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by
Philip Gefter

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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 random 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 sales and publication of the photograph, as well as $500,000 in compensatory damages and $1.5 million in punitive damages.

Head No. 13, 2000

Pace/MacGill Gallery, New York
The man in "Head No. 13, 2000," by Philip-Lorca diCorcia is Erno Nussenzweig. When he saw his picture in an exhibition catalog for diCorcia's "Heads," he sued the photographer and his gallery.

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. But to many artists, the fact that the case went so far is significant.

The practice of street photography has a long tradition in the United States, with documentary and artistic strains, in big cities and small towns. Photographers usually must obtain permission to photograph on private property — including restaurants and hotel lobbies — but the freedom to photograph in public has long been taken for granted. And it has had a profound impact on the history of the medium. Without it, Lee Friedlander would not have roamed the streets of New York photographing strangers, and Walker Evans would never have produced his series of subway portraits in the 1940's.

Remarkably, this was the first case to directly challenge that right. Had it succeeded, "Subway Passenger, New York City," 1941, along with a vast number of other famous images taken on the sly, might no longer be able to be published or sold.

 

Subway Passenger, New York City

Metropolitan Museum of Art, Walker Evans Archive
Walker Evans took a series of pictures on the sly in the subway in the 1940's; "Subway Passenger, New York City."

 

In his lawsuit, Mr. Nussenzweig argued that use of the photograph interfered with his constitutional right to practice his religion, which prohibits the use of graven images.

New York state right-to-privacy laws prohibit the unauthorized use of a person's likeness for commercial purposes, that is, for advertising or purposes of trade. But they do not apply if the likeness is considered art. So Mr. diCorcia's lawyer, Lawrence Barth, of Munger, Tolles & Olson in Los Angeles, focused on the context in which the photograph appeared. "What was at issue in this case was a type of use that hadn't been tested against First Amendment principles before — exhibition in a gallery; sale of limited edition prints; and publication in an artist's monograph," he said in an e-mail message. "We tried to sensitize the court to the broad sweep of important and now famous expression that would be chilled over the past century under the rule urged by Nussenzweig." Among others, he mentioned Alfred Eisenstaedt's famous image of a sailor kissing a nurse in Times Square on V-J Day in 1945, when Allied forces announced the surrender of Japan.

 

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