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View Full Version : Photographer Allowed to Sell Photo Taken of Unknowing Subject


Jason Dunn
02-15-2006, 12:00 AM
<div class='os_post_top_link'><a href='http://www.gothamist.com/archives/2006/02/14/good_news_for_p.php' target='_blank'>http://www.gothamist.com/archives/2006/02/14/good_news_for_p.php</a><br /><br /></div><i>"Some good news for photobloggers and fans of street photography: a Manhattan judge has ruled photographer Philip-Lorca diCorcia was well within his rights to sell copies of this photograph of an Orthodox gentleman. The shot was taken as part of diCorcia's "Heads" project, which involved shooting pictures using a concealed camera."</i><br /><br />As much as I enjoy photography, the idea that I could take a picture of a stranger, reproduce it and sell it, all without their permission...is abhorrent to me. There's something very wrong with the idea that it could occur under current laws. How do you photographers feel about this?

ctmagnus
02-15-2006, 12:16 AM
As much as I enjoy photography, the idea that I could take a picture of a stranger, reproduce it and sell it, all without their permission...is abhorrent to me. There's something very wrong with the idea that it could occur under current laws. How do you photographers feel about this?

I don't consider myself a photographer per se, but I have to agree with you. Doubly so in this situation, as the camera was concealed.

mcsouth
02-15-2006, 01:59 AM
Unfortunately, in today's environment of reality and "shock" TV, this ruling doesn't surprise me. I would have to wonder about the possibility of a civil lawsuit filed by someone whose visage was published, but I am no lawyer, so who knows.

In my opinion, this comes down purely to a respect and consideration issue. Many of these folks that insist that this type of thing is "OK" would probably be the most vocal and upset if someone was doing it to them. You know, like the folks who speed around town, but then get upset at others who speed through their neighbourhood - never realizing the irony of their actions.

It seems unfortunate that we are evolving into a world where respect for others is rapidly disappearing. Here's a clue, folks, it is not the fault of technology!!! It has everything with morals and common decency! The fact that technology allows us to do certain things does not make it right. (You can probably tell my position on music and movie sharing from that statement!)

Public photos will always be part of the photographer's "palette", but there is a big difference between group or distant shots where individuals are not easily distinguished, photos of individuals whose permission has been sought, and this issue at hand, at least in my opinion.

Damion Chaplin
02-15-2006, 03:29 AM
As a photographer, I think it's great. I have a series of pictures of tourists taking pictures (don't ask) and I certainly didn't get their permission for it. 'Course, I'm not selling them for thirty-freaking-grand either (I'm not selling them at all).

As a private citizen, I'm horrified. I sure wouldn't want someone to make a million using me as an unwitting model just because I'm wearing their line of clothes or using their piece of technology. Not that that's ever going to happen (I'm not exactly a model), but it's definitely a principle thing.

As an American, I am totally unsurprised. I expect at any time they will rule that as soon as you leave your own private property (i.e. your house) you are knowlingly waiving all privacy rights. We already have similar laws in place. Anything you throw in the trash is no longer considered private, even if someone else did it with your property. If I walk into a bank (or liquor store), I am relinquishing any 'right to privacy' because it's well known that all banks (and liquor stores) are monitored via camera. You're already being recorded, and furthermore you know it. I see a time, eventually, where every street corner is monitored by a camera. It's just about already true in many cities. The law will have no choice but to get with the times and acknowledge that there is no privacy outside of your own home.

I sure don't agree with that philosophy, but I recognize it as a sad truth. :cry:

jeffd
02-15-2006, 03:30 AM
Meh. Imo, you cannot "copyright" images of yourself. If the means to get said image were illegal, sure. Namely photographing in private locations or copying someone ELSES picture (wich is indeed, property).

If your in public, all is fair game. Also the fact that these pictures taken had no names associated with them helps the photographers case. And really, I think you have insecurity problems if you get worked up about it. Just think, you are now in a work of art that will probably outlive you, and may even be the only thing you get remembered by in the future.

Damion Chaplin
02-15-2006, 03:39 AM
And I of course forgot to mention that in this case I wholeheartedly agree with the judge that this was art, not exploitation.
If I were the photographer though, I'd defitinely be giving him a piece of the pie, just for karma's sake (OK to not feel guilty about it :wink: )

sojourner753
02-15-2006, 03:22 PM
In my opinion, this comes down purely to a respect and consideration issue. Many of these folks that insist that this type of thing is "OK" would probably be the most vocal and upset if someone was doing it to them. You know, like the folks who speed around town, but then get upset at others who speed through their neighbourhood - never realizing the irony of their actions.


I agree with you. Unfortunately we're all well aware that different people have various levels of understanding or concern for respect for others. I think thats why laws are important. Most of us may never encounter a particular law because it coincides with what we believe anyway. There are some who will do whatever they can get away with. Sometime regardless of whether its at someone else's expense.

To be honest, we all have moments where we find ourselves authors of the irony.


Meh. Imo, you cannot "copyright" images of yourself. If the means to get said image were illegal, sure. Namely photographing in private locations or copying someone ELSES picture (wich is indeed, property).

If your in public, all is fair game. Also the fact that these pictures taken had no names associated with them helps the photographers case. And really, I think you have insecurity problems if you get worked up about it. Just think, you are now in a work of art that will probably outlive you, and may even be the only thing you get remembered by in the future.

