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02/20/2006 09:40:34 PM · #1 |
Gothamist Article
Good News for Photobloggers: You Can Sell Your Shots
Some good news for photobloggers and fans of street photography: a Manhattan judge has ruled photographer Philip-Lorca diCorcia was well within his rights to sell copies of this photograph of an Orthodox gentleman. The shot was taken as part of diCorcia's "Heads" project, which involved shooting pictures using a concealed camera. The Post reports:
...Manhattan Supreme Court Justice Judith Gische ruled that the head shot showing Nussenzweig, with a white beard, a black hat and a black coat, is art ΓΆ€” even though the photographer took it surreptitiously near Times Square in 2001 and then sold 10 prints of it at $20,000 to $30,000 each...
...New York's right-to-privacy laws prohibit the use of someone's likeness for commercial purposes without the person's permission. But if the likeness is deemed to be art, the commerce restrictions do not apply.
This seems to reaffirm the right of photographers to take and sell pictures of people without getting signed waivers, as long as the purpose of the pictures is making art. [Related: for some great street photography, check out Joe's NYC, Slower, and Travis Ruse.]
And where I first saw it.... |
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02/20/2006 09:49:15 PM · #2 |
| Man, for 20-30 thousand dollars, you'd think he could clone out that red light... |
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02/20/2006 09:53:04 PM · #3 |
Originally posted by DrAchoo:
Man, for 20-30 thousand dollars, you'd think he could clone out that red light... |
That might be what makes it "art," in the eyes of the judge anyhow ... |
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02/20/2006 09:54:54 PM · #4 |
Originally posted by DrAchoo:
Man, for 20-30 thousand dollars, you'd think he could clone out that red light... |
i like the red light - he looks foreboding / & red works (in my eyes) better than green or yellow ...
though i am surprised at the judgemnet ..
Message edited by author 2006-02-20 21:55:19. |
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02/20/2006 11:16:42 PM · #5 |
principle over product?
it's a nice photo, but not a wowzayowza one.
still, the ruling is interesting...
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02/20/2006 11:54:23 PM · #6 |
I remember this story from awhile back. Wow, the ruling is surprising to me. I actually don't agree with it. I think a waiver should have been needed.
The ruling is interesting though. So, as long as you are thinking 'art' when you click the shutter you don't need a waiver...even if you are also thinking, "Hey, I'm making art and if several people later give me 30 grand each, I'm going to take it without hesitation."
Edit: I also agree that the photo isn't that "Wow" for me.
Message edited by author 2006-02-20 23:55:02.
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02/21/2006 12:03:00 AM · #7 |
| So did this judge base the ruling on the "look" of the photo or how it was sold? |
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02/21/2006 12:05:09 AM · #8 |
| Anyone spending $20 - 30,000 on this photo has something wrong in the head. |
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02/21/2006 12:15:04 AM · #9 |
Originally posted by Artyste:
Anyone spending $20 - 30,000 on this photo has something wrong in the head. |
I agree. Sometimes I think that it doesn't matter how nice the image/goods look, it's how well the photographer/seller can bullsh*t his way through the sale.
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02/21/2006 12:18:56 AM · #10 |
Originally posted by Artyste:
Anyone spending $20 - 30,000 on this photo has something wrong in the head. |
You know how sometimes things get blown out of proportion for the suits sake? :p |
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02/21/2006 12:37:22 AM · #11 |
Originally posted by ButterflySis:
I remember this story from awhile back. Wow, the ruling is surprising to me. I actually don't agree with it. I think a waiver should have been needed.
The ruling is interesting though. So, as long as you are thinking 'art' when you click the shutter you don't need a waiver...even if you are also thinking, "Hey, I'm making art and if several people later give me 30 grand each, I'm going to take it without hesitation."
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This ruling fits exactly with my understanding of the law. For photographs taken in public places:
1) News photographers don't need model releases. If I am photographed in the crowd at Times Square on New Year's Eve, it is perfectly OK for a newspaper to publish it without getting my permission.
2) Art photographers don't need model releases. If some artist snaps a picture of me in the crowd at Times Square on New Year's Eve, it is perfectly OK for her to make prints to display in an art show and to sell those prints without getting my permission.
