Lawrence Barth, an attorney who specializes in visual arts at a Los Angeles firm, recently spoke to a class of 20 students at the Art Center College of Design in Los Angeles about artists’ legal rights. As usual, a photography student raised the question: could a student show and publish prints of street photographs in cases where they didn’t get a release from the people in the image?

Back then, Barth based his answer on the free speech protections granted by the First Amendment, but he couldn’t cite a legal case supporting the claim. After a February ruling in a privacy case, Barth said his answer will now be an emphatic yes.

In the decision, New York State Supreme Court Justice Judith J. Gishce ruled that a photograph of Erno Nussenzweig is protected by freedom of expression. As a result, many photographers are breathing a collective sigh of relief, believing as Barth asserted that a hazy area of privacy law has been clarified.

“If they ruled differently, photography would never be the same,” said photographer Yoav Horesh.

The ruling is important, Horesh said, because street photography opens people’s eyes to what’s happening in cities around the world at specific times.

Besides, he added, surveillance cameras photograph people daily. More than 2,400 surveillance cameras record people in Manhattan, according to New York Civil Liberties Union volunteers.

“If you’re thinking about invading privacy,” he said, “there is no privacy. You’re being photographed everywhere.”

The case brought by Nussenzweig was provoked by Philip-Lorca diCorcia’s 1999 series of intimate close-ups taken in Times Square.

DiCorcia captured the expressions of strangers by rigging strobe lights to scaffolding and shooting unassuming strangers when they steppedon a mark on the sidewalk. One of his photos showed Nussenzweig, an Orthodox Jewish man with a prominent white beard, black hat and black coat.

DiCorcia later exhibited his work in a 2001 show called “Heads” at Pace/MacGill Gallery in Chelsea, selling 10 prints of Nussenzweig’s photo for $10,000 to $30,000 each.

Last year, Nussenzweig learned of the photograph and filed a $1.5 million lawsuit against diCorcia and Pace. Nussenzweig, an Orthodox Hasidic Jew and a member of the strict Klausenberg Sect, claimed that the photo invaded his privacy and violated his religion by interfering with the second commandment’s prohibition of graven images.

Nussenzweig’s lawyer, Jay Goldberg, has filed an appeal. In his brief he argued that because the photograph was sold commercially, it’s subject to New York’s privacy laws.

“The state has a right to protect its citizens from the indignity of the use of their image,” Goldberg said during a recent interview. “That’s exactly what courts have held to be appropriate for the last 100 years.”

Goldberg hopes Nussenzweig’s appeal will reinforce that right of individual privacy. For some people on the street of Times Square, that would be welcome news.  New Yorker Tyrone Perkins said that if his face appeared on a gallery wall, he would want to be paid.

“I would try to get in contact with the person,” said Perkins. “You could scan—put my face on somebody else’s body,” he added, expressing concern that he could end up the unwitting model for a pornography spread.

Others like Graham Nelson felt no trepidation about being shot and framed for an art exhibit. Standing beneath the competing electronic billboards of Times Square, Nelson claimed that such a photograph would be “the greatest, single publicity I could ever get without paying a dime.” 

While some are more comfortable than others about appearing in the crosshairs of an art  photographer’s lens, there’s no doubt where photographers stand. They are relieved to have this case behind them.

“We count on the fact that if you’re walking down the street you’re a part of the fabric of society,” photographer Thomas Roma said. “If that suit went through successfully, it would change the way we live.”

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Case summary:
In 1999, Philip-Lorca di Corcia took a series of intimate close-ups taken in Times Square, capturing the expressions of strangers with strobe lights if they stepped on a mark on the sidewalk. DiCorcia later exhibited his work in a 2001 show called “Heads” at Pace/MacGill Gallery in Chelsea, selling 10 prints of Nussenzweig’s photo for $10,000 to $30,000 each.
Last year, Nussenzweig learned of the photograph and filed a $1.5 million lawsuit against diCorcia and Pace, charging that the image violated his right to privacy guaranteed under the New York state civil rights statute, Sections 50 and 51.
Judge Judith Gische ruled in favor of di Corcia, saying, "The First Amendment protection of art is not limited only to starving artists."

Blogs and discussions:
http://www.showstudio.com/forum/topic.php/1294
http://chaptzem.blogspot.com/2005/06/heimishe-man-in-photograph-sues-for-1.html
http://www.boingboing.net/2005/07/01/
photographer_sued_by.html
http://www.richardsilverstein.com/tikun_olam/
category/jews-judaism/
http://www.lefterer.com/?page=feature&id=300
http://forums.dpreview.com/forums/readflat.asp?
forum=1000&thread=17164866&page=1
http://www.lightstalkers.org/graeme@lightstalkers.org
http://loreto.weblogs.us/archives/915
http://barista.media2.org/?p=2013

Other
http://www.photopermit.org/

Web articles
http://www.gothamist.com/archives/2005/06/26/
photographer_sued_for_taking_portrait.php
http://www.jmcolberg.com/weblog/archives/001665.html