Philip-Lorca diCorcia Lawsuit Dismissed
Reported earlier: "Philip-Lorca diCorcia is being sued by an Orthodox Jewish man that he photographed in 2001, as part of his Heads series." - as reported here, here, and here.
"A judge has dismissed an Orthodox Jew's lawsuit, finding that a photograph taken of him on a street and sold for hundreds of thousands of dollars is art - not commerce - and therefore is protected by the First Amendment, even though his religion forbids such images." More:
Last edited by tim atherton; 02-16-2006 at 11:38 AM. Click to view previous post history.
Technological society has succeeded in multiplying the opportunities for pleasure, but it has great difficulty in generating joy. Pope Paul VI
So, I think the "greats" were true to their visions, once their visions no longer sucked. Ralph Barker 12/2004
For who? It is clear that the old man's likeness was used without his consent, that his inclusion in the the photo was not incidental or subsidiary to the main content, and that the photographer actions ended in commercial gain. I think that the decision rests on a very narrow definition of what constitutes "commercial" usage. The example of the Eisenstaedt photo is is a canard, that was reportage. At issue here is not whether you can make photos in public places but rather can you profitably use the likeness of an unwilling or unknowing subject. Sure, the geezer's likeness was not used to sell soap or dairy products, but it was certainly exploited for commercial gain.
Originally Posted by mark
I agree with Celac. The photograph is, unmistakenly, a head shot taken without the subject's permission. To begin with, this is HIGHLY disrespectful of the gentleman in the photo. The fact that this violates the gentleman's religious beliefs for profit makes this unethical in my view. Trying to justify this action by labeling the print "art" does not work once a print is SOLD (or even just exhibited).
If you want to steal images off of people, do it for yourself. Don't show, not to mention sell, it to others.
Not only does this kind of behaviour humiliate the "subject" of the portrait, but it makes the work of other photographers that much harder to make (we are dealt a very bad reputation).
diCorcia's behaviour should be frowned upon, if nothing else.
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I think the court got it right on. And if you read the judgement, there is clear precedent in new york especially setting out the extent of the first amendment rights of artists (which, imo should always be defended vigorously or else they will be quickly eroded) and also what constitutes art - the judges comments about not just for "starving artists" was quite pertinent.
A decision to the contrary would have placed unwarranted limits on many kinds of photography, including the work of winogrand, cartier bresson, friedlander, evans and many others. It would diminish creative work at the expense of legalistic opportunism and a spurious defence of privacy rights that are essentially non-existent.
It's the Hollywood "I want a cut of your profits" syndrome.
It's clear that much of this case came about not just for supposed "religious" reasons (which should anyways perhaps be practiced in private) but also for monetary ones. The case was filed when it was seen how much could be made from the work. A pure money grab.
Thanks the gods for a sensible judge for once
as was made clear by the judge in this case, the Courts have consistently and extensively ruled that there is a difference between commercial use and artistic use (even when the latter includes profitablity and things such as advertising or promoting the work). This was one major reason the case was thrown out - the law is quite clear on the latter in the State of New York. And rightly so
Originally Posted by pelerin
not a narrow definition at all (in many ways quite the opposite) - but a long standing precident that makes a clear and important distinction.
I think that the decision rests on a very narrow definition of what constitutes "commercial" usage.
actually a decision against the photographer would have had a much more chilling effect on photography in many many different ways. One small scenario. Imagine trying to photograph on a street. Everyone would believe they would have a right to some form of recompense from you with threats to sue if you didn't either pay up or pack up your camera - they own their likeness and they want a cut from you. With building owners quickly lining up too if you are going to make a likeness of their buildings - then they want a cut too. You wouldn't even be able to take your camera out without people threatening to sue (this is the US remember).
Originally Posted by Andre R. de Avillez
Might (just might) be okay as long as you stick to rocks and flowers :-)
I don't question the legal side of the case. Laws and ethics don't always walk hand in hand (perhaps ideally they should).
The issue (to me) is that diCorcia not only photographed, but took a head shot, without permission. Just taking a photograph without permission (except perhaps on journalism) is disrespectful. A photograph such as the one is question is even more so.
Think of it this way: what diCorcia did probably humiliated the gentleman (so much so that he eventually sued). The fact that diCorcia and others (say, the court) do not share in the gentleman's background beliefs does not excuse diCorcia for doing something that (let's face it) would bother or humiliate most members of our society.
Humiliating a person may not be illegal, but in my view it surely is unethical. diCorcia could have easily refrained from humiliating the man further by pulling such prints from sales, even after the initial transgression has taken place. Of course, the best action would be to respect the gentleman to begin with.
Personally, I have once offended a group of persons by including two little boys in a landscape I shot. Immediately after the first protest (2 seconds after I clicked the shutter) I apologized, and I have NEVER pritned that neg. To me, printing such an image is not worth the pain it can cause on the offended parties. After this incident (on my first experience with documentary work) I have always asked for permission to photograph, except when people are totally unidentifiable.
Sure, it takes a sort of empathy on the part of the photographer to make such a move, and many may disagree with my views on ethics, but having some idea of what humiliation feels like I decide to avoid inflicting it at all times. Furthermore, I wish that others would act in a similar fashion.
Andre, that's fine, but those are your ethics and choices. Really, taking a photograph almost harms anyone.
The man chose to sue because he thought he had the law on his side and most likely thought he could make some money off it. If it offends his religious beliefs to have his photograph taken, then he should probably stay indoors, as no doubt his image is taken dozens if not hundreds of times a day without his permission. The difference being in most of those cases there isn't a pot of money at the end of the rainbow for a successful lawsuit. Apparently having your photograph taken in order to protect the diamond trade somehow doesn't offend such religious beliefs and isn't quite the same kind of graven image that an artist might make. Not exactly the "deep religious conviction" his lawyer tries to claim?
Taking someones photograph without permission doesn't = disrespectful. That is a mistaken assumption (remember, this gentleman apparently didn't feel aggrieved until he knew money was being made from the photograph. Taking of the photograph had absolutely no effect on him whatsoever.