Model releases are required the moment the image is used for commercial purposes. Neither the news photographer nor the artist can sell the image of me for use in an advertisement or other commercial purpose such as in a catalog.
There are lots of gray areas (so you need to consult an attorney) but this case does not seem to be one.
The ethics of the situation are not the same as the legal situation. I think there is a real ethical problem with the use of this image and I would never use an image of someone against their will--even if I have the legal right to do so.
--Dan |
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02/21/2006 12:48:43 AM · #12 |
| The fact that the courts have put another limit on the right to "privacy" echoes futher concerns... |
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02/21/2006 01:09:41 AM · #13 |
Originally posted by mastrmind:
The fact that the courts have put another limit on the right to "privacy" echoes futher concerns... |
How is this a privacy issue? He was in public. |
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02/21/2006 02:20:49 AM · #14 |
Originally posted by yanko:
Originally posted by mastrmind:
The fact that the courts have put another limit on the right to "privacy" echoes futher concerns... |
How is this a privacy issue? He was in public. |
Exactly! There should be no expectation of privacy in a public place.
David
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02/21/2006 04:42:39 AM · #15 |
I don't feel that you should expect privacy in a public place. Is Mastrmind's point to do with it being taken with a concealed camera? If you didn't want your photo taken, you could do your utmost to avoid being 'in shot' - if you could actually see the camera.
I'd like to be able to take candids as much as the next person, but I agree with wheeledd about the ethics of this situation...
EDIT for clarity
Message edited by author 2006-02-21 04:43:29. |
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02/21/2006 06:25:03 AM · #16 |
On the value of the print, I don't think that it is possible to properly assess an image like this unless you see the final print in the context of a body of work. Sometimes people on this site get a little obsessed with 640px images, when art is often all about big, beautiful prints.
As to the right to privacy vs right of exploitation, it is interesting that some people think that the covert nature of the image-taking is relevant. There is a genre of candid imagery taken with cameras that are disguised or hidden, which results in natural and unforced imagery.
People are photographed all of the time without being aware of it, and surely must impliedly consent to it when walking in public spaces. The fact that one image is stored on a CCTV tape, another is part of a tourist's album, a third is on the front cover of a newspaper and a fourth is hung in a gallery seem to me to be reasonably comparable in their essential quality: they are images taken in an arena where there is no significant or reasonable expectation that images will not be recorded and used as images in their own right.
The distinction with commercial exploitation of images is that people walking in public, reasonably, do not expect as a consequence to be associated with a commercial product.
Message edited by author 2006-02-21 06:26:28.
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02/21/2006 07:01:51 AM · #17 |
| Okay, what nobody has addressed is that the Hasidim like the Amish and Old Order Mennonites apparently have some religious prohibition against being photographed. This *art* has caused this man to be cast in a disgraceful light within his community. If simply being in public implies consent, are we saying that Hasidic Jews, Amish, and Old Order Mennonites don't have the right to go out in public? Doesn't the constitution guarantee them the right to be secure in their person and effects? This picture wasn't shot from a distance, and he isn't part of a crowd ie street scene, a photographer walked up to him with a hidden camera and took his picture. If he'd seen the camera he would have gone the other way, or done something to conceal his face. Therefore, IMHO, his constitutional right to be secure in his person and his freedom of religion have been violated. |
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02/21/2006 07:14:11 AM · #18 |
Man, I'm surprised with this outcome. I'd be upset if my mug was making a photographer like this a serious amount of money (okay, it's unlikely, but still...)
It's great for photographers of course, but I don't approve.
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02/21/2006 07:54:12 AM · #19 |
Originally posted by wheeledd:
2) Art photographers don't need model releases. If some artist snaps a picture of me in the crowd at Times Square on New Year's Eve, it is perfectly OK for her to make prints to display in an art show and to sell those prints without getting my permission.
Model releases are required the moment the image is used for commercial purposes. Neither the news photographer nor the artist can sell the image of me for use in an advertisement or other commercial purpose such as in a catalog.
