Thursday, May 26, 2011

Sidewalk Art

Food for thought: Next time you clamp up a few speedlights on a public street, it could lead you all the way to the state Supreme Court.

Got your attention? Keep reading...

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Earlier this week, my friend JoeyL tweeted about NYC photographer Philip-Lorca diCorcia, and it really got me thinking.

A few years ago DiCorcia clamped strobes up under a scaffolding on a New York City sidewalk, thus turning the space into his own private public studio. He then photographed people as they passed through, making a series of beautiful portraits that were at once banal and thought-provoking.

And that's where the interesting starts…
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His video, above, explains it pretty clearly. I watched it, did a little Googling and spent the next half hour thinking about it -- ending up with ever more unanswered questions as I went.

First off, the flash geek in me loves that he did this with a few Vivitar 285(!!) speedlights. I would have thought this was a bigger production values thing, a la the amazing work of Gregory Crewdson. But when you think about it, under the scaffolding it is pretty dark, so you don't need a lot of light. And the small strobes hide nicely.

Such an elegant approach, creating something so layered and interesting with such a minimal amount of gear.

Second, what an interesting way to photograph lit portraits of people without having to, you know, actually talk with them. Personally, I have never had a problem in that area. But I know some of you introverted readers must be smacking your foreheads right about now.

But then there's the big issue -- privacy.

Sure, legally he is okay. Although I was surprised at how dicey it was. (Three appeals? Scary.)

And clearly, he'll find a lot of advocates among the readers of this site. But where is he ethically? That's a question you cannot answer unless you have put yourself in the shoes of the subjects. How would you feel if you were surprised to find yourself a subject of his exhibit?

I keep going back and forth. And then I think, maybe he could have made the situation less muddy by finding the subjects after the fact and interviewing them on what they remember thinking about when they were walking down the street the day before.

People are creatures of habit. I'll bet he could have found many of them by posting a printout and email address under that same scaffolding for a few days. Would that notification and potential layer of info have made the exhibit more ethical and interesting at the same time?

It is not like he needs permission, legally, to exhibit the images. The courts decided that in a rather extreme set of circumstances. One of his subjects, Erno Nussenzweig, was an Orthodox Jew and sued diCorcia on what I am sure (to the subject) seemed a valid reason1.

Would prior notification (before the exhibit ran) have changed the ethical balance? Is there an ethical balance to be concerned about? How would it be different in other countries -- your country?

Open mic in the comments. But please, be respectful.
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(Photo at top ©1999 Philip-Lorca diCorcia. See more of diCorcia's work, here.)


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175 Comments:

Blogger Mr V said...

I think i would have found the people and asked them if it was ok. I wouldn't mind getting my pic taken but I know a lot of people would.

May 26, 2011 9:13 AM  
Blogger MarcWPhoto said...

I'm okay with him taking pictures in a public place, period, full stop. (Although if his strobes hurt somebody's eyes or startle them and they spill coffee all over their kid or whatever, then that's his fault, it's not cool, and he needs to be responsible.)

I'm also okay with him displaying the pictures. Again, public place.

What I'm not okay with is him selling the pictures as pictures, and not as reportage or historical documentation, without permission. Making money from pictures of ordinary people doing ordinary things, when neither they nor their actions are newsworthy, is wrong. Again, period, full stop.

He got lucky in that NY case, and I think it was probably rightly decided under NY law much as I hate that. However, in lots of other places, it wouldn't have worked, and the laws are changing (slowly) to give people more control over the commercial use of their likenesses.

There's always going to be grey areas between what constitutes reportage/historical documentation, and what constitutes exploitation of likeness. And that's fine. That's what courts are for. But if we as photographers believe that our photographs have intrinsic value, that they don't want to be free just because they're on the Internet, then we have to acknowledge that other people have similar rights in their own likenesses, and that exploiting them is wrong. "He was there so I took his picture and now it's mine" is no more ethical a position than "the picture was on his website so I took it and now it's mine."

May 26, 2011 9:29 AM  
Blogger R. Kneschke said...

Same thoughts here. It always creeps me out to see how loosly interpret "Street Photographers" the right of privacy in the name of "Art".

At least you could ask the subjects _after_ the shoots if the give you permission to use the image. If they don't: Delete the image. Simple as that.

May 26, 2011 9:32 AM  
Blogger Brian Hursey said...

I think ethicly I would of never done it the way he did it. I would of probibly positioned my self where they would walk by me after the picture was taken and show it to them explain that I was an artist and ask for permision to use the photo for an art exhibit and that I would provide them a digital of the image for their own use. I would have a very simple model release for them to sign. Sure you might not have 3000 images that you could use but you might get that 17 you want to exibit.

I know in public places I dont technicly need a model release but ethicly I do not sell images of people even in public that are recongnizable without a model release.

May 26, 2011 9:39 AM  
Blogger RedTerror said...

I am curious why the fact that the man who sued was an orthodox jew was a relevant detail in the story. The video points it out as a side-note (and the post echos it in a similar side-note style), but I don't follow why it's important.

If the plaintiff were a black man, would that have been pointed out?

May 26, 2011 9:53 AM  
Blogger TD said...

I've been really surprised that this kind of things could happen on the US side.
Street photography will probably become nearly impossible to do on your side, just like in France.
I have the bad feeling that the related story is more a financial rather than an ethical concern (just a personnal opinion).
The whole story reminds me what happened a few years ago with the picture of a volcano in center of France. The picture was taken from the road and included a fence and a field in the frame. The owner of the fence argued that this was a violation of his private "space" and went on with his lawyer. I can't imagine what could have happen if the guy would have been in the frame, even far away and unrecognisable...
That said, Cartier-Bresson would probably work differently today...

May 26, 2011 9:56 AM  
Blogger Chris Parker said...

Sure, he had the right, and sometimes the best way to get "honest" moments is to shoot first, but if you are going to use people for your own project, common courtesy is to talk to them and get their permission. We as photographers would more than likely let people use our images for free if we were asked and agreed to their use, but taking our photos without permission is not acceptable, and taking someone's image and using it without their permission is not acceptable either.

May 26, 2011 9:57 AM  
Blogger paulkchr said...

Interesting that our phones can be tapped without a warrant, but the courts wrangle with street photography. These same people are photographed everyday at the ATM, as they use public transit, and while they shop. This is just another example of the decline in public space.

May 26, 2011 10:02 AM  
Blogger Jeff said...

It is interesting, in the NY Times article, the plantiffs lawyer states that the plantiff has lost control of his image. Any time you are in poblic you risk this happening. Not only with still images, but with all of the video surveillance in use. It is part of society.

May 26, 2011 10:04 AM  
Blogger Dave-Keller Photography said...

Very interesting, I am by nature, a private person. I’m not sure how I would feel about having my picture displayed without my knowledge. On the other hand, I find it very disturbing that this made its way to court – and had several appeals. It is not that I don’t understand the person who felt violated (I’m going to give him the benefit of doubt that he did actually feel violated and was not simply looking for a way to retire early) but I am disturbed at what this could do to the rights of an artist. Where could this go from here? Will we need to get an architect’s permission to photograph his building? Will we need to have written permission from the National Park to take a picture of the wildlife? Really makes a person think, where will we draw the lines? We are artists; we take pictures, that is what we do. We also need to practice our art in ways that will not limit the rights of photographers after us. Interesting times…

May 26, 2011 10:05 AM  
Blogger doebtown said...

I donno . . . I was living in New York in 2001 and watched this piece wondering if I might have walked under his Speedlites. But I think you've got to be kind of oblivious if you walk the streets of NYC these days and don't acknowledge the possibility that your photo may be taken from . . . ANYWHERE.

There are still places in the world where you have a reasonable expectation of privacy. Times Square is not one of them.

May 26, 2011 10:08 AM  
Blogger GT said...

funny - i was actually thinking about doing something like this... and didn't realize it has been done (and prob done better) more than a decade ago!

that this case even went to the supreme court is ridiculous... street photography has always been legal as long as you're not using the images for advertising purposes...

May 26, 2011 10:13 AM  
Blogger GT said...

oops i forgot to comment on the ethics part...

but yea i think it's completely ethical as well... if google maps can go around the country taking photos of anything on the street then why can't i...

though truth is... if someone was really offended that badly... i'd likely just remove that image from the collection...

May 26, 2011 10:16 AM  
Blogger William Beem said...

We're under the view of cameras every day and people never complain. Think about cameras in stores, gas station, and other surveillance cameras spread around our various communities & business areas.

Some amusement parks integrate video cameras as part of the experience. You're on public display and a photo of you is for sale as soon as you get to the end of the ride. If Disney can display a candid photo of you - and sell it to anyone who wants it - without upsetting anyone, why are people upset by this display? What sense of privacy to people really expect when they go out in public?

May 26, 2011 10:17 AM  
Blogger Raleigh Beringer said...

I agree that there is no longer any reasonable expectation of privacy in a public place any longer. I have to say that its exactly this type of paparazzi ambush technique that give all photographers a bad name. While the setup and candidness of this project was nothing short of genius! In my opinion a follow up with the person(s) in question would have been ethical, moral, and dare I say polite thing to do.

May 26, 2011 10:19 AM  
Blogger Helen said...

Hmm a tricky one. I love the photos in the series and they fall in a long line of photographers taking stolen photographs. I think there's something lovely about these unposed shots. My favourite photographer who did this is Miroslav Tichy from the Czech Republic who dressed in rags and used home made cameras to take photographs of women. Somehow I think I wouldn't mind someone taking my photo in this way if the photo was a good one. Which is ridiculous and suggests my idea of 'privacy' is actually about controlling the way people see me; a pretty futile endeavor!

May 26, 2011 10:24 AM  
Blogger gretsch said...

tbh I'm as much in two minds as you are. Even if I had the idea to do this, I would have assumed it was a legal issue to exhibit the photos with release forms or suchlike, but then I'm no expert on that.

Morally? I'd be pretty chuffed to have my portrait taken and hung for free, esp if it's as good as the one above.

But I've learnt I'm not very often the vox pop! How about the rest of you?

May 26, 2011 10:27 AM  
Blogger Capt.Nemo said...

Isn't this valid for any street photography?
Many do this (some good), would like to get their experience and way of working.
If he makes art, one thing, if he makes money, probably a whole different thing alltogether.

May 26, 2011 10:29 AM  
Blogger Ryan said...

David,

I think this is a good example of "I am a photographer not a terrorist". The law in many countries states that there is no reasonable expectation of privacy. It's that same law that gives law enforcement (or anyone for that matter) the right to rifle through your trash once it's been placed out for pickup.

I wasn't able to find wether or not DiCorcia offered to remove the piece from his exhibit. As an artist he could have been sensitive to the religious views of his subjects.

If it were me, I would defend my right in court as DiCorcia, but I would also have offered to remove the work from the exhibit, and perhaps donate some of the sales proceeds to a Jewish charity of some kind.

I truly fear the day (that I hope never happens) when there is a ban on such artwork. DiCorcia would never have been able to capture the images he did any other way.

May 26, 2011 10:31 AM  
Blogger Michael Sebastian said...

It's pretty clear that people in view on a public street, and photographed from public property, have no expectation of, nor legally enforceable right to, privacy. I don't see that privacy is really this issue, all squawking aside.

One might reasonably argue, though, that having an explosion of light go off in your face as you transit a darkened "tunnel" under a scaffold, where you don't expect it to happen, might constitute a mild form of harassment. It certainly makes for compelling photography; I love the beautiful portrait of the woman in David's blog post above.

Hard to believe, though, that he didn't violate some NYC ordinance or another (legality/constitutionality of those aside.)

May 26, 2011 10:37 AM  
Blogger PaulL said...

The reason we have certain rights is because people pushed the boundaries a bit, and brought the issues to the courts to be decided. Which is just what he did. Frankly, I'm awfully glad he appealed three times and stood up for himself -- had he rolled over, all of us photographers would be worse off. I salute his courage and determination...and the pictures are hauntingly good.
Paul
http://www.makingitasapro.blogspot.com

May 26, 2011 10:41 AM  
Blogger SJCT said...

As we all know, having the legal right to do something doesn't always mean that an action is ethically right. Personally, I never take a picture of someone (purposely) without their permission. I wouldn't want anyone to take my picture without my permission, so I give others the same courtesy.

May 26, 2011 10:42 AM  
Blogger Marc said...

First, I love the idea and the images! I can understand some people getting upset, however I have no problem with what he did. He was not hiding and it was in a public place. His motivation was to produce art. The images did not exploit the subjects in anyway. They simply froze a moment that any number of people in the area were witness to. I agree, in public, there is no expectation of privacy.

May 26, 2011 10:42 AM  
Blogger angbor3d said...

What i can talk about is the law here in germany. It's very hard but not impossible to do streetphotography. If you're going to do it strictly by law you have to ask the subject even before even think about grabing your camera. What happens is that in 80% you get a "No thanks" as an answer but in 99% you will destroy the scene by asking. What you can do is going to take a little risk, shot some pictures an then ask for permission, try to get in contact with your subject, try to get an email-adress and the nicely ask for permission to publish and use the pictures. And at least maybe get a release for the pictures and use it. I did this some times but not often enough it`s always hard to ask because people here have some kind of a reserved attitude for being in this strange internet thing. But you have to respect the subjects opinion about having their pictures published in any kind of way.

May 26, 2011 10:55 AM  
Blogger James said...

How does that saying go - "an ounce of prevention = pound of cure"?

