more on Art trumps privacy?

[David Farber <dave () farber net>]

Begin forwarded message:

From: Mary Shaw <mary.shaw () gmail com>
Date: March 19, 2006 2:25:45 PM EST
To: dave () farber net
Subject: Re: [IP] Art trumps privacy?

Dave,

The photography community has a number of summaries of the rights of  
photographers.  These appear to say that it's ok to take pictures in  
public places (which Times Square definitely is).

You can publish those pictures, though not for purely commercial gain  
(as, for example a photo in an ad).  You can get in trouble if you  
publish a photo in such a way that it puts someone in a false light.   
Much hinges on the "expectation of privacy", but I've never seen an  
arguement that a person can claim privacy about the fact that he or  
she is in a public place.

The primer from the Missouri Bar at http://www.mobar.org/press/ 
medhnbk3.htm gives an overview for journalists. It suggests that so- 
called "privacy" claims about the photographer profiting from a photo  
taken in a public place are really more akin to intellectual property  
claims, namely the ability to control information about oneself.

The Photographer's Bill of Rights, offered by an attorney, is at  
http://www.krages.com/ThePhotographersRight.pdf . It covers taking  
pictures, not publishing them.

A nice summary of this and other interpretations is at http:// 
www.usatoday.com/tech/columnist/andrewkantor/2005-12-29-camera- 
laws_x.htm

So I'm surprised that this case turns on artistic  use vs privacy,  
since it sounds from the description like Mr Nussenzweig was in a  
public place and had no expectation of privacy.

Mary


On 3/19/06, David Farber <dave () farber net> wrote:

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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