Nussenzweig v. DiCorcia

Erno Nussenzweig (1922- ) in a portrait by Philip-Lorca diCorcia (1953- )

Nussenzweig v. DiCorcia is a New York County, New York Supreme Court case allowing the display, publication and sale (at least in limited editions) of “street photographs” without the consent of the subjects of those photographs.

The photograph at issue was taken by diCorcia on the streets of Times Square in Manhattan. DiCorcia attached an elaborate system of strobe lights to construction scaffolding, and aimed them and his camera toward a fixed point on the sidewalk. From 20 feet away, he operated the camera’s shutter and the lights, collecting images of passers-by – including Nussenzweig – without their knowledge. Nussenzweig’s photograph was exhibited at the Pace/MacGill Gallery from September 6, 2001 through October 13, 2001, and published in a book entitled Heads, co-published by Pace/MacGill. DiCorcia created ten original edition prints of the photograph, and no more will ever be printed. The entire edition was sold for $US 20,000-30,000 each.

The Lawsuit

In 2005, Nussenzweig learned of the photograph and filed a lawsuit, claiming that diCorcia and Pace/MacGill had violated his privacy rights under New York law. Specifically, he claimed that their conduct violated Sections 50 and 51 of New York’s Civil Rights Law, which prohibits the use of a person’s likeness, without consent, “for advertising or for purposes of trade.” Pointing to the fact that diCorcia and Pace/MacGill sold and published the photograph of Nussenzweig for a profit, Nussenzweig argued that such uses constituted “purposes of trade.”

DiCorcia and Pace/MacGill argued that the uses at issue were means of artistic expression, and thus were protected speech under the 1st Amendment to the U.S. Constitution and analogous provisions of New York’s Constitution. They also argued that Nussenzweig’s lawsuit was barred by the applicable statute of limitations, as it was filed more than one year after the photograph was first placed on display and for sale.

In a decision dated February 8, 2006, the trial court ruled in favor of diCorcia and Pace/MacGill, and dismissed Nussenzweig’s lawsuit. It ruled that the defendants’ uses of Nussenzweig’s likeness were not “commercial,” but rather were forms of artistic expression protected by the 1st Amendment. Accordingly, the court held that Nussenzweig could not block the publication, display or sale of the photograph containing his likeness, and that he was entitled to no money from the photographer, the gallery or the book publisher. The court also dismissed the lawsuit as untimely, holding that Nussenzweig had only one year to file suit after the picture was first “published.”

In March 2007, the dismissal was affirmed by New York’s First Appellate Division. All five justices of the appellate court agreed that Nussenzweig’s complaint was barred by the statute of limitations. Two of the justices wrote a separate opinion expressly upholding the trial court’s decision on constitutional grounds, as well.

Nussenzweig has been given leave to appeal the case to New York’s highest court, the Court of Appeals. Argument before the Court of Appeals is currently scheduled for October 2007.

source: wikipedia

8 thoughts on “Nussenzweig v. DiCorcia

  1. argh@! I hate it when people try to pull things like that because they think artists are rich. We are definately not. And what are these people doing, letting themselves be photographed at any rate? I personally always duck or turn when I see a camera, so should they if they do not want their likeness displayed. Honestly, what do you think is happening when you pose for a photograph?

  2. the people that were photographed didn’t realize it as the camera was about 20 feet away but there was an elaborate lighting system which would signal to someone that doesn’t want to be photographed that there is a camera somewhere close – a video camera, a still camera or tv or movie set close by…..

  3. Good to know. I just assumed that this person had to have some clue they were being photographed due to the dramatic, professional lighting used.

    Either way, street photography is such a sticky subject when it comes to selling and displaying the work after it is created. This is one of the main reasons I do not practice this sort of art very often. The last project I worked on, with people on the street, really got me thinking about that…the next time I go out, I will have them sign a model release just in case, you never know because the laws seem so flexible and arbitrary.

  4. artists not being rich? i dont understand that comment, and disagree, catorgizing us as poor individuals? not a mature comment at all.
    Although this picture is very interstesting. creepy with the red dot and the shadows in the back. very nice

  5. I can see both sides of the argurment on this. There are times when I’ve taken pictures of people in public who have had no idea that they were one of my subjects. I love the photograph that was taken, very dramatic. There is a reason why we are encouraged to have them sign a release though, to spare us the grief later.

  6. I think street photos are the best kinds of photos of people. They capture real people in real life settings. I definitely think it is fair game to take a picture of someone outside in public if it is for artistic means.

  7. Pingback: Street Photography | Alessandro B. Marazzi Sassoon

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