Legally, I would agree he is within his rights. Personally, I like your thought on posting and seeking feedback.

May 26, 2011 10:57 AM  
Blogger Lux Umbra said...

I've had very serious concerns with this lawsuit since I first read about it years ago. My understanding is that the judge deemed that as long as the original intent of the photography was artistic than it was okay to display the images without consent or payment to the subjects. My issue is that he is selling these prints for tens of thousands of dollars. The images are in a book. They are being used to promote his gallery shows all over the country (and I assume, world). This, to me, is clearly a commercial venture at this point. While the original inspiration may be artistic (I think it is) the subsequent actions have gone far beyond that.

Professional photographers (of which I am one) often complain about not being treated with respect by clients. It bothers me when I see examples of photographers not respecting the subjects.

Speaking as a commercial photographer (I understand that many art photographers come from a different mentality) I think that this body of work represents a low point in a profession that I care deeply about. With the exception of legitimate news coverage, I don't feel that people should just be "available" to use so directly as a money maker for an artist. If I make a portrait of someone I think that they should a) be allowed to decline and b) be compensated in some way, whether that's by a sincere "thank you", a print, or cash.

my two cents

May 26, 2011 10:59 AM  
Blogger Bo said...

I do think this is a cool project. One photography project I did for a class once was taking candid-style photos of people on the street. It interested me that most people didn't even notice the camera or that they were being photographed. Only a small percentage actually did a double-take.

I can't answer the question about ethics. Legally he has the right, but if it was me taking the photos I'd at least hand a biz card to the people as they walked buy.

If I saw a photo of myself being used as art, it wouldn't bother me as much as it would if my kids and wife were in the photo. That treads on a thinner line, at least for me.

May 26, 2011 11:03 AM  
Blogger David Hobby said...

@Red-

There are specific issues at play with Orthodox Judaism and photography, which complicates the two different points of view, if not the actual law. More info here:

http://www.richardsilverstein.com/tikun_olam/2006/03/19/street-photography-and-the-prohibition-against-graven-images-when-artistic-expression-clashes-with-religion/

May 26, 2011 11:11 AM  
Blogger Jim said...

Here in Montreal, the legal situation is quite different. We are prohibited by legal precedent from selling photos of people without their permission. Even though the pictures might have been taken in a public place, the subject retains control over the use of images of themselves, unless the images are used for journalism.

While this is a definite restriction of the freedom of photographers, I am sympathetic. There's is something anti-social about diCorcia's technique. And if the photographer were to make money from an image of me without my consent or without compensation, that would both me.

Still, Montreal remains a great city for street photography, and the one case that set the legal precedent hasn't been applied again. So it remains a grey area.

May 26, 2011 11:17 AM  
Blogger sunith said...

I live in India. Hundreds of photographers come from abroad to capture the colorful streetlife, the poverty,etc. Only a small percentage would actually ask for permission before shooting, and almost never would explain what the images would be used for. There are countless exhibits around the world depicting these images, but I doubt whether anyone has gone ahead and taken model releases from their Indian subjects. I stayed in Dubai for a bit, and while attending the GPP workshops, one of the clear instructions were not to shoot any local women without their permission. You can easily get dragged in a cell, if someone complains. So I guess, the ethical consideration varies from country to country.

May 26, 2011 11:34 AM  
Blogger John Goldsmith said...

If you don’t take pictures of how we look in public and how the buildings look in public and what we are doing generally, if you do not take those pictures, who the hell is going to take them? -- Fred Herzog, Street Photographer

While I respect the rights of his subjects, I wholeheartedly agree with Mr. Lorca diCorcia. What he has done is document a public street. It's what photojournalists do each and every day. I'm sure most people recognize this and value it provides to a society. Freedom of the press extends to documentary and street photography, as they are essentially just subsets of the same . If we begin by restricting this photographers actions, we must begin restricting the rights of all photographers, including news agencies. The consequences would be profound. Documentary photography is an important part of who we are as a society. People living in a democracy who value their freedom must recognize this.

Documentary photography is cultural, historical and anthropological - and artistic. I am fascinated by looking at historical photographs of our cities and people. We all are, I would guess. By restricting who and how we photograph the streets, we will certainly do more harm than good to our collective rights.

While PLD's photos may have some obtuse historical value now, in the long view, say 100 years from now, these "Heads" might give future generations an important look at the past. In other words, they have value that is far and away more than what can be earned in a gallery. Let's be clear: selling photographs to make money in a gallery or otherwise is a rather ridiculous idea, except for the few elite. Most of us who do it spend far more money on making prints and framing than actually earning dollars. It is a risk and we do it because we enjoy sharing our art.

For what it's worth, though I am a US citizen, I live in Canada where in 1995 a 17 year old girl sued a street photographer for a photo he took of her within the province of Quebec. The case made it to the Canadian Supreme Court which ruled that the photographer did not have the right to photograph AND publish her likeness in a small literary magazine. That said, the damages she was awarded were nominal at best, if I recall, though I'm sure the lawyer fees were something entirely different. The ruling extends only to the French speaking part of Canada, at least, that's how it has been treated thus far. It is a similar law to France. Nevertheless, the law concerns me as I shoot street photography within the country.

As far as candid photography goes, there is no means of getting a release. A photographer simply cannot take a photo and run up to every single person to ask them to sign a release when the photo may not likely be very good and generally has no commercial value. In short: it's completely impractical. I have one photo with some 30 people in it. How could I possibly ever ask all of those individuals?

Finally, the genuine moments would never be the same with a model. There is something magical about these un-doctored and candid moments. While this is one example of street photography, there are many more where the scene could simply not be recreated. And even if it could be: the basis of its reality would be lost.

May 26, 2011 11:43 AM  
Blogger Ken Gray Photo said...

Philip-Lorca diCorcia is a brilliant artist. It is sad that he had to waste even a nanosecond defending his art. But that has been the case through out history.
The world needs to relaxe and accept the fact that we are scanned, videoed, and yes...photographed in public.
I don't lose sleep over it.

May 26, 2011 11:48 AM  
Blogger Ito said...

Hi David, I live in Montreal, Canada, and here, unfortunately, it is illegal to publish photos showing people, even if in a public space, unless it can fit in some photojournalism / event coverage story or you have a release form (it is, of course, legal to take the picture). This is only in the province of Quebec though, since in the rest of Canada I guess the situation would be pretty similar to the one in the US. The good news is... people just do it anyway : )
There is actually a documentary on this (5 years old or so), produced by a photographer who lost his case in court. It focuses mainly on Quebec and France and unfortunately I couldn't find any English version. Here is the link to the original version in French. And here's a text, in English, on the photographer's website.

PS: love DiCorcia's strangers' portraits.

May 26, 2011 11:52 AM  
Blogger Ash said...

I saw an exhibition of his photos in South Carolina a few years back, and was immediately taken with them.

And frankly, he's completely in his rights to take and use these photos. You have no expectation of privacy in a public place. Deal with it.

May 26, 2011 11:54 AM  
Blogger RedTerror said...

@David - thanks very much for the link, I think it fills in a major gap in the story about why the man felt so strongly about his image being used. There are still open questions about motivation given the size of the damages sought, but at least it provides some context based in jewish law.

Interesting stuff!

May 26, 2011 11:56 AM  
Blogger Dave Bittner said...

I'm intrigued that some commenters seem to be making a distinction between photos as "art" vs. "commerce." Why can't they be both? Does the fact that a Picasso can be sold for millions make it any less respectable as a piece of art?

He made beautiful photos, as art. People like them and offer to buy them. Are they suddenly less artistic because of they are commercially desirable?

Let's not forget, artists need to eat, pay rent, buy clothes, etc.

May 26, 2011 12:02 PM  
Blogger Jake said...

@RedTerror - his complaint was that it violated his right to religious freedom by making a "graven image."

I agree with the bulk of the sentiments here - there's a big difference between doing "art" for the sake of it and making it commercial. I think he crossed the line when he opted to sell the images without the model's permission or prior knowledge.

May 26, 2011 12:03 PM  
Blogger Dave6163 said...

David good questions raised.  Like many I am surprised that the case has gone on so long.  Public is public and let's hope this holds.  I already get a little worried about what public official would jump out from behind a bush as I am taking a picture of a building or bridge.  Photography is not a crime and I realize we are not talking about structures.

This does really fall into yes you can, but should you? I have encountered  many situations over the years of taking photographs of the Amish in Pennsylvania. In general, they also do not want to be photographed and I have respected that situation.

I wonder how much of this would have changed if the images were video and not stills?

May 26, 2011 12:04 PM  
Blogger jigsaw88 said...

I believe here in Canada photographers can take pictures in public but can't publish them anywhere or sell them unless the faces are unrecognizable or you have a release.

Personally, I would love my ugly mug to be in a gallery on a wall but I would at the very least be invited to its showing and little beer......Canadian beer or European beer anyway ;) jk

In this case I would remove the picture if someone came forward and said they uncomfortable with it out of respect.

May 26, 2011 12:08 PM  
Blogger Ryan Carl said...

Below is a link to the court decision. It's a very interesting read. It seems Dicorcia's victory was helped because the court determined that both he and the gallery were recognized purveyors of fine art. Which means that his photos, however they were obtained, were considered to be protected speech and not subject to legal limitation by anyone, even the unwilling subjects of the photos.

@Red- The complaint was in part based on an orthodox Jewish exception to having one's image used in advertising. The orthodox Jewish man's image was on the cover of the catalog and used as the print ad image.

http://www.nycourts.gov/reporter/3dseries/2006/2006_50171.htm

May 26, 2011 12:25 PM  
Blogger Ryan Carl said...

Below is a link to the court decision. It's a very interesting read. It seems Dicorcia's victory was helped because the court determined that both he and the gallery were recognized purveyors of fine art. Which means that his photos, however they were obtained, were considered to be protected speech and not subject to legal limitation by anyone, even the unwilling subjects of the photos.

@Red- The complaint was in part based on an orthodox Jewish exception to having one's image used in advertising. The orthodox Jewish man's image was on the cover of the catalog and used as the print ad image.

http://www.nycourts.gov/reporter/3dseries/2006/2006_50171.htm

May 26, 2011 12:27 PM  
Blogger Andrew L. said...

I think what the issue here is what is legal, what people perceive as legal and ethics.

By taking the pictures, the photographer did not do anything illegal.

What starts getting into the grey area is what you do with the images. If you take them for your portfolio, for editorial/news use - then that is one set of legalities. once you start selling the images or start using them for other uses, then that is a whole other set of legalities.
And ethics have never been about the laws that men create, more of an understood code of conduct that everyone follows because they feel it is the right thing to do.

Laws regarding expectations of privacy are actually pretty clear here in the USA and with a quick internet search or a free consultation with an attorney you can get all the information you need to understand.
Remember, ignorance of the law is no defense.

Regarding, "losing control of his image"...you have to have control of your image to begin with. Unauthorized use would be a better argument, in my opinion.

we must be very careful where we want the legal lines to be. We also must think with our heads and not our hearts in situations like this.

May 26, 2011 12:34 PM  
Blogger SJCT said...

Just because something is legally okay, doesn't mean that we are ethically okay to go ahead with an action. Personally, I don't want my photograph taken by a perfect stranger without my persmission. I give others the same courtesy when taking photographs.

May 26, 2011 12:36 PM  
Blogger David Finkel Photography said...

Like many others in this forum, I have very mixed views on this issue.

One thing I've not seen discussed is the issue of whether or not this should qualify as "street photography" in a "public" place when the photographer has rigged lights. Is it still "street photography" if you effectively make an area your own studio? What if he had deliberately changed the backdrop to make some ironic message? Bottom line, I feel that street photography should be 'as is'. If an average person had stood next to his camera, they could not have taken the same images, because they could not have taken the same shots. To me, this makes the "public" location not a clear cut case - now at least some aspects of it are private.

Next - legal vs. ethical. We in the US live in a society that for the most part legally leans in favor of freedoms. However, just because you can legally do it, doesn't mean you should. Or that you won't be sued. It is natural that these limits will get periodically challenged in courts and it part of the price Mr. diCorcia has to pay (I guess we now where some of the proceeds of his image sales are going).

The relevance of the religion of the lawsuit subject was not relevant to the posting here. However, it was relevant in the NY Times article as they touched on the plaintiff's religious objection. Honestly, I think David should either have left out the person's religion, or included the basis of the objection (which he did in the comments). Note that many other religious groups have similar objections.

Regarding the plenitude of public cameras such as surveillance cameras. It is true we are now "photographed" in public more than ever (talk to people who live in London!) However, in this case, I don't believe the CAPTURE of the image is as much in question as the USE of the image. If images from surveillance cameras were showing up in galleries and being sold for profit, that might be different. These images seem clearly taken with the intent to make money from creating an artistic expression.

The images look great and they are very effective at their intended purpose. I really like the photos, but think Mr. diCorcia stepped over the ethical line. I understand the problem with seeking permission to make a candid image. However, I feel he should have put equal effort AFTER taking the images to contact the subjects (if he was pressing the shutter remotely, why couldn't he approach the subjects immediately post capture and discuss what he had done?)

Thanks for making us think about this!

May 26, 2011 12:38 PM  
Blogger M said...

I am not a lawyer! However...

In a podcast a few years ago a prominent photographer discussed his sale of images of people from whom he had no model release nor permission to use their likeness.

