Philip-Lorca diCorcia, Photography, and Privacy Law

I walked around with my camera waiting for things to happen – cliches, incidents – I leave it open. I am only partly conscious of what’s going on – there’s always more than what I expect, or less than what I hope. The instant where things occur is serendipity.

The main exhibit at Boston’s Institute of Contemporary Art right now is a massive collection of Philip-Lorca diCorcia’s photography. I was struck by his fantastic use of lighting in most of his work, especially the series of street photographs where “DiCorcia attached an elaborate system of strobe lights to construction scaffolding, and aimed them and his camera toward a fixed point on the the sidewalk [and] from 20 feet away, he operated the camera’s shutter and the lights, collecting images of passers-by.” The subjects are thus lit against a mostly black backdrop, which makes for fascinating portraits of daily street life.

Some conversation ensued while we were viewing the images about the laws governing the use of a person’s likeness in such photographs without their permission/knowledge. And oddly enough, one of DiCorcia’s subjects sued him for exactly that reason.

2005’s Nussenzweig v. DiCorcia pitted the photographer against retired diamond merchant Erno Nussenzweig with Nussenzweig claiming the photo violated his privacy rights under New York’s Civil Rights Law, which prohibits the use of a person’s likeness, without consent, “for advertising or for purposes of trade.”

Despite the fact that DiCorcia sold ten original edition prints of the photograph for $20,000-30,000 each, the court ruled in favor of DiCorcia and the gallery that initially showed the photographs, saying that the defendants’ uses of Nussenzweig’s likeness were not commercial – this was artistic expression (and therefor protected by the 1st Amendment.)

It’s interesting to me that the court is deciding/defining what constitutes “art.”

The fine print: many thanks to the ICA, Joseph, Mrs. Blankenship, and Wikipedia for helping me think through this.