Excerpt From Sunday's NYTs Arts & leisure section:
ARTS / ART & DESIGN | March 19, 2006
Art: The Theater of the Street, the Subject of the Photograph
By PHILIP GEFTER
A legal challenge to street photography was dismissed, but to many
artists, the fact that the case went so far is significant.
When Erno Nussenzweig, an Orthodox Jew and retired diamond merchant
from Union City, N.J., saw his picture last year in the exhibition
catalog, he called his lawyer. And then he sued Mr. diCorcia and Pace
for exhibiting and publishing the portrait without permission and
profiting from it financially. The suit sought an injunction to halt
sales and publication of the photograph, as well as $500,000 in
compensatory damages and $1.5 million in punitive damages.
The suit was dismissed last month by a New York State Supreme Court
judge who said that the photographer's right to artistic expression
trumped the subject's privacy rights. But to many artists, the fact
that the case went so far is significant.
The practice of street photography has a long tradition in the United
States, with documentary and artistic strains, in big cities and small
towns. Photographers usually must obtain permission to photograph on
private property — including restaurants and hotel lobbies — but the
freedom to photograph in public has long been taken for granted. And
it has had a profound impact on the history of the medium. Without it,
Lee Friedlander would not have roamed the streets of New York
photographing strangers, and Walker Evans would never have produced
his series of subway portraits in the 1940's.
Remarkably, this was the first case to directly challenge that right.
Had it succeeded, "Subway Passenger, New York City," 1941, along with
a vast number of other famous images taken on the sly, might no longer
be able to be published or sold.