Reiterating (often) that he was not a lawyer, he indicated that it was his understanding (from consulting legal sources) that when he makes a photograph of someone he can (and does) sell that image as artwork without the subject's knowledge or permission. (Artwork - not commercial product endorsements.)

One conclusion from that podcast was that photographing a celebrity or sports star, and selling that image as a poster, is completely legal, and the subject has no recourse.

BTW - I am not a lawyer.

May 26, 2011 12:41 PM  
Blogger Lux Umbra said...

@ William Beem - Of course our pictures are being taken every day. What bothers me is that he is profiting immensely from the fact that he is using images of people without their permission. The images have been used to ADVERTISE the show and the gallery. If one of the cameras got a picture of you picking your nose while you were walking down the street with your arm around your best friend's wife, would you have the same opinion? Also Disney World is private, not public, so I don't believe that that comparison holds.

May 26, 2011 12:57 PM  
Blogger skyMyrka said...

My personal take on it is that photograph is much more than an image. It is the photographer who captures, however, it is the subject that makes the whole process possible.

There is a big difference between legal and ethical, and I think that if homage is not paid properly in ethical regard to the subject, that in turn devalues the work. Ultimately, the result is legally cohesive [sometimes] technically perfect executed, but opportunistic image.

There are exceptions, but generally, that's how I feel about it. In this case, this beautiful photographer's work to me personally is devalued in that regard.

May 26, 2011 1:15 PM  
Blogger David Hobby said...

@David Finkel-

Good point. I just added a footnote/link.

May 26, 2011 1:17 PM  
Blogger raf said...

I've been a "street photographer" now for some twenty years, always carry a professional level camera and lens and post my photographs to one or two of my own web sites.

Most of the photographs are not very controversial, people preparing for parades who expect their pictures to be taken by the many photographers present (I never take posed photographs, but always with the subject unaware of the camera), but the others are taken in public places where people are totally unaware of my presence.

My own thought is I typically never post or really look for an unflattering picture, don't use them for commercial gain (I have sold individual prints), never take pictures of children without a parent's permission but these are my own "rationalizations" and not shared by everyone.

I'm (not surprisingly) a firm supporter of the right to take pictures of pretty much anyone or anything in public places, but this will always be a subject of contention.

May 26, 2011 1:27 PM  
Blogger Myron said...

I am a bit confused, as to why the gentleman didn't realize that his picture was taken when there was a bright flash and a photographer with a big camera was standing right in front of him. If he was that tripped out about his picture, why didn't he speak up at the time? I think that there needs to be a bit of personal responsibility on both sides of the relationship however brief it is.

May 26, 2011 1:51 PM  
Blogger MortonPhotographic said...

We are slowly (quickly?) loosing our right to photograph anything, anywhere. Can't take a pic of someone, need a model release. Can't take a pic of any given area because there are too many corporate logos or something is copyrighted. Can't shoot here, because security says so. Gotta pay to shoot over there.

Do you love to look at old photographs of places and people in those places? Well we aren't going to have any good photographs like those of our time because of all the limitations set on photographers. Public places should be open for business, period.

At most I think people should have an after-the-fact right to request their photo not be used for non-commcercial works, or maybe get some kind of compensation. Hey, maybe you have a good reason... But you can't capture raw, natural images like these if you ask first. And to say you can't photograph anyone because some people might not like it is simply wrong.

May 26, 2011 1:58 PM  
Blogger dwphotog said...

How can we ethically argue for the rights to the photos we shoot without asking for approval from our subjects?

I would be shocked and angered if an ad agency used one of my images without authorization. Why should a person walking under a bridge feel any differently about the use of their face or body?

May 26, 2011 2:05 PM  
Blogger G3 said...

I'm a little disappointed, although not surprised, that both appeals were upheld on the basis of timeliness of the lawsuit rather than the issue of first amendment rights. While two of the justices on the Appellate Division, First Department wrote a separate opinion upholding the decision on the constitutional grounds, it was only two of five.

Overall, any issue of ethicality/acceptability is societal and is neither stagnant nor uniform among individuals. The reason I suspect the appeals courts took a 'cop-out' on statute of limitations.

(opinions are like... everybody's got one and they all stink)

May 26, 2011 2:21 PM  
Blogger Will said...

Excellent comments all around that verify the ethical shakiness of the situation. To simplify my thoughts I agree he has the right but I would have gone out of my way to contact the subjects. I do that myself in NYC and like to talk after the fact in the interest of providing the subject with a picture they might enjoy.

I do believe the argument here is really about usage. We are constantly being videotaped and photographed but as David Finkel noted those aren't ending up in galleries. A park in my NYC neighborhood has a police camera, with flash, that triggers when you walk by. I'm sure the shots don't look as nice :). There are signs warning you that the area is under surveillance. After the flash you are even told "this area is under surveillance, your picture may have just been taken". It might be a ridiculous for street photography but maybe having a recording go off after the shot isn't a bad idea. At least the subject has the immediate ability to voice their opinion. I'm sure most people would allow it.

May 26, 2011 2:23 PM  
OpenID ishootfood said...

Just to play devils advocate, let me share my thoughts. thousands of photos and years to shoot them, only to get 7 good ones? that doesn't feel like "serendipity" to me...

we as photogs should take a little responsibility too and stop using the "no reasonable expectation of privacy" concept to just do anything we want with a camera on the street...i mean, isn't that what the paparazzi do?

How hard would it have been to take the time to have an assistant with you,or two, and simply ask the people you shot if they had an issue with you using their photo? I mean, that's just good preparation, right?

but if you are going to take someones photo, and then sell that photo for money without their consent, well, that is just wrong. I'm not going to go to a club with my zoom h4, record the band, and then sell that song online.

That person owns their image,and if you are going to profit from it you need their consent.

i'm sorry, but on this one, i just don't get it. To me its someone who took a large number of photos of people without their consent, only got 7 good ones, and then tried to profit off of those peoples image. I just can't get on board with this one.

May 26, 2011 2:25 PM  
Blogger nvonstaden said...

Is it really street photography when you set up the light for it?...The art is finding the right light...That sliver of morning or afternoon light between buildings on just the right subject.

May 26, 2011 2:29 PM  
Blogger MarcWPhoto said...

"M:"

I am a lawyer, but I may or may not be licensed to practice in the jurisdiction(s) of those reading this, and nothing in this (or any) post should be construed as legal advice.

What that person told you a lawyer told them is mostly correct under the old common law rules about likeness use. There are some nuances but under the traditional standard that's how it used to be.

However, there have been both modern common law decisions and statutory rules created which greatly change the situation. No reputable lawyer would try to give even general illustrative advice on this topic any more, other than to point out the *fairly* bright-line protections of the First Amendment. It's just too jurisdiction and fact dependent.

May 26, 2011 2:55 PM  
Blogger David Hobby said...

Um, to a certain few folks:

When I said at the end of the post, "Please, be respectful," what I apparently should have added was, "If you are not respectful, please do not expect your comment to be published."

May 26, 2011 3:11 PM  
Blogger TiMpWeB said...

Photographers MUST be allowed to record public life and the world around them without constraint...

Major museum collections and exhibits, documentary tv/films, history books, news archives.... are full of street images taken without getting the permission of the countless individuals depicted within them... the rights of photographers to practice their art is an integral and essential part of how we as a species have recorded our history for the past couple centuries.

Images of city streets, markets, events, personalities and conditions throughout history give us so much of our sense of personal identity and connectedness to our ancestry. Those photos are one of the primary tools historians and modern archiologists use to gain insight into the human condition generations before any of us were around.

Imagine the story of the Hindenburg without the photos that were published with it... what if those photographers were not allowed to shoot there because it was near an airport or because it would have been 'insensitive' to the families of the casualties there. the emotional impact of the disaster wouldn't have been accurately carried through history as it is today.

That last example is a slight stretch, but not really far off from what's happening today to photog's rights.

May 26, 2011 3:28 PM  
OpenID tnorm5828 said...

I, in some sense, have been a street photographer for over 15 years. I've worked as a photojournalist photographing people in the public for publication in newspapers and magazines. There are ethical rules I abide by and I don't see this photographer as having broken them. I take photos of people unaware that they are being photographed. The only difference between me and him is that afterwards I would go up to that person or their guardian and ask permission to use the photographs. They would sometimes want to see a photo or two but usually they had no idea what the photographs looked like. It would be assumed that I wasn't out to make anyone look bad.
Though the word is mundane and boring I understand the artists desire to do something along these lines. The people are in the public and have no assumed right of privacy in the public. The only part I have difficulty with, and which isn't entirely explained, is if the photographs were for sale. Then they would be commercial works and need the subjects authorization in my opinion. Otherwise I see no reason to have to talk to the people beyond pure common courtesy.

And to me that is what it comes down to. Common courtesy. Did he defame his subjects in any way? Not as I can see, but he did treat them inappropriately. His whole work is based on the faces and identity of the people in the photographs, and he didn't give them the common courtesy to talk to them. From the video it sounds like he purposely did that. And I don't think he treated his subjects with the same dignity he would like to be treated.

May 26, 2011 3:34 PM  
Blogger Simon said...

I wonder what age of media we are in. People are more than likely to post their faces doing things no one cares about (partying, vacation, their cats) on social network, but if someone make a great photograph of them, they sue?

So when privacy rights are baffled by a corporation that don't advertise their theft it is ok, but for a photographer to do the same in an artistic way, and in the process make money it's now forbidden?

I undertand that it may not be "mother theresa" ethical, but how can they sue when they are the ones giving their life, personnel information and other data to social media for them to profit from?

Weird, weird times we are living in!

May 26, 2011 3:49 PM  
Blogger Ziv said...

Our privacy is violated in so many ways by so many agencies.... Philip-Lorca diCorcia's images are the least of anyone's problems.

May 26, 2011 3:50 PM  
Blogger Justin B. said...

I've been shooting street candids and street portraits for the last three years or so. After the first year, I created a coffee table book of some selected shots, not really expecting to make money, just as a print portfolio for me, mainly. I think it's terrible that he got sued, and I believe the verdict was correct, there's no expectation of privacy on public streets, which is where I shoot as well. Oh, and if someone shot me on the street I wouldn't have the slightest problem with it.

May 26, 2011 3:59 PM  
OpenID schultzphotographic said...

I've watched Scott Kelby's "Day with Jay Maisel" - another NYC Photographer who NEVER gets model/photo releases for his street photography. He exhibits his work freely. Granted, it's natural light shots, but I don't know why that would be any different from strobed stuff.

May 26, 2011 4:05 PM  
Blogger NYSTAN said...

HOw many of you live in New York CIty? Ever try to stop a person on the busy streets of Times Square at rush hour?
So, the notion of going back and somehow 'finding' them again, or going up to them to solicit permission....no way. Not here in NYC. If you don't believe me, come to NYC for a few days and try it.

ANother more troubling issue is this "FINE ART" notion that somehow the artist can take street photos without permission and sell them for huge amounts of money.

Uh uh....not nowadays. It used to be ok. I have heard from a few people who took seminars with Garry Winogrand way back, that his greatest talent was his eye contact and ability to get 'permission' on the spot and that he never took a photo against anyone's objections. In other words, therein lays the golden egg folks. And I would guess HCB was much the same.
But now is a different time. I think his photos, though captivating, break common courtesy. If they were not being sold for tons of money, no one would care.
Call it what you want, but "Fine Art" done for money is exploitative of the subjects. This is not news or reportage....it is making pretty pictures to sell in an art gallery.

May 26, 2011 4:11 PM  
Blogger rickp1 said...

I agree with the last poster. Granted he didn't have to speak to the subjects, it would have been nice to do so, and exercise some common courtesy.

This road of lack of common courtesy is a road we've been on way to long and as a people we keep making it wider and wider. Why do we seem to have to get lawyers involved into EVERYTHING? IMO, if the photog had just asked and respected peoples wishes this could have been handled in a much simpler manner. This is a also a great example why people are so angry these days. People's lack of respect for others and their space.

May 26, 2011 4:27 PM  
OpenID askedforit said...

Wow, so many thoughts. I will try not to rehash too much of what has already been said.......

To start, @David - I am surprised that you, someone who seems to advocate the thoughtful use of lighting, described this work as elegant. As ishootfood, I question the skill involved in wacking out thousands of shots over many hours. In my mind it seems akin to dropping an anvil on a block of ice and calling it sculpture :)

I also am not in the camp that finds these images compelling. This is opinion though. I also fail to agree with those that feel this is important street photography. These images were shot with strobes in a darkened area, with no context to identify the surroundings. To me, these are portraits. If there were no description included I could not tell you that this is Times Square over a random street in North Dakota.

As far as the legal goes, it seems the biggest lawsuit centered more on the infringement of religious freedom than right to privacy. I honestly cannot see any court upholding a ban on photography in a public setting, regardless of the end use. I have to image that would open the doors to challenges of use of "red light cameras" and the like.

One last point, though I know this has been touched on. There is way too much "doing what is legally allowable" over "doing what is responsible and considerate". I am witnessing it first hand here in North Central Pennsylvania, as companies seeking to plunder natural gas stores are running roughshod, destroying the only things this area has going for it. Corporations and industry have shipped off all the meaningful jobs in this country in their legal and financial right to pursue profit, and where has that got us. I realize these are not perfectly relevant to the issue here, but I would just love to see we people aspire to a greater level of thoughtfulness and consideration.

Thanks for your time.

May 26, 2011 4:33 PM  
Blogger ijaf28 said...

