Art trumps privacy?

[David Farber <dave () farber net>]

Begin forwarded message:

From: Krulwich <krulwich () yahoo com>
Date: March 19, 2006 2:36:06 AM EST
To: dave () farber net
Subject: Art trumps privacy?
Reply-To: krulwich () yahoo com

Dave, curious what IP thinks of the conflict between artistic  
expression and right to privacy:

http://www.nytimes.com/2006/03/19/arts/design/19phot.html

The Theater of the Street, the Subject of the Photograph

By PHILIP GEFTER

IN 1999 Philip-Lorca diCorcia set up his camera on a tripod in Times  
Square, attached strobe lights to scaffolding across the street and,  
in the time-honored tradition of street photography, took a rand! om  
series of pictures of strangers passing under his lights. The project  
continued for two years, culminating in an exhibition of photographs  
called "Heads" at Pace/MacGill Gallery in Chelsea. "Mr. diCorcia's  
pictures remind us, among other things, that we are each our own  
little universe of secrets, and vulnerable," Michael Kimmelman wrote,  
reviewing the show in The New York Times. "Good art makes you see the  
world differently, at least for a while, and after seeing Mr.  
diCorcia's new 'Heads,' for the next few hours you won't pass another  
person on the street in the same absent way." But not everyone was  
impressed.

When Erno Nussenzweig, an Orthodox Jew and retired diamond merchant  
from Union City, N.J., saw his picture last year in the exhibition  
catalog, he called his lawyer. And then he sued Mr. diCorcia and Pace  
for exhibiting and publishing the portrait without permission and  
profiting from it financially. The suit sought an injunction to halt  
sa! les and publication of the photograph, as well as $500,000 in  
compensatory damages and $1.5 million in punitive damages.

The suit was dismissed last month by a New York State Supreme Court  
judge who said that the photographer's right to artistic expression  
trumped the subject's privacy rights.

...

State Supreme Court Justice Judith J. Gische rejected Mr.  
Nussenzweig's claim that his privacy had been violated, ruling on  
First Amendment grounds that the possibility of such a photograph is  
simply the price every person must be prepared to pay for a society  
in which information and opinion freely flow. And she wrote in her  
decision that the photograph was indeed a work of art. "Defendant  
diCorcia has demonstrated his general reputation as a photographic  
artist in the international artistic community," she wrote.

But she indirectly suggested that other cases might ! be more  
challenging. "Even while recognizing art as exempted from the reach  
of New York's privacy laws, the problem of sorting out what may or  
may not legally be art remains a difficult one," she wrote.



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