Here is a case of an artist, a photographer named Philip-Lorca diCorcia, using someones image without permission, and profiting by that, even though the subject of the photo asked the photographer to cease using the photo because it runs counter to his religious tradition. See case information: http://www.bigredandshiny.com/cgi-bin/frameset.pl?section=news&issue=issue40&article=STREET_PHOTOGRAPHY_AND_25151059 (Pardon the sticky site!)
Is this really what we meant by a free society, to not respect each other's wants and needs? How is the photographer informed by the law but not by belief? Where do people get the idea they have a right to take another person's image?
From a Boston based art/music community site:
http://www.bigredandshiny.com/cgi-bin/frameset.pl?issue=issue40
"New York State Supreme Court dismissed a case contesting the ethics of street photography and whether it violates the rights of those individuals photographed"
[the person photographed without his permission and against his will] "Nussenzweig, an Orthodox Jew, claimed that the photographer using his image violated his First Amendment right to practice his religion on the grounds that his image constituted an engraven image that was exhibited and consumed commercially. However, Justice Judith J. Gische said that Nussenzweig's claim to privacy was not valid, finding that diCorcia created the photograph for artistic purposes."
He may have done it for artistic purposes but he certainly did it for profit: "The photographer said multiple prints of Nussenzweig's picture sold for about $20,000 each. The picture also was published in "Heads," a book that sold several thousand copies, diCorcia said. (boingboing.net/2005_07_01_archive.html)
Law.com claimed that the photographer sold 10 copies of the image for 20K-30K each - no starving artist there. "As commerce, the picture would be subject to the restrictions set forth in New York's right-to-privacy laws; as art, it would not." (http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1139565912319 )
In this case the photographer may have justified this as an act of free expression, but what if it was a photo of him? or his parents? What if he was doing something embarrassing? Does this justify the artist/photographer and any American's right to make money off another person's image without their permission? How far could this be extended? Could Nike or Levis or McDonalds run images of people on TV, say making fun of them without their permission?
While dismissing the case, Gische, the judge did say this: "Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive," she concluded. "The sincerity of his beliefs is not questioned by defendants or this court. While sensitive to plaintiff's distress, it is not redressable in the courts of civil law. In this regard, the courts have uniformly upheld Constitutional First Amendment protections, even in the face of a deeply offensive use of someone's likeness." ( http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1139565912319 )
What if Nussenzweig had just said - I don't want others to make a profit off my image. One, stop producing images of me, or two pay me whatever you make, because I did not give you permission. But he didn't - he just said 'no'. Isn't that good enough?
Here's Nussenzweig's attorney quoted on the subject:
"We claim that to take someone's picture without their consent is bad enough," said Jay Goldberg, Nussenzweig's lawyer. "But to then hang the picture in galleries, put it in books and sell it around the city without telling the person or obtaining permission is unfair and outrageous."
Wouldn't it have been more ethical for diCorcia to just respect Nussenzweig's request? What if diCorcia decided to sell the photograph of Nussenzweig for an advertisment such as a billboard or use in a film? Why does it being art or in a public place mean that a person's image is not their own? How more deeply offensive can it be and still be justified as art or good practice -- can it still be art worth all this money and hold no concern for the living person?
Are there other examples of this, where something of yours is not yours because it is art or in a public in a free society? What about medical footage taken in a state hospital of a woman having a baby? Could that be run on television without her permission? Or does she have a reasonable expectation of privacy?
In this case I asked Jeff Stein - a student in the University of Washington's Informatic program, in the Info344 class, and he told me that he feels our culture prefers to honor the needs and values of commerce over the needs of personal privacy. He said this is especially true in public spaces.
Personally if he were asked not to use a picture of a person he had photographed he would honor the request. I would too. What is artistic about not honoring people. Isn't the lack of regard for their privacy doing violence to them by ignoring their request?
How is it that people will resort to the law in such an instance and not use their own belief system to inform them of what is respectful or reasonable?
As the BigRedandShiny.com article concludes:
"From this, therefore, we can conclude that artistic rights under the First Amendment trump freedom of religion, also protected under the First Amendment - at least when considering privacy laws within the civil courts of New York. "
What I find a sad twist of fact is when querying 'diCorcia', the photographer's name, in a local warm and friendly public search engine you will receive an image of Nussenzweig, probably many of them, as I did.
Why is this case important? It's important because our sense of ethical judgment tells us it isn't right, while the law says it isn't wrong.
Freedom of speech is closely tied to freedom of thought which trumps freedom of religion.
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