I am constantly reminded the world is a small place. Today, Mr. and Ms. X might be in the viewfinder because they're literally news. Tomorrow, the X's might be knocking at the door for a commercial or personal gig. People remember how they are treated, how their lives and their images are treated, and those memories make a difference in all kinds of things, for them, for me, for.

May 26, 2011 5:05 PM  
Blogger Doug Sundseth said...

I find it fascinating that many people quite explicitly object to the photographer profiting from these photos but would not object to the same photos being used in a newspaper.

Perhaps all of these comments come from cities/states/countries where newspapers are government owned, but in NYC the papers are quite explicitly for-profit entities (though less successful recently than latterly), organized to make money for their owners from publishing photographs and stories. In many or most cases, the subjects of these photographs and stories were not given any sort of veto over the use of their images or lives.

I don't see any material difference between what the New York Times does and what the photographer here did. This should not necessarily be taken as an unreserved endorsement of either, but the costs of prohibiting either are notably higher than the costs of allowing them.

May 26, 2011 5:14 PM  
Blogger Ron said...

Just because something is legal does not necessarily make it right in every situation. Notice he says "I'm not sure I would like it to happen to me, but I maintain my right to do it".

This is the exact opposite of the Golden Rule, and that tells me a lot about him as a person. I'm guessing he's single. Robots can express legal abilities; humans should think about what they OUGHT to do.

That said, they are some great shots.

May 26, 2011 5:38 PM  
Blogger Gary said...

The guy hung some lights at specific angles to get a specific look. He shot many thousands of frames in order to get a few that reflected his vision. He created this look, which comes through in all of the photographs. To all of you photographers who are lamenting about the "unfair" use of a person's likeness, I would ask, what's next. Do we need to ask someone's permission to even LOOK at them? Geez! These images are the artist's interpretation, and they are gorgeous. These images are his intellectual property and he can and should be free to do with them what he will. The idea that the subjects in these photos somehow have "rights" to their likeness is hard for me to square with the images DiCorsia shot. They were passive elements, that came to life in no small part because of DiCorsia's skill. Please think about your own images, and tell me how much of a hand you had in creating them, then tell me the subject in the photograph is responsible for the photo itself. All of a sudden you've devalued your own efforts!

May 26, 2011 5:46 PM  
Blogger Michael said...

It was said above but the idea that you meet them after the shot and offer them a model release. He obviously was shooting film as he said he never knew what he had until later (and the year he shot them) but still, offering them a copy and a model release is the ethical thing to do for the "art".

As a news photog you shot a lot of people without their knowledge, but that is news not art.

In closing today it would be a bit easier because you could show the image in the camera and hand them a business card. Then tell them to let you know withing X time that if you don't hear from them that it will be considered giving permission. It leaves you open without the signed release but its better than not saying anything at all.

May 26, 2011 5:49 PM  
Blogger Josef Moffett said...

Hmm, I know this is not going to go down well with most photographers, but I really think that just because we have the right, doesn't mean it should be done.

I've always been taught that the flip side of a "right" is the responsibility. And taking photos without people wanting them taken seems to violate that responsibility.

Of course, street life and the general bustle needs to be captured, but then generally street photography is about the setting, the stage as a whole (including the actors AND the scenery AND the circumstances), rather than merely about the actors.

By manipulating these photos, the images are not about the street life stage, but about the (strobically lit) actors. That (morally, not legally) means there is a very clearly defined person-subject interaction, and without permission, it begins to verge on voyeurism.

Especially in today's world, where (as a number of previous posters have mentioned) our personal space has been so dramatically eroded we (the professionals) are perhaps those best qualified to understand the subjects point of view.

May 26, 2011 6:02 PM  
Blogger Abe said...

After reading the posts I think there is a lot of confusion about commercial use. A picture of a person by himself is not commercial use. A picture of the same person in an ad for Coke is commercial use. Simply because he sold the photo does not mean it was commercial use -- it was editorial use.

A lot of the other posts seem to (I believe) agree that what he did was perfectly legal but they express their personal bias for how a subject should be treated. I really think all those types of posts should start off with "If it was me, I'd do..." because we all have an opinion of how to treat people in our photos.

For anybody who has ever taken a picture of a child when he was laughing and then asked him to post and got the horrible grimace "smile", there is a very real difference between taking a candid picture and taking a posed picture. They aren't the same and it's almost impossible to make them the same.

I take a lot of street photos and I enjoy the interaction with my subjects but that doesn't mean that I'm going to ask them for permission to take their picture in public. However, I do like to be respectful of my models so if they object to their picture being taken I generally don't take the picture and I may even delete the picture if I've taken it and they object.

What really bothers me about people (and that seems to include more and more photographers who really need to read up more on photography and the law) is that there seems to be a land grab for rights that traditionally they don't have. You have privacy in your bedroom, not on the street. A photographer can use a photo they took for editorial purposes and that includes selling the photos. They can't use your photo to sell a project without your permission and they can't defame you but short of that you don't have any "rights" to your image. There is a reason people in some countries wear burkas.

The problem I have with the religious argument is this. Say that my religion believes that everyone must hop on one foot, does that give me the right to sue anybody who walks with two feet? Fine, if he doesn't want to make graven images, well, he shouldn't -- that's his right and I can't force him to take a picture of himself. It seems to be extremely self righteous for him to say what somebody else can do. I feel bad for the guy but that's the price you pay for living in a free society.

Considering how much photography is under attack these days, I'm glad the photographer stood up for his (and all of our) rights.

May 26, 2011 6:08 PM  
Blogger David Solo said...

I think everyone is taking the threat here too calmly. In the US where citizens can carry guns and yet a camera is seen as such a problem? You should be taking to the streets to shout about this loudly. THEY CAN TAKE MY CAMERA WHEN THEY PRY IT FROM MY COLD DEAD HAND... The US still professes to be "The land of the free". Well not from what I have seen lately!

May 26, 2011 6:10 PM  
Blogger Morgana Creely said...

Under my State's Privacy Act you can take someone's photo if they are in a public place and have "no expectation of privacy". However how you use it is a very frey area. According to the Act you can not make money from someone else's image without their permission. I'm not sure how this applies to newspaper photojournalism.

May 26, 2011 6:16 PM  
Blogger Anthony said...

Newspapers do this every day. They take pictures of people in a public space, sometimes without their knowledge or permission, then sell the newspaper with the image the next day. If you say this guy can't take pictures of strangers in public without their knowledge, then the same rules might someday apply to newspapers. And that's a scary thought. Where would Cartier Bresson rank as an innovator of photography if he had to stop and get everyone's permission to use their photo. Would we even have the man jumping on puddle photo?

May 26, 2011 6:35 PM  
OpenID iainisbald said...

I have always been uneasy with street photography. It seems a little one-sided. The photographer gets everything out of it and the subject gets nothing. This is especially true when there is an exhibit or if the photo gets published. The extreme case is if the photographer sells the image.

Having said that I have done photography on the street for the last 4 years, but the difference is that people ask to have their photo taken and then I email them the photo.

I'm not sure why he did not speak to the people after he took the photo. In his situation they were walking towards him and he could have briefly spoken to them and given them a flyer with the details of the project.

May 26, 2011 7:31 PM  
Blogger Justin B. said...

I have to laugh at the thought many of you have of giving out model releases to street photo subjects. It appears that many of you have never attempted street photography. I might take 300-500 shots on the street in a lunchtime 'run'. It would literally be impossible for me to chase down every subject I shot, anywhere from 2-200 feet away from me. Not to mention the startling looks as I ran them down, the cost of handing out 300 business cards per day, ROFL, the list goes on. It's not only impractical, it's impossible. Add to that the fact that I'll only use a fraction of the images, and the rest will go to the electronic graveyard.

May 26, 2011 9:24 PM  
Blogger John Goldsmith said...

I have always been uneasy with street photography. It seems a little one-sided. The photographer gets everything out of it and the subject gets nothing.

This statement would be more accurately written as:

"The photographer gets something little. Society gets something."

In other words, we all benefit. Justin is exactly correct. I have to laugh when people say get a release. Not only would it be awkard to get a release but also usually pointless because most photos are never seen beyond the photographers own workflow. I apologize for the self promo, but how do I get release for this, or this or this(!)?

Like Justin says, it's not only impractical -- but impossible.

May 26, 2011 9:42 PM  
Blogger MarcWPhoto said...

Abe:

That's what I mean by the "old common law definition." It's no longer the definition in some US states and, to various extents, in other countries.

As one example, see 765 ILCS 1075, the Illinois Right of Publicity Act. While it contains broad protections for editorial use, what constitutes editorial use is quite a bit narrower than the traditional definition. Note also that the ILRoPA even provides for costs, fees, and statutory damages, so it doesn't really matter that you didn't make a profit.

Again, you cannot go by what "everybody knows" and by what the rules used to be. If this is an important area to your photographic work you need to consult an attorney familiar with the relevant law in your jurisdiction before you make legal decisions - like selling pictures of somebody's face for thousands of dollars without their permission, and thinking that since you're not selling Coke with it, you're in the clear.

Mr. Sundseth: The fact that a press entity such as a newspaper happens to be run as a for-profit enterprise does not make its usages commercial. There was a case on just this grounds under the ILROPA where a rather shady businessman sued because his likeness was used in some investigative reporting by a TV station and a newspaper, both for-profit entities. It took the court about two seconds to decide that the protections it offers to editorial usage clearly extend to the provision of newsworthy information even on a for-profit basis. It would be a counterargument of some merit if such laws did seriously hinder the freedom of speech or the press, but since they don't, it's not relevant.

May 26, 2011 9:43 PM  
Blogger MarcWPhoto said...

(Again, not legal advice, may or may not apply in your jurisdiction, consult an attorney familiar with the law and the facts of your particular situation before making legal decisions.)

By the way, there seems to be a strong element of "that's not how street photography works, we can't get releases, that's ridiculous." To this I have two comments:

1) You don't need releases to take the picture, to publish the picture, to use the picture editorially for reasonable meanings of the word "editorially." Even if the ROP laws in various jurisdictions required that, which they don't, they would not survive First Amendment challenge if that was their requirement. I can't speak to the law of other countries but rest assured nobody is talking about forbidding you practicing your craft. We're putting some limits on your ability to exploit the likenesses of other people. That's hardly a per se chilling effect. We already have such limits and have had them for a long time. We're just making them more specific.

2) That being said, once you leave the protected zone, the law does not care that it would be difficult for you to do these things, any more than it cares that it's difficult to extract the mercury from the exhaust of coal-fired power plants. Once the law sets a limit, the discussion is over. Thinking that the Argument To How We Do It will help you or is relevant in any way will get you in big trouble.

(If you want an example Ripped From Today's Headlines, consider the robo-signing scandal currently causing such distress in the real estate industry. If you want to foreclose, the law requires x, y, and z. Here we are in foreclosure court but you only have x and y, Mr. MERS-Using Giant Loan Servicer? Foreclosure action dismissed, feel free to sue on the loan. Contracts court is across the hall.

What's that? "That's not how you do it?" Fascinating. I must admit, that MERS thing is kind of cool. Contracts court is across the hall.)

May 26, 2011 10:14 PM  
Blogger Kevin Demsky said...

In response to Red Terror, the fact he is an orthodox Jew is very relevant to the story. The man sued on grounds of religious freedom and that he was denied the right to practice his religion. Orthodox Jews are forbidden from having graven image made of themselves. David footnoted that fact int he article. Click on the footnote and read about it.

May 26, 2011 10:34 PM  
Blogger Kevin Demsky said...

In response to Red Terror, the fact he is an orthodox Jew is very relevant to the story. The man sued on grounds of religious freedom and that he was denied the right to practice his religion. Orthodox Jews are forbidden from having graven image made of themselves. David footnoted that fact int he article. Click on the footnote and read about it.

May 26, 2011 10:35 PM  
Blogger Rob said...

I suppose it is more ethical than legal. Perhaps.

Admittedly true privacy doesn't really exist anymore with the pervasiveness of surveillance cameras and satellites. However, walking down the street knowing people can see me and I might be caught in an image as an incidental is one thing. Being a recognizable subject of a photo without my consent or knowledge is another matter.

If you took perhaps a silhouette or a distant shot where no one but perhaps myself or a close family member could identify me then I would go along with calling that fine art or street photography and no real need to tell me.

Or as an incidental, e.g. I'm attending a parade and when people take photographs of the floats I end up in the background. Or when I've gone to televised events and I am possibly recognizable in the audience. These are acceptable as well.

If I am the subject of a 'fine art' display without my consent, the artist is profiting from my likeness - I don't care if the image itself is being sold for profit or used as advertising, the artist has people viewing his work and he is gaining 'profit' in recognition if nothing else.

E.g. if I took a great photo of Jessica Biel for an art display it would gain me some recognition which in turn allows me to make better profits on other work. Yet celebrities have a 'right' to protect the use of their image.

As for 'Big Brother' capturing my image in surveillance; well they are not displaying it or profiting from it. Well I guess they might profit if they catch me doing something bad :) So frankly I think that argument to justify taking a photo of anyone in a 'public place' is a bit silly.



@RedTerror the man that sued has religious beliefs regarding his likeness which I believe should have been respected by the photographer.

May 26, 2011 10:44 PM  
Blogger Ian said...

Think of it this way. These people are already in public, every time you see someone in public that looks interesting to you, their face stays in your head. Is this violating their privacy? I think not. The only difference is with a camera its on a memory card or film. You don't go out in public expecting everyone to not look at you so how is this any different?