--Dan |
I must confess this viewpoint made me think twice about mine. I've always assumed that "commercial purposes" included "the selling of a print of a photo". You've got a really valid point here, and I think my previous thoughts may have been wrong.
However, I'm curious what others think here. If I were (and I'm not) a professional photographer and I make a shot of someone and only sell it for it's own intrinsic value, without associating it with any product or commercial venture (aside - does this include promotion of my studio??), is that "art" and thus exempt from the "commercial" requirement for a model release?
I think "stock photography" and their requirements for releases to keep the lawyers happy have really tainted my understanding of this issue.
And yes, I understand that nothing said here is technically legal advice. Just exploring for opinions. |
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02/21/2006 08:12:19 AM · #20 |
For the sake of simplicity, there are two kinds of photography: editorial and commercial. Commercial is used to sell something. You MUST have someone's permission for commercial use. Editorial is just about everything else - aunt Mabel's tourist shots, photojournalism, art.
Stock companies sell both commercial and editorial. The editorial images (no release) can be used by newspapers, book publishers, etc. - Anyone not using the image to sell a product or idea.
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02/21/2006 08:26:29 AM · #21 |
You all make really interesting points. However, instinctively I do side with the artist, even though I personally don't want to be some guy's art. Nah, I'm kidding - I think it's great! I wanna be art!
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02/21/2006 08:47:40 AM · #22 |
Originally posted by ragamuffingirl:
Okay, what nobody has addressed is that the Hasidim like the Amish and Old Order Mennonites apparently have some religious prohibition against being photographed. This *art* has caused this man to be cast in a disgraceful light within his community. If simply being in public implies consent, are we saying that Hasidic Jews, Amish, and Old Order Mennonites don't have the right to go out in public? |
Regardless of their beliefs, these religious communities have to exist within the context of our society at large. If I happen to have a religious prohibition against looking at women showing their faces in public, does that mean all women should wear the burqua to avoid offending me? These people have the right to go out, but they also have to accept the loss of privacy that goes along with it.
Originally posted by ragamuffingirl:
Doesn't the constitution guarantee them the right to be secure in their person and effects? This picture wasn't shot from a distance, and he isn't part of a crowd ie street scene, a photographer walked up to him with a hidden camera and took his picture. If he'd seen the camera he would have gone the other way, or done something to conceal his face. |
Not relevant, he wasn't harmed, harassed, assaulted or even touched. As for his actions to avoid being photographed, do you think a person is able to avoid their image being produced anywhere? Should businesses be forced to switch off their surveillance systems everywhere when this guy shows up? What about tourist snaps? Like it or not, I bet this guys mug is on many security tapes, as is yours, mine and everyone elses, unless you live under a rock that is.
Originally posted by ragamuffingirl:
Therefore, IMHO, his constitutional right to be secure in his person and his freedom of religion have been violated. |
Well, that's your opinion, you're entitled to it, but until the law says otherwise, you're wrong.
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02/21/2006 09:10:00 AM · #23 |
Originally posted by Artyste:
Anyone spending $20 - 30,000 on this photo has something wrong in the head. |
Yeah...RIGHT?
I could crank out 20 to 30 of those a day....blindfolded!
With all due respect.
Diamond District...here I come!!!
WOOOOOOOOO HOOOOOOOO...and the Law shall set me free
I was offered $ for this one and had to say NO but now I can approach things differently. This is very good news indeed.
Message edited by author 2006-02-21 09:18:40.
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02/21/2006 09:38:07 AM · #24 |
Originally posted by pawdrix:
I could crank out 20 to 30 of those a day....blindfolded!
With all due respect. |
Steve - 20-30k per image is small time for someone who I am sure could knock out a few of these:
//www.tate.org.uk/servlet/ViewWork?workid=12146&tabview=image
//www.tate.org.uk/servlet/ViewWork?cgroupid=999999961&workid=12976
Don't sell yourself short. It worked for them!
Message edited by author 2006-02-21 09:38:27.
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02/21/2006 09:38:23 AM · #25 |
Has anyone found any similar articles, or any articles at all, about this sort of stuff in Canada?
:-/
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