I think this probably falls under the fog bank of "with in reason". My question would be, where is the line drawn? Is it okay for a clothing manufacturer to run an entire ad campaign using unsuspecting and uncompensated individuals to market their products? No need to pay for costly and fickle models. Civilians are cheap, well actually free.

[FLIP-SIDE]
Of course that begs the question, should companies start including EULA and Privacy Policies with their products?
[/FLIP-SIDE]

Who knows, its complicated, I think this goes back to a need to legislatively define property. And what about myself do I own. Or perhaps it already has been.

[OBLIGATORY DISCLAIMER]
I'm not a lawyer, nor do I play one on TV. :wink:
[/OBLIGATORY DISCLAIMER]

Jason Dunn
02-15-2006, 05:18 PM
As a photographer, I think it's great. I have a series of pictures of tourists taking pictures (don't ask) and I certainly didn't get their permission for it. 'Course, I'm not selling them for thirty-freaking-grand either (I'm not selling them at all).

And that's the difference. If someone wants to take a picture of me in a public place for their photography collection, fine. But if that someone wants to use that photo commercially - to sell it, to put it in a magazine, whatever - then the permission of the subject should be required by law. That's what really pisses me off about this - not that this guy was taking pictures of people - but that he's making money off of it and the person in question, who's visage is the one selling, is making nothing.

The religious beliefs of the person in question also add an interesting element to this equation - I find it very sad that the photographer, and the court, wouldn't respect that in any way. But, even without religious beliefs, a person should have control over his/her image being used publicly.

What's next, magazines like MAXIM going to public beaches and shooting photos with long telephoto lenses while hiding and using those images instead of paid models, all without the permission of the people in question? It's already done with famous people - the covers of most trashy tabloits are made up of blurry photos of stars at their worst - and somehow we accept that.

This is definitely the dark side of photography. The movie Paparazzi (http://www.imdb.com/title/tt0338325/) sums it up nicely - there are certain photographers out there that are truly scum. :evil:

Roger Krueger
02-15-2006, 09:18 PM
Is it okay for a clothing manufacturer to run an entire ad campaign using unsuspecting and uncompensated individuals to market their products? No need to pay for costly and fickle models. Civilians are cheap, well actually free.
That's still VERY, VERY clearly illegal.

This decision was solely about whether selling limited-edition prints could be considered art, not commerce. It was implied that even open-edition prints could be a problem.

[
The religious beliefs of the person in question also add an interesting element to this equation - I find it very sad that the photographer, and the court, wouldn't respect that in any way.

The whole religious objection angle is dubious at best.

Here's an article on this (search the page for "Nussenzweig", its about halfway down)

http://chaptzem.blogspot.com/2005_08_01_chaptzem_archive.html

that points out that, while 50 years ago the Klausenberg Hasidics (Nussenzweig's sect) were anti-photo,

""But that prohibition has weakened in the last two generations," Hertzberg said. "I know very few people who still have a problem with it."

I've even shot a Chanukah event for an Orthodox co-worker. Due to the outreach nature of the event I'm guessing she's Lubavitch Hasidic--they're the only ones who do that sort of thing--but I never explicitly asked, and she's since quit. But no one objected, and there were several folks with P&amp;Ss, and one with a dRebel.

So maybe he's one of the very few people, maybe it was something hard to disprove that sounded really good in a lawsuit.

If someone wants to take a picture of me in a public place for their photography collection, fine. But if that someone wants to use that photo commercially - to sell it, to put it in a magazine, whatever - then the permission of the subject should be required by law.
The whole legal point of this case is that limited edition prints are NOT commercial use, no matter how much money you make.
This is definitely the dark side of photography. The movie Paparazzi (http://www.imdb.com/title/tt0338325/) sums it up nicely - there are certain photographers out there that are truly scum. :evil:
Some of the best, most interesting photographers ever have spent their entire careers--and yes, making money at it--taking unreleased candids: Garry Winogrand is my favorite, but Robert Frank, Henri Cartier-Bresson, Dorthea Lange, Walker Evans and others have done great, important work in this area. The dark side? SCUM? Nonsense.

Jason Dunn
02-15-2006, 11:30 PM
Welcome to the site Roger! Always good to have someone new with opinions to share. :-)

This decision was solely about whether selling limited-edition prints could be considered art, not commerce. It was implied that even open-edition prints could be a problem.

Ah. I wasn't aware of that. Perhaps this is just my simplistic view of the world, but if I give someone a product and they give me money, that's called commerce. Art? Since when is selling art not considered a commercial venture? My brother is a painter, and when he sells one of his works, he gets money and pays his bills with it. That sure seems like commerce to me.

Some of the best, most interesting photographers ever have spent their entire careers--and yes, making money at it--taking unreleased candids: Garry Winogrand is my favorite, but Robert Frank, Henri Cartier-Bresson, Dorthea Lange, Walker Evans and others have done great, important work in this area. The dark side? SCUM? Nonsense.

I have no idea who any of those people are, but if they're the kind of people who climb trees with 500mm telephoto lenses to take photos of someone famous sunbathing, then yes, I think they're scum. I find no redeeming value in a human being that invades the privacy of someone to sell photos to a magazine. It's a deplorable way of making a living, and hardly "great, important work" if that's what you were referring to. Taking photos in a war? That's great important work. Taking photos of a nude Jennifer Aniston tanning? Nope.