Judge Dismisses Orthodox Jew's Lawsuit Over Time Square Photo

As reported in this article, a Supreme Court judge in New York County dismissed the plaintiff's lawsuit in Nussenzweig v DiCorcia.  The plaintiff was an Hasidic Jew and alleged that the defendant, a renowned photographer, had violated his rights under New York's Privacy Law, Civil Rights ss. 50 and 51. 

The defendant had taken a series of photographs of people in Times Square and then used the photos in an exhibition without obtaining the consent of the individuals who appeared in the photos, one of whom was the plaintiff.  The use of his photo violated his religious beliefs.

The Court concluded that the photos constituted art and thus did not violate New York's Privacy Law. The Court stated that: 

In their moving papers defendants have prima facie shown that the photograph is "art". This is not a subjective determination, and cannot be based upon the personal preferences of either party or the court. Defendant DiCorcia has demonstrated his general reputation as a photographic artist in the international artistic community. With respect to the HEADS project, DiCorcia has described the creative process he used to shoot, edit and finally select the photographs, ultimately used. The photographs were not simply held for sale in the Pace gallery, but they were exhibited and reviewed by the relevant artistic community.

The Court also rejected the plaintiff's claim that the use of his image violated the Establishment Clause, since there was no state action at issue. The Court concluded that the use of the plaintiff's likeness did not violate the First Amendment and set forth a number of similar cases for comparative purposes.  The Court then held that:

These examples illustrate the extent to which the constitutional exceptions to privacy will be upheld, notwithstanding that the speech or art may have unintended devastating consequences on the subject, or may even be repugnant. They are, as the Court of Appeals recognized in Arrington, the price every person must be prepared to pay for in a society in which information and opinion flow freely.

While I understand this line of cases and the Court's reasoning, I'm not entirely sure that I agree with it.  It's somewhat unsettling to think that a world famous photographer could snap a photo of me and broadcast my image across the internet and television, without my consent. 

Unless of course, he happens to mention this blog, my line of business and catches me on a good day when I'm dressed to the nines. If that were the case, I'd have no problem with it, whatsoever.  In fact, maybe I'll give Mr. DiCorcia a call right now.

Comments

[Eddie]

"This is not a subjective determination..."

Am I the only one who finds this comment to be a bit odd? Isn't all art subjective? Is it now the case that only those works where the artist has a "general reputation" as an artist in whatever "community" is to be deemed worthy to crate art? Or those where the right "creatrive process" was used? And what exactly is the "relevant artistic community"? If I am an unknown artist struggling to get to the top I'd be troubled by this decision.

[wdegraw]

I'm with Eddie. Art is art, and all that. But how would you know that art is art for arts sake and not for profit, or some other non-artistic purpose?*

For instance, what if the artist reproduced and the sold the photograph as postcards, calendars, books, etc. for personal profit. Should that have any effect on the Court's reasoning?

*Like the time DJ, my college roommate hung the infamous nude photos of Vanessa Williams all over the walls on his side of the dorm room. Since they were black and white, he called them "art."

[Nicole Black]

That struck me as strange as well. Seems pretty subjective to me. For instance, the black and white nudes of Vanessa Williams--in my mind--not art.

And, as an aside, what was DJ thinking, wdegraw? I doubt that that "art" was all that popular with the women to whom he actually had access. Not a smooth move for a guy in college, in my opinion.

[slickdpdx]

The idea that profit is inimical to art is bogus.

[wdegraw]

Hopefully, tomorrow's "Define that Term" word will be inimical, I can figure out whether Slick is with my or agin me.