May 26, 2011 11:50 PM  
Blogger TD said...

@Justin B. Why Laugh ? Perhaps there are great cultural/ethical differences between the two sides of the atlantic ocean but, as you can see in all of these comments, you have the personnal AND the legal opinions. We have to deal with it.
Can you imagine what happens if you take a picture of the Eiffel tower in Paris ? Well, you have the right to do it. What if you publish it ? Well, it can be illegal. YES ! Was the monument lit by its artificial ligt ? If yes, you can't publish without authorization/fees ! Lightning schema is protected...
The fact is that it will probably be more and more difficult to publish street photography. Mostly every were in Europe (and some areas in Canada as mentionned before), you don't have the right to publish/sell without the recognizable peoples permission.

May 27, 2011 2:14 AM  
Blogger TD said...

@Justin B. Why Laugh ? Perhaps there are great cultural/ethical differences between the two sides of the atlantic ocean but, as you can see in all of these comments, you have the personnal AND the legal opinions. We have to deal with it.
Can you imagine what happens if you take a picture of the Eiffel tower in Paris ? Well, you have the right to do it. What if you publish it ? Well, it can be illegal. YES ! Was the monument lit by its artificial ligt ? If yes, you can't publish without authorization/fees ! Lightning schema is protected...
The fact is that it will probably be more and more difficult to publish street photography. Mostly every were in Europe (and some areas in Canada as mentionned before), you don't have the right to publish/sell without the recognizable peoples permission.

May 27, 2011 2:16 AM  
Blogger pbdweeeebie said...

This has really unearthed some interesting discussion and well thought-through view points. Thank you to all contributors for sharing.

I have only two very simple considerations:

1] When does "No" constitute "No"? If the subject - being the focal interest in the image - says "no", is that objection insufficient for us as photographers?

2] Would I pay for or display an image that I knew that the subject had objected to?

Although there are legal precedents and ethical guidelines, its hard to ignore that for many, these are out of reach. Many people, including the uneducated and poor alike - regardless of where in the world they are - have only the simple power of saying "No".

As photographers we have the simple choice of respecting or ignoring that before we are drawn into ethical and legal considerations.

May 27, 2011 2:41 AM  
Blogger pbdweeeebie said...

This has really unearthed some interesting discussion and well thought-through view points. Thank you to all contributors for sharing.

I have only two very simple considerations:

1] When does "No" constitute "No"? If the subject - being the focal interest in the image - says "no", is that objection insufficient for us as photographers?

2] Would I pay for or display an image that I knew that the subject had objected to?

Although there are legal precedents and ethical guidelines, its hard to ignore that for many, these are out of reach. Many people, including the uneducated and poor alike - regardless of where in the world they are - have only the simple power of saying "No".

As photographers we have the simple choice of respecting or ignoring that before we are drawn into ethical and legal considerations.

May 27, 2011 2:43 AM  
Blogger bycostello said...

to use pictures in an exibition, can't help but think he should have model releases... if not a legal requirement, then a moral ons..

May 27, 2011 3:18 AM  
Blogger Richard said...

I apologize if my comment was mirrored in any comments above. But since the author linked to my blog post about the issue of the lawsuit by the Orthodox Jew against being photographed, I wanted to answer a question above & reinforce the reasoning of the plaintiff in that case.

There is a prohibition in the Bible against "graven images." And Jewish law has interpreted photographs of human beings as graven images. For that reason, Orthodox Jews will never allow their photographs to be taken.

I think we should keep in mind that while the protection of the photographer's right to take photographs in public is valid; the plaintiff's right to be protected from violations of his religious conscience is very important as well.

What this photographer did to his subject caused him very real pain and suffering, whether he intended this or not.

I love photography & practice it myself as an amateur, but I would never take a photograph of an Orthodox Jew no matter what the circumstances. It's unfortunate the photographer didn't know more about the practices of Orthodox Judaism & I hope he will not take such a photograph again.

May 27, 2011 3:30 AM  
Blogger nicola said...

I wouldn't have done it, but I guess it was worth doing as an experiment.

OTOH, having seen the results, I definitely wouldn't do it now as I've seen other street portraits shot with the consent of the models by the likes of Nick Turpin (previously featured in this blog) that I find much more interesting.

May 27, 2011 4:40 AM  
Blogger Adrian Malloch said...

Ethics, money, being nice and asking permission… In the big picture those arguments become irrelevant.
What really matters is that in not so many years we will need to see and be reminded of what it was like in the post-millennium world. That's when the uncontrived and honest observations of street photographers will become such a valuable resource of who we are now and who we were then.
Imagine the collective photography of that period only represented by what advertisers think we look like, or Facebook photographs of kids forcing smiles for parents, or drunk partygoers making multiple hand gestures at the camera. While they may be useful to sociologists, it is the real world, real people and real experiences that need to be shown.
Remove the rights to be seen, photographed and displayed in public and we will have become all that which a free society detests.
Adrian Malloch
www.malloch.co.nz

May 27, 2011 5:13 AM  
Blogger John Fowler said...

Try that sort of offensive stuff in Canada and see how long it takes you to "win" in court! Hah!

May 27, 2011 5:27 AM  
Blogger John Goldsmith said...

@TD. There is only one place in Europe that I'm aware of that it is not legal to publish editorial (i.e., street photographs) work of people. That's France. Elsewhere, it is perfectly and legal to do so.

The other argument you have (i.e, that it will become increasingly difficult to publish photographs) is only your opinion. When speaking about the public realm, I doubt that increasing restrictions would be the case in most places. Additionally, in some places, like what seems to be happening in Connecticut, photographers rights to photograph in public are actually increasing. Nevertheless, one big concern is that some formerly public areas are becoming quasi-private, like the main train station in Melbourne, Australia. It probably has a lot to do with 9/11. But the increasing availability of small portable cameras and cellphone cameras will make it impossible to police picture taking in public.

Also, at a time when corporations and governments are disciplined only by citizen journalism (read: Wikileaks), it is us who can continue to provide this oversight. The media often has their own interests in mind and unfortunately that is the bottom line. Professional, hobbyists, and the media alike, need to ensure that the collective rights as photographers and citizens remain free. Our democracy depends on it.

Finally, as was mentioned above, what street photographers do is no different than what the media does every day. If they lose the right to photograph in public, we all do.

May 27, 2011 5:44 AM  
Blogger Stuart Mackenzie said...

If you extend the self prohibition that many shooters in this thread seem to support, then the only people we would ever be able to photograph are models or 'normals' in posed portraits.

I lose count of the times I have shot people whilst travelling without their say-so or in fact knowledge. You capture something real, instead of someting posed.

I'm not sure I want my photographic legacy to be anything else

May 27, 2011 6:37 AM  
Blogger Bryan said...

Legal issues aside, which I can see both sides of - I just can't wrap my head around why these images are anything worthy of attention let alone a gallery exhibition?? I just don't get it. Seems like some high brow art snobbery making a mountain from a molehill to me. Maybe they impart something in person that doesn't translate on the web?

May 27, 2011 8:40 AM  
Blogger Bryan said...

Legal issues aside, which I can see both sides of - I just can't wrap my head around why these images are anything worthy of attention let alone a gallery exhibition?? I just don't get it. Seems like some high brow art snobbery making a mountain from a molehill to me. Maybe they impart something in person that doesn't translate on the web?

May 27, 2011 8:40 AM  
Blogger Ranger 9 said...

Shooting the photos: no problem. If you're out in public, you're open to being looked at, and photography is just a more permanent form of looking.

As with other posters, where I run into trouble is with the cashing-in aspect. I mean, the guy is exhibiting at the Tate Modern... that means he is selling his work for seriously big money. If someone stuck a camera in my face, popped a flash, sold the print for $50,000, and then told me "Screw you, it's none of your business" (which basically is exactly what he did) I would have an issue with that. I would feel that if my face was worth his while to photograph, I should get to participate in the monetization end.

The courts have always been very protective of an artist's freedom of expression, and have distinguished between the law applying to artistic uses and commercial uses. But now that, in our new Age of Oligarchy, a well-connected elite of artists can sell their "creative expressions" for staggering amounts of money, I think the line between expression and commerce is becoming blurred and the courts are going to have to do some harder thinking.

Sure, I photograph people and I don't always ask their permission first... but I try to make sure that the photos are at least accessible to them afterward. It seems fair that if I have access to their faces, they should have access to the photos. Whenever I get away from that standard, that's where I start to wonder if I'm crossing the line.

I wonder if the woman in the example photo could have afforded to buy one of the artiste's prints?

May 27, 2011 9:17 AM  
Blogger Justin B. said...

My post specifically addressed the practical impossibility of chasing down every subject that one might shoot on the street, not ethics or legalities of usage.

May 27, 2011 9:26 AM  
Blogger George said...

I tend to agree with a majority of the people on this subject. What was done wasn't illegal ( as was born out by the litigation) how it was done is a grey area.

I would suggest that if you have to ask yourself if in a similar situation if what your doing is right, then more than likely its not. Research and a pile of Model releases would have saved a plethora of court visits. When it comes to the letter of the Law, loopholes or grey areas do not protect the photographer from litigation.

I just have to say when in doubt ask or research.

May 27, 2011 9:45 AM  
Blogger Alex Gowers said...

It's odd that any religion should have rights beyond those outlined for everyone. I think that public spaces are fair game, making money off those pictures is also fair game.

Monetary compensation for profits made using an image is another thing, part of me thinks that if a person comes forward there should potentially be a split of profits for being in the picture. This is the part that is a grey area for me.

If the case had been that he demanded money/part profits for posing in the photo then i think it may have been a different outcome.

There is no right answer and i think quite rightly it should be a grey 50/50 area. The law is always too black and white, when life is never that way.

May 27, 2011 9:59 AM  
Blogger Ken Gray Photo said...

There are so many different interpretations of the laws of privacy in regards to photography and the courts in the US almost always rule for the artist.
To clarify some misconceptions: Celebrity photos and the celebs' right to market their image is a completely different issue then you or I wanting control over our image/face in the hands of a street photographer. We do not make our living from our faces and that is ruled in court against us.
Commercial use of images is not selling of photos. The courts allow the photographer to make money from the image as long as it does not show support of a product and such. You can't use the image to promote or advertise in a way that looks like the person in the image supports the ad/product. They can be on the cover of your next photo book and sell for thousands, but not in a 1" ad in the back of a newspaper selling gum.
I understand we must use discretion when shooting, and when it comes to art I have not seen anything that brought me to believe that the artist should not have taken the image and made a profit. Your face(non-celeb) is not worth a penny until an artist creates a work of art. They deserve everything they can make from it. To protect yourself from photographers in the street do as the celebs do and wear a hat and sunglasses.
My beef with the anti-street photographer/profit group is why now? This art has been going on for 100 years? Why didn't you complain to the world at any other time? The street photographer has been making money from folks w/o their permission while employed as a newspaper journalist, government document worker, naturalist, and any number of other jobs. They kept the negatives, printed at will, and now their heirs are collecting the money. Go after the legends of photography first before you attack a young artist.

May 27, 2011 11:34 AM  
Blogger David Hobby said...

@ Richard-

You said:

"I love photography & practice it myself as an amateur, but I would never take a photograph of an Orthodox Jew no matter what the circumstances. It's unfortunate the photographer didn't know more about the practices of Orthodox Judaism & I hope he will not take such a photograph again."
___

FWIW, I have chosen not to moderate into publication some of the comments which were disrespectful of Orthodox Jews. And frankly, I knew before the fact that they would happen. Some people are just culturally insensitive.

But by the same token, an Orthodox Jew does not have the right to "not allow" a photograph of of himself in public. The First Amendment protects the rights of both freedom of religion and freedom of expression.

Mr. Nussenzweig enjoys the right to practice hie religion as he sees fit. But Mr. diCorcia also has the right to photograph him in public. Mr. diCorcia is not bound by religious law, but both are bound by the guarantees of the Constitution. And in the US, the Constitution is the trump card.

May 27, 2011 12:27 PM  
OpenID modifiedphoto said...

After watching the video, I feel his pain in what he went through over this. I don't agree that he should be held accountable for damages as nobody was harmed by this project or the resulting images. Although I wouldn't want my picture taken and used for profit, I don't believe that was his key goal. Rather, these people should be thrilled that they are a part of someones art to be admired by others.

As for the images and project overall, it is very interesting and many are very striking. As he says, it shows how similar people really are.

In his defense, I think it would have been far too difficult to stop and ask permission from every single person that passed by that he captured. Though some sort of sign or notice before or after the project may have helped.

May 27, 2011 2:25 PM  
Blogger dmkellman said...

If I were to discover myself in an image on display, of course I'd be surprised, but I wouldn't feel any more violated than I already do from just stepping out of my home. To me, it seems pretty obvious, there are private places, and there are public places. Public places are not private, so why would you expect any privacy? Whenever you go into a store, you are on camera the moment you step through the doors, and in many cases, the minute you pull into the parking lot. So again, if I saw myself in a gallery, I wouldn't be mad because I know anything outside of the walls of my home are fair game.

Now, is this something that I would do as a photographer? No, but I assure you it has nothing to do with ethics of wether i feel it's right or not. I'm just not the type of person who goes out and photographs the public streets.

May 27, 2011 3:26 PM  
Blogger Puggle said...

This is an excellent discussion.

The photographer was well within his rights to photograph in a public place.

