tempted to knock on the photographers door and introduce my fist to his nose.
Originally Posted by tim
I read the posted excerpts of the judgement and I think I follow the argument. I just don't agree with it. As to any "clarity" that the plaintiff's motivation was a money grab... I have seen nothing supporting that. I suppose that I had the same suspicion though, i.e., they saw the picture, found out how much money was involved and went looking for their cut. Perhaps you could direct me to some hard evidence supporting this contention.
I don't see why they don't deserve cut though. The photographer make an image of the man without his consent, put it on public display and sold it for a handsome some of money. The person in question was the sole subject of the picture, not an incidental part of its content. I don't see that it follows that in order to foster creative photography we need to set "artists" apart as protected class of individuals and allow them to treat their subjects with less respect than commercial photographers. There may be a clear precedent that allows such exploitation in previous decisons handed down by New York courts. I see that as resting on a unnecessarily narrow interpretation of commercial exploitation. Luckily our system of government allows for the ability to pass new laws and fix problems we have inherited from previous legislation and the court's interpretation of it. I agree with you that many findings in current law are based on the discovery of an illusory "right to privacy" within the constitution. However, allowing a picture to be made and dividing the profits that result from its sale are not intrinsically related.
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it seems to me that the "gentleman"'s "likeness" didn't have much to do with the selling of the photo. The artist has sold MANY others before this one - and it seems that he managed to do that WITHOUT using this guy's "likeness". Thus, the mug was interchangeable - and his complaint rendered impotent. easy.
If you're going to start demanding that people on the street get royalties - then how far behind can be having to PAY to photograph the brooklyn bridge, or the Rocky Mountains?? Let's try to live in a Civilization here...
Presumably then you would agree that the US should also introduce a Right Of The Artist law along side copyright law (as some other countries do) whereby the artists also gets a cut of the prifits when there work is resold at auction etc for greater and greater profits - that way the artist also benefits along with the dealers and buyers and sellers. That surely would also be a good new law to pass?
Originally Posted by pelerin
Many of the above comments seem based not on any right to privacy or a feeling of being wronged, but rather some kind of inherrent right to get a cut of something?
I'd also agree that it was the artists skill, vision and repution as much as, if not more than, the subjects particualr "face" which makes the work and series successful.
I guess the essence of it comes down to this - if you are out in public, then it is just that - public - you give up a large degree of privacy when you leave your home and you go out of your front door.
I agree with tim and the decision.
As a photographer, I should have the right to use my camera to record anything. If I'm in public, I also should be able to exercise those rights except for cases of my trespassing or breaking the law.
The subjects side of the equation is not my concern. If he is having a bad hair day, an argument with his wife, obscure religions beliefs, expressing grief, whatever, he is still in public and I have a right to take his picture.
Part of photography is capturing the human condition. Just because you have a press pass does not mean that you are the only one able to photograph that condition. Some of our most powerful pictures of the human condition may not represent someone as they wish to be represented. Migrant mother, girl escaping napalm, ...add your list, were all captured in public and are great examples of the power of a photograph.
If the photographer makes money off this work it is no different than the photographers of the above photographs being paid by their publishers. As long as the work was not sold for "commercial" purposes (advertising) then the subject should have no claim.
Any other court decision would affect the lives of photographers in very negative ways.
On another thread we have discussed subjects that photographers simply would not shoot. In my opinion, any photographer has that choice, but I will submit that the great photographers, would shoot anything of interest, that presents itself before him. He may or may not choose to eventually print it, but he should never turn away.
I couldn't think of anything witty to say so I left this blank.
"but I'm always bothered when shots are taken without my knowledge."
So have you complained to your various government entities? They have cameras set up in many places to photograph people, intersections and venues from stadiums to airports. Start with them.
I cannot do that for many reasons, but yes, it bothers me. If some day such photographs are publicized, I might be offended and do something (which nowadays amounts to suing; for what other legal recourse do we have?)
Migrant mother was probably taken with consent. It was not the only photo taken (there were 3 or 4), which suggests that the subject KNEW what was going on and let it go on. The napalm girl was a case of journalism, wasn't it?
If a photographer wants to portray the human condition with a head shot, why not ask that person for permission? I do that, and while some people turn me away, the shots I do end up with are worth while. If a photographer really is so concerned with the human condition, he/she should be equally concerned with respecting the human beings photographed.
and Tim (sorry, I worked backwards here),
The "internally generated feelings" are actually a very big deal. Its how we feel humiliated, and how we decide if we are victims of cruelty or not. You don't need to physically harm me to have done damage to me. The fact that different people will have different responses to one's actions does not warrant one to simply ignore the possible outcomes, but rather to be more careful about causing harm to others. I realize that I'm not offering you any rationality for doing so (other than being cruel is bad and we should not do it).