Street Photography Runs Into New York Laws On The Right To Privacy: When Is A Photograph Of A Person 'Art' Protected By The First Amendment To The U.S. Constitution?

Street photography has a long and storied history and indeed some of the iconic photographs of the last 100 years were candid images of strangers taken by photographers roaming the streets of a city looking for a story, or the essence of the human condition or even art. Images such as Subway Passenger, New York City (1941) by Walker Evans, Alfred Eisenstaedt's famous V-J Day in Times Square depicting a sailor kissing a swooning nurse, and nearly the entirety of Henri Cartier-Bresson's magnum opus, The Decisive Moment, were all shot anonymously in public spaces. They are all unquestionably iconic and instantly recognizable by millions, but are they art? Or more specifically, when is a photograph of a person "art"? And what are the legal implications if that photograph is in fact "art"? These were central questions (although ultimately not the legally dispositive question) in a case involving one of today's most highly-regarded photographers and a collection of images he created on the streets of New York. But the answers to those questions, and more importantly the reasoning undertaken to get to those answers, given by a New York Supreme Court justice in a summary judgment decision1 and by a Presiding Justice of a panel of New York's Appellate Division in a concurring opinion on appeal illustrated the difficulty of having courts attempt to define "art" as a matter of New York law,2 especially when it involves taking into account technological advances that are greatly altering how art is created and disseminated or forms of expression that potentially allow courts to distinguish between fine arts and something a court may regard as less worthy of protection.

The Street Photography of Philip-Lorca diCorcia

Philip-Lorca diCorcia is a world-renowned fine art photographer whose work has been exhibited in major museums around the world, including New York's Museum of Modern Art and Whitney Museum of Modern Art, The Tate Modern in London, Paris' Centre National de la Photographie and Bibliothèque Nationale de France, and the Los Angeles County Museum of Art, to name just a few. DiCorcia attended the School of the Museum of Fine Arts in Boston and received his Masters of Fine Arts in Photography from Yale University, where he continues to teach today. While he has a varied portfolio, and has worked in both advertising and fashion photography, diCorcia first rose to prominence as an artist with a series of photographs taken in the late 1980s and early 1990s of male street prostitutes on the West Coast, entitled Hustlers. The series that followed, including Streetworks, A Storybook Life, Heads and Lucky 13, among others, solidified his reputation as "one of the most important and accomplished artists of his generation."3 DiCorcia's body of work has, according to one reviewer, "helped to redefine the tradition of street photography."4

It was while shooting the series Heads that diCorcia created the photograph that led to the litigation just mentioned. Shot in Times Square in New York from 1999 to 2001, Heads is a series of un-staged, candid photographs focusing close-up on the heads and upper bodies of random passersby. A contemporaneous review of the finished series described diCorcia's technique in taking the photos: "a strobe was affixed to scaffolding in Times Square; Mr. diCorcia stood farther away than before, using a longer lens. The result: crisp and stark portraits picked out of murky blackness—just heads, no longer cityscapes, the surroundings now blocked by the scaffolding."5 The scaffolding was purpose-built by Mr. diCorcia for this project; another contemporary review provides additional detail:

For more than a year and starting at the end of 1999, diCorcia turned an intersection of Times Square into a studio of sorts, complete with camera and tripod, strobe lights and industrial scaffolding, and an X on the pavement. Every time a pedestrian stepped on it, the stage was set for the strobe lights to initiate the photographer's intervention from a distance. His great ally in this enterprise was, of course, the light which in these photographs looks like natural light but is in fact entirely artificial. DiCorcia's ruse extends to the time of day as well; these photographs look as though they were shot at night because of their dark background, but diCorcia took all of them at rush hour, at that moment when people are most vulnerable to the push and pull of time.6

Out of "thousands" of photographs taken in this manner, diCorcia selected only seventeen for inclusion in the Heads series. The images are undoubtedly striking: "Picked out against the dark void, cropped to head and shoulders, strangely static although all are in motion, diCorcia's figures are reduced to types or—thanks to the pristine four-by-five-foot prints—elevated to archetypes: the Mailman, the Young Blonde, the Rabbi, the Black Executive, the White Teenager, and so on."7 Another reviewer commented,

The strobe functions like the light of revelation, a high-beam from heaven, and as usual, by stopping time, the photographs incline us to look at what we see every day but fail to notice, although the longer we stare at these people the more extraordinarily impenetrable they seem.

Unaware of the camera, they are absorbed in thought or gaze absently; they are how we act most of the time, walking down the street, in a crowd, focused on something or nothing. But enlarged and isolated, their expressions become riddles, intensely melodramatic and strangely touching.8

The seventeen photographs that comprised Heads were each made into large, poster-sized digital color prints measuring forty-eight by sixty inches; diCorcia created approximately ten editioned prints of each image, along with two or three artist's proofs. The Heads series was first exhibited to the public at the renowned PaceWildenstein Gallery at its Twenty-Fifth Street location in Manhattan from September 6, 2001 through October 13, 2001. To accompany the exhibition, the Gallery and diCorcia collaborated to create a catalog of the exhibition, which included reproductions of all the images in the Heads series. A "substantial" number of these catalogs were printed and distributed to the public.9 The print editions were all for sale and individual prints were priced between $20,000 and $30,000 each. Despite the exhibit running during a chaotic time in New York City, the show was by all measures a success, both critically and financially. The photographs in the Heads series continued to be displayed and offered for sale in the PaceWildenstein Gallery for several years after the formal close of the exhibition, and indeed continue to be offered for sale by other galleries and dealers today.

One of those "melodramatic and strangely touching" photographs exhibited as part of Heads was of a Mr. Erno Nussenzweig, of Union City, New Jersey. Nussenzweig is a retired diamond merchant and devout Orthodox Hasidic Jew; in fact he is a surviving member of the Klausenburg Sect, which was nearly wiped out by the Nazis during the Holocaust. Nussenzweig was apparently unaware that his photograph had been taken by diCorcia sometime between 1999 and 2001 and was also unaware that his was one of the seventeen images selected for inclusion in the Heads series and exhibited at the PaceWildenstein Gallery later in 2001. However, sometime in 2005 Nussenzweig became aware that his image was featured in the catalog published to accompany the Heads exhibition and that his likeness was sold as a fine art photographic print for thousands of dollars without his permission. He then retained a lawyer and wrote to PaceWildenstein and to diCorcia demanding that they cease the display and sale of his image. They declined to do so.

The Individual Right of Publicity and Right of Privacy

In recent years, the concepts of a "right of publicity" and a "right of privacy" as regards the use of a person's image or name have begun to enter the public consciousness, principally through high-profile cases involving celebrities such as Johnny Carson,10 Bette Midler,11 Dustin Hoffman,12 the cast of the television series The Sopranos,13 the estate of John Dillinger,14 television presenter Vanna White,15 and even the Times Square personality "The Naked Cowboy."16 While those...