I'm curious what most of the people thought when they saw the strobe fire. Did they know they were being photographed?

Were there others that objected?

I wonder if perhaps the photographer placed a poster before the section, alerting people to what will occur. Would that have helped, or, would it have ruined the spontaneity?

Anyone?

May 27, 2011 5:50 PM  
Blogger Abe said...

I don't doubt that for an Orthodox Jew, having his picture taken may be disturbing, but I was surprised to read that, instead of just trying to prevent the sale of the pictures, he was also asking for $2 million.

I also see a lot of posts where people seem to be OK with having their picture taken without their consent -- as long as they get a piece of the profit.

To those people, I have to ask, exactly what did you do, other than walking down the street, to deserve part of the profit. It seems to me that the photographer did all the work. Society benefits in general. And you didn't get any money but you weren't harmed in the process so there shouldn't be any need to compensate you for your loss (because there isn't any).

I'm very disappointed that we are still thinking "what's in it for me" rather than asking "what can I do for others". I often release photos for use by anybody and I develop open source software. I don't get a penny from any of these things but I feel I'm helping society.

May 27, 2011 6:21 PM  
Blogger thesolowest said...

Surprised Walker Evans hasn't come up in this discussion...

Also, watched a Kelby training video recently with Jay Maisel who expressed no inclination or need at all to contact subjects of his street photography.

This is all very interesting!

May 27, 2011 6:23 PM  
Blogger Aidan said...

When are we going to grow up? When we're out in the street everybody sees us! What's the difference if we're seen in a different medium!
Street photography is a celebration of people and their differences. It's important documentation of society.
If it were being done in a way to insult or degrade then there is a different case for complaint.
If street photographers can't sell their work without the impractibility of rushing after people with a form to sign then how are they to keep working?

May 27, 2011 6:41 PM  
Blogger Vertizon Creative said...

It's all totally fine, until he begins commercial use. Public scenes (al la Walker Evans as he mentions)have been captured for art's (or fun's) sake since cameras were invented, but I'm surprised to hear that a lack of a release didn't make him clearly liable for unauthorized commercial use. That I think is wrong.What about "due consideriation"? Did he compensate anyone for using their likeness to make money? That to me is unethical.

May 27, 2011 6:47 PM  
Blogger Alessandro Rosa said...

I have thought about this a while, as I think that the technical merit of the images, the skill of lighting and editing into a cohesive body of work is impressive. I also have a great respect for the tradition of editorial Street Photography, both for journalistic and artistic pursuit; I value the freedom to capture an image as I see fit in a public place.

However, there has always been something in the back of my mind that has bothered me about this body of work. I don't question the legality of it, and believe that a discussion of ethical or moral correctness is overblown, but what I now see is that by not interacting with the people he photographed and for all intents and purposes he has removed the from the context of they environment through framing and lighting, he has objectified these people. Editorial Photography, Journalism and Art have always sought to provide the story, the subject to the focus of lens, pen or brush. What objectifies a human subject? Pornography. That is why we have a distinction in photography between the fine art nude form and banal photographs in Penthouse. This is the harm that he has done them. He has objectified them; stripped them of their story or the context of the surroundings the inhabited, all without being involved with them as a person. No matter how well lit or flattering the image, he cannot avoid the fact that he has robbed them of the subjective, and as a result, they can not be noble.

May 27, 2011 7:34 PM  
Blogger Rob Oresteen said...

I get both points of view, but did the plaintiff ever look at random editorial pictures of people in other cultures and not feel offense for them as he viewed the picture?

"News worthy" is a slippery slope that should not be defined by a judge or jury, per se.

The other thing that bothered me was that the judge determined that the defendant was "accepted" as an artist in his community. Scary. So if i pick up a camera with artistic intent and do not have communal evidence that I AM an artist, my rights to do what diCorcia did is diminished? What next, an artist license with a union card?

Personally, I would not do this to other people and I think it's cowardly - just ask someone for their picture - if they are not agreeable, move on and ask the next guy. True you don't the spontaneity of the moment, but that's irrelevant to me.

However, I believe the laws should rule to error on the photographers side less we will be prohibited to freely shooting less and less.

May 27, 2011 8:41 PM  
Blogger The Behrend's said...

Some of the commenters were wondering why the man's religion/faith/ethnicity was even brought up. I wondered myself, so I dug a little. According to the article that was linked from the NY Times,

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

It's an interesting fact - I never thought of that as an issue.

May 27, 2011 8:51 PM  
Blogger John Goldsmith said...

@ Alessandro. This project is not akin to pornography, and even if it were, it would be protected by US laws.

The photographer stole nothing from his subjects. He did not harm them or point a gun at them. They were not scared or frightened by the threat of immediate death or bodily harm. These are photographs that document a place, time and people.

Documentary photography, whether the editorial work for a newspaper or by this or any other artist, are important for their contribution to our society. Any gain is collective, and even if they don't know, those subjects benefit as well, though maybe disproportionality if we only look at this one case at this one time. But if we don't allow this sort of work to be done, we, including those people shown in this project, will all lose a lot more than what you suggest is lost when one's candid photo is taken.

May 28, 2011 12:12 AM  
Blogger John Hoenstine said...

I wonder if the days of Cartier Bresson, Bruce Davidson, Garry Winograd, etc are over. If that is the case we are all lessened by the loss.

May 28, 2011 2:41 AM  
Blogger GaryGoose said...

A wonderful discussion. I drove across country last year and everywhere I stopped, I set up an out door studio and asked the by passers if I may make their portrait. Everyone but one said yes and everyone that said yes signed a model release. It is not hard to respect people and still make your art. One thing I did not see in this conversation is if one person complained, why was nothing done to remove his image from the show, find some agreement with him, and continue the show with one less image? Art can be both legal and respectful. There are no facial expressions that can not be duplicated if asked for.

May 28, 2011 7:59 AM  
Blogger GaryGoose said...

A wonderful discussion. I drove across country last year and everywhere I stopped, I set up an out door studio and asked the by passers if I may make their portrait. Everyone but one said yes and everyone that said yes signed a model release. It is not hard to respect people and still make your art. One thing I did not see in this conversation is if one person complained, why was nothing done to remove his image from the show, find some agreement with him, and continue the show with one less image? Art can be both legal and respectful. There are no facial expressions that can not be duplicated if asked for.

May 28, 2011 8:01 AM  
Blogger David said...

I think the phrase "out in public" says it all. One should not have an expectation of privacy in this situation. Not being able to take a picture and use it would infringe on my right to free speech.

IMO, where that right ends is if someone is obviously attempting to protect their privacy, but someone makes an effort to violate that attempt. For example, wardrobe malfunctions. I believe that publishing or distributing photographs of someone accidentally exposed is violating a person’s privacy in so far as that had an expectation that they would be seen fully dressed.

May 28, 2011 10:10 AM  
Blogger Michael said...

It would have been great if he had been able to contact the pedestrians prior to using their images. I looked at several of the pedestrian images(pun not intended)and had no concerns. I liked the short video of him describing the project. I don't know if his behavior was appropriate at different stages of his project. Nothing in it bothered me personally. It didn't feel like he was doing anything wrong. If I was visiting another country I think I would definately avoid this type of project, if only out of diplomacy. The actions of one can affect the opinions of many.

May 28, 2011 11:24 AM  
Blogger mikepeters said...

We should all give thanks to the lawyers for Mr. di Corcia, it's totally settled case law.

What's not ethical about what he did? He didn't misrepresent anyone or sell the images for advertising or give them snarky or misleading titles. He was respectful in every way, showing the subjects as they presented themselves to the world on that day.

Permission is irrelevant these days, everyone is on camera in the street all the time. If every photographer asked permission, there would be no spontaneous images taken anywhere, ever. When you are in public, you have no expectation of privacy. End of discussion.

If this kind of photography makes you uncomfortable, then don't do it. But just because you don't do it, does not make it wrong on any level for those of us who do.

If you're not sure about rights, read this, print it and keep it in your pocket: http://www.krages.com/ThePhotographersRight.pdf.

May 28, 2011 11:43 AM  
Blogger Jenika's said...

I think DiCorcia lost any moral or ethical high ground from 2:12-2:22 in the video. He wouldn't want it to happen to him, but he defends his right to do it to other people? Honestly, that disgusted me. I was prepared to take his side in this (public space, no expectation of privacy, etc - I'm on board). But you should never do something to others - as a photographer, as a human being - that you wouldn't want to be done to yourself. Deeply disappointed in his attitude.

May 28, 2011 12:31 PM  
Blogger Jenika's said...

@ John Goldsmith, with regard to the comment "They were not scared or frightened by the threat of immediate death or bodily harm." I see what you're saying, but as a former psychologist, I must also note that it's considered a huge no-no to subject someone to a bright flash without warning. Yes this was in Times Square where there are flashing lights all over, but as far as I can tell this was under dark scaffolding with fewer other lights. Most museums nowadays warn people if there is going to be bright flashing lights in their presentations because it can trigger PTSD issues. It might be unlikely in this case (I don't know, he didn't show a shot of his setup or what the experience was like), but in post-9/11 NYC with lots of PTSD cases likely walking around the streets, I can't be so quick to dismiss the possibility that it might harm or scare someone in a way that it wouldn't for you or I. Important food for thought.

May 28, 2011 12:38 PM  
Blogger David Hobby said...

I think the PTSD argument might be a bit if a stretch...

May 28, 2011 3:15 PM  
Blogger Justin B. said...

@GaryGoose "There are no facial expressions that can not be duplicated if asked for."

I have to disagree vehemently with this. This is patently obvious, otherwise candid photography wouldn't hold the allure that it does. Catching moments in time that would be extremely difficult to pose and re-do is part of the art.

@Jenika "But you should never do something to others - as a photographer, as a human being - that you wouldn't want to be done to yourself."

Completely disagree with this statement. Re-read it and I'm sure you'll agree that it doesn't hold water. There are many, many things that we do every day, and for which we support the rights of others to engage in, even though we may not do them ourselves, or be completely happy that others can do so.

May 28, 2011 10:13 PM  
Blogger Andre said...

Coming from the city of New Orleans where tourist come and photograph every inch of the city and it's culture (sometimes without consent), the subject has taken an interesting perspective.
Mardi Gras Indians (look it up) dress in elaborate costumes that represent their culture and heritage and many "professional" photographers come to the second lines and snap photos to sell without so much as a thank you to the Indians or the communities that this culture flourishes in.
I understand the rights of a photographer to take pictures in public, but a moral weight must be placed on all our artistic actions.

May 28, 2011 11:09 PM  
Blogger fotorolli said...

I think that the pictures are great, however, I would have at least tried to get the subjects permission to use them afterwards. @david finkel
One thought about street photography: I have personally installed strobes on a street corner myself (but deleted pics if someone objected). Here in Switzerland, if you want to defend your copyright, the court wants to see an artistic approach, otherwise, you may not even have a copyright. As much as I love the works of Robert Frank, Gary Winogrand and others, we have a whole arsenal of tools these days and I would hate not to use them, just because someone might think it is not true this or that. To me, it's just photography. I am a commercial photographer but I have had exhibitions and I have worked for the press. It's getting that best possible picture that counts.

May 29, 2011 3:06 PM  
Blogger Karl said...

I was curious to know did the man or his lawyers just go and ask the artist to remove the image from the exibition or did they just go straight for the monetary `payoff`.
If he had gone to the artist and asked for his image to be removed on the grounds he had explained and the artist refused then I would have sympathy with his plight.
But if it was straight to lawyers and straight for the jugular then well done to the artist for defending corner.

May 29, 2011 3:40 PM  
OpenID xsportseeker said...

I feel lots of people are not getting the point here. He took pictures of thousands of people for the project, and decided which ones to use later.
Plain impossible to stop everyone and ask for their permission... with 3000 people it would take months, or he'd have to completely change the idea of the project.
Yes, it's a fine line.
I also don't like the idea of getting my photo taken, even being on public space, and my image being used for the profit of someone else.
But it's also a fact that having some law interfering on the liberties of photographers on public spaces is a take against freedom of speech.
As long as the guy didn't use it for defamatory purposes, it shouldn't be a problem.
I mean, it would be completely different if he chose subjects and put some title on it... you know, like "funny things on everyday life" or "disgusting things people do on public spaces" and so on.
This would be unethical and a crime by itself.
But it's a choice he made. Any good photographer knows or should know when they are stepping the fine line, and the worst consequences that it could have.

May 29, 2011 5:57 PM  
Blogger Dan said...

What is disturbing to me is so many people have commented about diCorcia's photographs being sold for a profit being "commercial" and not "art". Since when is an artist not allowed to sell his or her work for profit? Since when have artists been bound to never make a cent on their hard work?

May 29, 2011 7:17 PM  
Blogger Richard said...

This presents an interesting, but conflicting set of issues.

It is a public area, but the images are being used for commercial purposes (the exhibit and presumably sales) for events that plainly are not "newsworthy".

There have been a number of cases involving the unauthorized use of images in advertisements which amounted to an endorsement, especially those involving recognizable sports figures.

Willie Nelson has copyrighted his image. Though I have not researched it, I doubt he is the only person to do so. The result is that you may take Willie's picture at a concert for your own non-commercial use...lots of fans have and he authorizes such use. Unauthorized commercial use of his image will draw a quick response I am told. This raises the question of whether one's image actually is subject to copyright. If so, then a common law copyright would logically also exist. The import of that is that street photography, without the benefit of a model release of some sort or an exemption of some description, such as a news event, would raise the possibility of either legal action or the refusal of anyone in the business to publish or display the image, very much in the way copy shops have their copyright notices by the copy machines.

Some images, where, for example, the subject is looking at the camera and waiving or smiling or conducting themselves in some manner as to imply consent, would probably be OK. The image of the woman at the beginning of the article clearly does not display this sort of consent.

Do people going about their daily lives, even though they are in a public area, have the right "to be let alone" and not have their image subjected to commercial exploitation? The answer will no doubt vary from jurisdiction to jurisdiction.

May 29, 2011 10:26 PM  
Blogger Wally said...

In the USA Under US federal Law

1. You can't publish an image of an individual without a release.
2. You have a constitutional right to take the photograph. You do not have a constitutional right to take up sidewalk space with out a permit, also a constitutional guarantee to cities and states.

Don't like it? Hire a carpenter build a bridge and get over it.

May 30, 2011 8:34 AM  
Blogger MarcWPhoto said...

Dan: As I have said several times, since the law changed from what it used to be when Honus Wagner was a bat-boy. That was then and this is now.

Richard: You cannot copyright a person's likeness, because it is not fixed. (There would also be a question of who the artist was, frankly, and the amount of originality involved.) You may be thinking of a fairly well-known case where a photographer sued a retailer for selling shirts with a photograph of Nelson without a copyright license. "Willie Nelson" is also a registered Federal trademark for various goods and services. But I assure you that if Nelson sues for use of his face, it will either be for infringement of his right of publicity, or copyright *in a particular image.*

May 30, 2011 8:37 AM  
Blogger Leicavirgin said...

Girls Gone Wild is the perfect case example of what photographers can do with images taken in a public setting. Snap away! You're safe.

May 30, 2011 11:46 AM  
Blogger Leicavirgin said...

. . . and let's add that copyright belongs to the photographer unless otherwise explicitly noted. If you shoot indoors in a private setting, things get more quirky. Out in the open on a public sidewalk, there's no gray area, even in the case of a wardrobe malfunction.

If I'm sitting across the street zooming through your uncurtained window with a telephoto lens, I'm protected.

FWIW - Supreme Court has disallowed IR imaging of a warehouse that was warmer than usual as a means for busting a marijuana factory.

http://abcnews.go.com/US/story?id=93127&page=1

May 30, 2011 11:55 AM  
Blogger David Hobby said...

@Wally-

Actually, neither of those items are correct.

May 30, 2011 3:03 PM  
Blogger Richard said...

MarcWPhoto,

I note that you are a practicing IP attorney. I share your opinion that Willie's image is not subject to copyright even though I posted that he had done so. As I have no interest in commercial sales of Willie's image I never further researched the matter. I used to know a professional photographer in passing who had encountered the situation and had submitted several images to Willie's people to try to secure their blessing (and licensing). As the images were captured at a concert, it is more a matter of contract law and licensing (I am told that the National Park Service has gotten into the licensing game with landscape, nature and wildlife photographers). Concert photography is subject to many restrictions which are frequently quite restrictive, even for personal use.

The USPTO has publically conceded that there have been a good many patents which were "improvidently awarded" and began a very limited internal review. I think the same is almost certainly true in other IP areas as well. (I have been known to comment that a number of patents award amounted to patenting gravity which, if patentable, would have been patentable by a fellow named Newton a long time ago.)

I suspect that Willie may have actually filed a copyright of hi image, but haven't bothered to check. It would probably appeal to his sense of humor as well as being a saber rattling technique to keep people from selling various Willie "stuff".

There appears to be quite a bit of Trademark, copyright and patent "squatting" these days in the hope of striking bargains with some or other.

Even though it was withdrawn, can you imagine the nerve, not to mention arrogance of Disney's recent filing for "Seal Team 6"?

Cheers

May 30, 2011 5:35 PM  
Blogger matt granger said...

I think that it's ok on the photog's side. If it's a public place, then it's ok. How does it work for photojournalist and their subjects? Their images land in national newspapers, so how's it different for an artist to post these images in an exhibit? In America we have our pictures taken so many times a day, whether it be security cameras, satellite cameras, or even tourists snapping pics on their vacations. We end up in pics everywhere. I would be fine with mine ending up in an exhibit, especially if they asked my permission, hell, even if they didn't.

May 30, 2011 11:30 PM  
Blogger Tom Meyer said...

There's a big difference between the selling of a fine art image of a person walking down the street that is presented as a photo of a person walking down the street, and the selling that same picture to a third party that then presents that person as someone who uses Viagra, or Dr. Scholls shoe inserts, or has a drinking problem or invests with Goldman Sachs.

The fine art print does not misrepresent the subject, nor does it produce profit for a third party. It is a non-judgmental contexturally accurate depiction and does not need a model release. A commercial re-interpretation of the person *does* need a model release.

I completely support PLD's making of these images and the manner in which he sells them. If he sold them through Getty as stock images for any buyer to use for selling any product, that would be a transaction that could and should be stopped by current and clear legal means.

PLD is not a threat to your privacy. The NSA can listen to your phone calls and read your emails. Get upset about that, instead of an artist making a living by showing American life on the street for what it is... beautiful, evocative and engaging.

These images are important historical works of art.

May 31, 2011 12:23 AM  
Blogger Sergei Rodionov said...

Its not about being introvert and being shy. There are classes for that, btw. But it is about respecting freedom of others as much as your own. Simple as that.

If you took shot of someone and intend to use it for exhibition body - have nerve to ask people if they are ok with it.

Never treat others in way that you wouldnt want to be treated yourself. And he did.

May 31, 2011 1:32 AM  
Blogger Dreux Sawyer said...

Three little words: Reasonable Expectation of Privacy. Public place, NO expectation of privacy. If you don't want your picture accidentally taken, don't go out in public. Period.

That said, where it gets dicey is in the publication and/or exhibition of that image, and the greater the exposure, the more relevant the issue becomes. For that, you need permission. You can't ask for it after the fact, because the damage is already done.

Yes, the fact that the subject was an orthodox Jew is highly significant. Every culture, ethnicity and religion has its customs, and you need to know and respect that going in. If the subject was black, should it have been pointed out also? Well, that might require a little research. And if there are cultural restrictions the answer is definitely yes, but more as an exercise in cultural education. We are all individuals and have the right to determine our own set of rules.

Lastly, if there is any financial exchange whatsoever, the subject needs to be either compensated or to waive their compensation in the interest of the cause. You cannot have a portrait without a persons' willing participation.

May 31, 2011 5:55 AM  
Blogger lightyear105 said...

I think DiCorcia pursued some great art....it's just art, for God's sake. This legal paranoia is really getting out of hand.

May 31, 2011 6:55 AM  
Blogger Tim said...

Great discussion. I think it is important to keep in mind, as David pointed out in the post, that a legal right is not a moral or ethical right. After all, slavery was at one point perfectly legal - but obviously not moral.

A lot of the disquiet around this project seems to be the result of a disconnect between cultures. Erno Nussenzweig is not alone either as an individual or as part of a religious group to feel he has some right to how his likeness is used. Does he have a legal right - no (and one can see why this is necessary to maintain a free press). Does he have a moral right? I'd say yes. So it requires some work on the photographer's part to negotiate this issue.

This was a very very premeditated set-up. diCorcia did it over an extended period of time. Let's allow that the candid image is unique and he could not have notified the subject beforehand. Soe attempt could have been made post-photo. It wouldn't be that difficult. A poster at the end of the scaffold. A bag of business cards taped to a wall.

And one thought experiment to muddy the waters still further. What if I taped up the publicity poster for the diCorcia exhibit (showing Mr. Nussenzweig) under the very same scaffolding - and proceeded to photograph that. Then let us say, I published it. At what point does it stop being news, commentary, or art and start being copyright infringement?

May 31, 2011 8:39 AM  
Blogger MarcWPhoto said...

Richard:

In a quick research of the matter, I noted several sources which implied that Nelson had a "copyright on his face," so the idea is quite common. And you are quite correct that many patents which are completely indefensible are regularly issued. The PTO is chronically understaffed and while the examiners are generally able and conscientious their workloads would make a public defender scream in pain. The same is true of trademarks, and of course other than cursory compliance checks there's not even a formal examination process for copyrights at all! So yes, there's a lot of dreck in the system, which is the price we pay for our generous and liberal protection of creative works and other intellectual property. As with all things in life, it is a balancing act.

And to get back on topic, that balancing act is being applied, slowly, to the right of publicity. Things, they are a-changing. This happens from time to time. The Patent Act underwent major changes in the 1950's and the 1970's. The Copyright Act underwent major changes in the 1970's and the 1990's. The Trademark Act went through major changes in the 1980's and the 2000's. A lot of what people think they know about patents, copyrights and trademarks comes from outdated knowledge. The same is true of the right of publicity. States are passing laws. Courts are making decisions. Things, they change.

I was utterly mystified at the news that Disney had attempted to trademark "Seal Team 6." My current theory, although I haven't looked into it at all and this is quite conclusory, is that they have a movie or some other property involving the name in development and some flunky, not knowing what a Seal Team even was, duly filed a registration application on the term as per some established procedure. There's no real penalty in the vast majority of cases for filing a registration which isn't grantable, absent purposeful fraud on the PTO. And the cost of doing so is very low. No harm doing it, it might help, it gets done.

May 31, 2011 9:47 AM  
Blogger Mike said...

It's a very slippery slope. A while back on David Letterman, they videotaped a woman eating ice cream at the US Open tennis match in Flushing NY. She was sitting at a patio area in public space on the grounds of the tennis complex in Flushing Meadows. She at the ice cream with a lot of zeal, and rather sloppily, which Letterman thought was funny. They showed this clip on his show and it was broadcast into millions of peoples homes. The woman went on to win a lawsuite against the show.

I'm not sure where the defining line is. Yes, we are probably videotaped or photographed by surveillance equipment every day. But as far as I know, those images/videos are never used for profit. They are only used as evidence in the event of a crime being committed. I think that's where the big difference is.

May 31, 2011 10:06 AM  
Blogger Tom Meyer said...

where are the damages? For any lawsuit to be successful, you need to be able to show that you were harmed.

As for "Never treat others in way that you wouldnt want to be treated yourself. And he did."... I'm betting that the artist would not have a problem with his image being made in this same manner and used in this way.

and the Letterman example isn't pertinent. The woman was ridiculed. In DiCorcia's work, the people are portrayed as they were in that fraction of a moment, with no qualifiers or judgements attached or implied. Context, intent and usage are entirely different in the Letterman example.

May 31, 2011 12:09 PM  
Blogger Richard said...

MarcWPhoto,

Slightly off topic for street photography, but I ran across an article on the enforceability of musicians' contracts with photographers at concerts. Not surprisingly, they generally are.

http://www.photoattorney.com/?p=2300

Regards

May 31, 2011 1:18 PM  
Blogger MarcWPhoto said...

Mr. Meyer:

See: http://en.wikipedia.org/wiki/Unjust_enrichment

See also: http://en.wikipedia.org/wiki/Copyright#Exclusive_rights_granted_by_copyright

See also: http://en.wikipedia.org/wiki/Punitive_damages

The expansion of the right of publicity is not some unprecedented and de novo approach to legal liability. Our legal system does recognize that liability may be appropriate even in cases where the actual damage to the plaintiff is de minimis. Whether or not any given fact situation is such a case is a separate question, but liability !== actual and/or consequential damages. You may not like it, and that's your right, but that's how it works.

May 31, 2011 3:48 PM  
Blogger ngm011 said...

Would be interesting to hear Bruce Gilden on this one.

The similar (even more aggressive) street technique in the same city but different period.

- ngm

June 01, 2011 12:23 AM  
Blogger EPiC said...

I think that street photographers are facing difficult times all over the world. In Brazil, the law allows you to take photographs in public places, but some people tend to overestimate their prerogatives and it is has become usual to see security guards harassing photographers on the street. One cannot photograph the National Congress with a DSLR (a.k.a. "big camera" in the guards' lingo), but it is ok if you use a compact one.

So, my advice is: leave your DSLR at home and grab a micro four-thirds.

June 01, 2011 11:57 AM  
Blogger Jason V said...

Mostly Ethical: Display images in gallery (public place, no expectation of privacy)

Un-Ethical: Selling sed images for many thousands of dollars.

However, there are groups of people who do not like to have their images taken: Amish, Eskimo, etc.
Hard to tell on the streets of NY I guess, unless he's wearing Orthodox Jewish clothing and hairstyle.

June 02, 2011 12:43 AM  
Blogger Shannon Wimberly Photography said...

Really.... I don't know why I am commenting on this... it baffles me how you could market an image of an orthodox jew to the general public, and expect to get money out of it.... not being racist, my wife is Jewish...I can't see anybody buying a portrait like that, and then hanging it on their wall as a keepsake... true the photo is intriguing..... but why did this have to go to court in the first place...... couldn't it have ended with an..

"okay, okay, I'll take it out of the collection, and here, take it with you and give it to your son as a present, please!..it is a lovely image of you btw"

...and that would be the end of it... sheez! what have we come down to? we then should be able to all the security companies and the government for grabbing our images everyday without our permission... who knows? ..maybe one of those could be used to falsely incriminate you sometime....

June 02, 2011 5:32 PM  
Blogger JustBane said...

I would have done nothing differently except... at the entrance to the scaffolding - a piece of paper taped to it saying "Warning: This scaffolding under photographic surveillance"... My guess is many would have ignored it and just walked through anyway. I get my shot and little bit of backup if it goes to court. As far as getting paid for it not being ethical... well I think that can be argued from many points. I myself would not have removed the image. That attitude might cost me at some point but I stick to the argument that what I shoot with my camera is mine... If it's a public place and you are in front of my camera well then I am sorry but you are in it.

June 04, 2011 2:41 PM  
Blogger ewan said...

Getting back to the photography side of things, it's a simple and effective way to capture powerful images in pedestrian (!) situations. Here's how I ran with it: http://ewannicholson.ca/blog/?p=207

June 06, 2011 12:21 PM  
Blogger Thomas Churchwell said...

This is NYC. 24 hour surveillance by the city of NY. Earthcam Times Square and there are hundreds of people walking by. Snap away. If you live in NYC do you know how many pictures you are in from tourist taking pictures of anything and their family?
Go to the bookstore and pick up a book about NYC. You will see hundreds of faces. Go to FlickR and see hundreds of faces in NYC. It's ok. Us New Yawkers are used to it and don't care. When your here, snap away.

June 11, 2011 9:56 AM  
Blogger Davidikus said...

Surely, this is Isabelle Huppert in the first picture? He did not catch her unaware?

http://davidikus.blogspot.com/
http://www.davidranc.com

June 11, 2011 12:34 PM  
Blogger Jonathan said...

Photographers come in all kinds of varieties. What one person considers ethical another may not. What it comes down to is what is legal. Taking photographs on public streets is completely legal and is covered under the 1st amendment under free speech. Imagine if every photographer had to get permission take pictures of people, many great images of the last century would likely be unable to be exhibited. It is completely legal to sell those pictures as well, in the context of art and journalism. Where it becomes illegal is when the photographs are used for advertising without the subjects consent. You can't sell a product and use someone's likeness without a model release. diCorcia works in both the commercial and fine art worlds. The image in question that was related to a lawsuit was never used for advertising purposes. Do a little research about the freedoms we enjoy as photographers and try and imagine what the world would be like if we had more restrictions on who or what we could photograph.

June 12, 2011 4:46 PM  
Blogger Richard said...

Here is a strange twist. Boston police arrested a bystander using a camera phone video recording them beating an individual in Boston Square. It turns out he is an attorney and they threatened him with never being able to practice law again if convicted.

Although the criminal charges were dismissed by the court as lacking merit, the civil rights suit he filed is before an appeals court at the present time. The police have argued to the court that they have the right to arrest anyone, including news people, photographing anyone in a public place without having received permission to do so.

To top it all off, it appears that portions of the video were erased while in possession of the authorities.

http://www.boston.com/community/blogs/on_liberty/2011/06/an_innocent_man_defends_free_s.html?p1=Well_Community_links

June 13, 2011 5:11 PM  
Blogger FCNphotography said...

In reply to an earlier comment about the importance to note that he was sued by an Orthodox Jew. In their religion, they do no not allow being photographed. Obviously then, he was upset that he was photographed without his permission, and then to top it all off have the image used in an art gallery. IMO that incident was pointed out to show why it would be unethical to not get the subject's permission, especially since we live in a country with such diversity and so many different religions.

This is the comment I am referring to btw =)

RedTerror said...

I am curious why the fact that the man who sued was an orthodox jew was a relevant detail in the story. The video points it out as a side-note (and the post echos it in a similar side-note style), but I don't follow why it's important.

If the plaintiff were a black man, would that have been pointed out?

June 14, 2011 7:59 PM  
Blogger Akshay Singh Jamwal said...

I'm a little amazed at how many people think that what the photographer did was ethically or morally reprehensible.

Have any of you people that are suggesting that the photographer should have essentially äsked for permission"looked at a copy of OK!, Hello, US or any other paparazzi-driven magazines?
Or is the contention that it's ok to take candids only as long as the subject is a celebrity?

In this instance, a judgment in the plaintiff's favour would undoubtedly set a pernicious precedent for anybody with a camera on the street.
Street candids aren't as easily taken today as they were in Cartier Bresson's era, as someone here has already pointed out.

Food for thought: if a painter or sketch artist drew likenesses of passersby and sold them, would anybody have a problem?

But hey, photographers aren't artists, right?

June 18, 2011 2:57 AM  
Blogger Akshay Singh Jamwal said...

I'm a little amazed at how many people think that what the photographer did was ethically or morally reprehensible.

To anybody who is of the opinion that the photographer should have " asked for permission", have you looked at a copy of OK!, Hello, US or any other paparazzi-driven magazines?
Or is the contention that it's ok to take candids only as long as the subject is a celebrity?
A public space is a public space. If a celebrity is fair game, so are you. It's not like the photographer walked into someone's home.

In this instance, a judgment in the plaintiff's favour would undoubtedly set a pernicious precedent for anybody with a camera on the street.
Street candids aren't as easily taken today as they were in Cartier Bresson's era, as someone here has already pointed out.

Food for thought: if a painter or sketch artist drew likenesses of passersby and sold them, would anybody have a problem?

But hey, photographers aren't artists, right?

June 18, 2011 3:05 AM  
Blogger Michael Kitada said...

Hi David,

I've been a follower for a few years. Thanks for the inspiration and education. My background is a bit like yours: Photojournalist at the Orange County Register for 17 years, left to start my own photo business and now I do that and teach as an adjunct in Southern CA. I wanted to reach out to you, and I figured this was the best way. I have a blog that I started a few years ago. Recently, it morphed into something I call, i365project.com. I post everyday about an image and what inspired me to take it. Sometimes I teach about it and sometimes I just share about it.
I'd love for you to take a look(it's been everyday since the end of November 2010).
If it's something you think could benefit the myriads of beginners you have following you, great.
If not, thanks in advance for looking.
Again, thanks for giving back to the photo community with education that is invaluable and a place where we image makers can all huddle together and laugh, rant and share.

If you do ever want to chat, here's my contact info:

Michael Kitada
michael@michaelkitada.com
www.i365project.com
714.422.9193

All the best,

Mike

June 20, 2011 4:06 PM  
OpenID chrisnemes said...

Not cool, in my opinion.
Here in our city we have a fairly known photographer who does exactly that - candid portraits with a tele.

The problem I see with this is that sometimes the subjects are captured in rather unflattering poses (eating, checking the nose etc.).

Moreover, the pics are displayed in Facebook albums on photographer's page where everyone can post comments. It's just infuriating to see others sitting and spilling jokes on others' pics taken without their consent.

I find the whole thing a voyeuristic self-gratifiying activity.
My opinion.

June 22, 2011 12:52 PM  
Blogger David H said...

Here's another thought to throw in to the mix: yes, it is going to be a link, but to a news agency in British Columbia, Canada.

http://www.ctv.ca/CTVNews/TopStories/20110622/social-media-vancouver-canucks-110622/

This link refers to the recent riots here over the Stanley Cup (it's a hockey thing) and the public-sourced pictures that have been taken. Those images are now being used as evidence, to identify those involved, and face-recognition software use has been approved, subject to a court order.

So IS there an expectation of privacy in a public place? Is this going to be the last time it's an issue? Will that be included in the challenge?

June 22, 2011 8:15 PM  
Blogger ChibaCityFunk said...

Recommendation:

"Train Your Gaze: A Practical and Theoretical Introduction to Portrait Photography" by Roswell Angier.

I know the work of diCorcia through this book. It is easily the best book about portrait photography ever written. (It also deals with Crewdson.)

The Book has changed my approach to photography dramatically.

June 23, 2011 3:06 AM  
Blogger carlos benjamin - benjphoto.com said...

I'm chiming in a bit late and haven't read all of these posts, but just had to comment on MarcWPhoto's "Full stop. Period. approach in commentary where he doesn't understand the law and wants to infringe someone else's rights.

If these images are sold as art pieces, they are not commercial works. There are all kinds of folks who misunderstand this and want to strip the rights of photographers from them. These kinds of images are fine for editorial usage in MarcWPhoto's eyes, but that's as much a commercial use as an art print in the sense that the photographer gets paid, but even more so since the publication uses images to sell their paper or magazine, etc.

Art prints would have to be the least commercial use of images and has been protected by law and the courts for some time now. I would hate to see an absolutist who says that's it, no compromise, this guy was wrong, full stop, period to be able to strip away the long held rights of many photographers, but I fear we are headed in that direction.

June 27, 2011 8:41 PM  
Blogger carlos benjamin - benjphoto.com said...

Lux Umbra said... "My issue is that he is selling these prints for tens of thousands of dollars. The images are in a book. They are being used to promote his gallery shows all over the country (and I assume, world). This, to me, is clearly a commercial venture at this point. While the original inspiration may be artistic (I think it is) the subsequent actions have gone far beyond that."

So it's only art if the artist starves? An artist can't be successful?

Lux also said... "It bothers me when I see examples of photographers not respecting the subjects."

I would argue strongly that he did respect the subjects or these photos would never have seen the light of day. It is his respect of the subject that made him press the shutter in the first place and even more respect was doled out when he edited the photos down to the 17 that were part of the series. That's a great deal of respect.

Lux further stated.... "With the exception of legitimate news coverage, I don't feel that people should just be "available" to use so directly as a money maker for an artist."

But news gathering for profit may make far more than this artist might and could show these same people in the midst of suffering and that's more noble? And make no mistake, news gathering agencies are in it for the profit, which is why staff photographers get cut when the profits are down.

It bothers me that photographers in one branch of the industry will diss on photographers in completely different line that they may not be able to get their head around simply because they don't understand what's being accomplished. Listen to what he was trying to explore and show in these images - those are things that could not possibly have been done any other way. You explore different subjects in different ways than he does and your relationship to a client is not the same as his relationship to a subject who is not a client.... unless they want to be. You can't compare this work with commercial work. They're not the same.

June 27, 2011 9:54 PM  
Blogger carlos benjamin - benjphoto.com said...

Raleigh Beringer said... "I agree that there is no longer any reasonable expectation of privacy in a public place any longer."

There has never been a reasonable expectation of privacy in a public place. By definition such places are public and not private. It's unclear thinking like this that photography in public is somehow a violation of a non-existent right that further works to erode our rights as photographers. If we take away the rights of street photographers, then we open the door for more rights to be whisked away. Do we really want that?

June 27, 2011 9:55 PM  
Blogger carlos benjamin - benjphoto.com said...

Jake said... "his complaint was that it violated his right to religious freedom by making a 'graven image.'"

Except the prohibition in their law is against the Jews making the graven images for themselves. There's a long-standing tradition of non-Jews making graven images in, of and around Jews. Sounds like he hoped to play on the ignorance of the courts to win the law suit lotto.

June 27, 2011 9:55 PM  
Blogger carlos benjamin - benjphoto.com said...

David Finkel Photography said... "To me, this makes the "public" location not a clear cut case - now at least some aspects of it are private."

How does putting up flashes make a public place private? It may make his interpretation of the place a bit more exclusive, but I've taken lots of photos with someone else's flash in the picture, so it's not strictly even exclusive. Trying to argue that it's private is ludicrous since I'm pretty sure not a one of his subjects would think, "A flash went off. I can strip off my clothes now and won't be seen" which is why it's illegal to photograph people in restrooms and changing rooms, where they have a reasonable expectation that they can strip off and still be private.

June 27, 2011 10:04 PM  
Blogger carlos benjamin - benjphoto.com said...

SJCT said... "Just because something is legally okay, doesn't mean that we are ethically okay to go ahead with an action."

But are you really arguing that you want others to be able to impose their ethics on you? I'll bet I have some ethical qualms about certain things that would make you livid if I tried to impose them on you.

June 27, 2011 10:08 PM  
Blogger carlos benjamin - benjphoto.com said...

Sorry to flood your comment area... and so late in the game, David. I think many of the things being posted need a reasoned counter. We're in so much danger of losing the right to photograph publicly that even news photographers are being attacked by police for filming and citizens are being told to turn off their cameras when the news gatherers aren't present to collect the images.

June 27, 2011 10:11 PM  
Blogger MarcWPhoto said...

Which is worse: necrothreadia, or jumping on to the end of a huge thread and blithely announcing that you haven't bothered to read it but you have the One True Answer and everybody else was just wasting their time until you showed up to resolve the matter?

It's an interesting question. Me and my law license* will go ponder our ignorance and foolishness regarding same. Somebody bring me a bottle of gin. Nothing washes away the taste of knowing you've been practicing IP law for fifteen years but still apparently know less about it than random photographers on the Internet like a nice gin and tonic. Peppy!

*Actually I have two law licenses but who's counting?

June 28, 2011 8:39 AM  
Blogger bronney said...

I didn't read through all the comments but this post got me thinking. What if it wasn't a photograph but a hyper realistic drawing of your face, or the scene where I can clearly identify your face?

Then exhibit it, perhaps sell it. I wondering where I'd stand ethically which I am still in the process of thinking through.

What if I took a photo, then draw it, then exhibit it? Where do we draw.. hehe draw the line?

I shoot in the street sometimes, 99% of the time, I don't talk to the subject after. Mostly I talk to them before the shot which some argue, destroys the moment. Some, I don't talk at all.

What if I am in Japan and I don't speak Japanese? Ethically, should I shoot? What about Mongolia? All these questions I guess you can only answer for yourself and shut up the noise from everyone else.

May 23, 2012 12:35 AM  

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