Editorial Use of Person’s Photograph Is Confirmed

In general, you may photograph people in public. The use of those photographs can be restricted due to a privacy law called the “right of publicity.” While the specifics of the law vary by state, it prevents the unauthorized use of a person’s likeness for commercial purposes (for advertising or trade). It usually does not apply if the image is used editorially, which includes fine art.

Fortunately for photographers, this law recently was put to the test and it passed. From 1999 until 2001, a photographer named Philip-Lorca diCorcia took photos of people in Times Square. His camera was set on a tripod and strobe lights were placed across the street. The project culminated in an exhibition called “Heads” at the Pace/MacGill Gallery in Chelsea, New York.

One of shots from the project was of Erno Nussenzweig, an Orthodox Jew and retired diamond merchant from Union City, N.J. He sued diCorcia and Pace for exhibiting and publishing the portrait without his permission and for profiting from it. He asked the court for an injunction to stop sales and publication of the photograph and for $500,000 in compensatory damages and $1.5 million in punitive damages. Of note, Nussenzweig complained that use of the photograph violated his constitutional right to practice his religion, which prohibits the use of graven images.

In an affidavit submitted to the court on Mr. diCorcia’s behalf, Peter Galassi, Chief Curator of Photography at the Museum of Modern Art, said, “If the law were to forbid artists to exhibit and sell photographs made in public places without the consent of all who might appear in those photographs, then artistic expression in the field of photography would suffer drastically. If such a ban were projected retroactively, it would rob the public of one of the most valuable traditions of our cultural inheritance.”

The judge in the case dismissed the suit on First Amendment grounds that the possibility of these photographs is the price every person must pay for a society where information and opinion freely flows. While Nussenzweig is appealing, the good news is that photographers may continue to photograph people in public and may use those shots editorially without the subject’s permission.

Take my advice; get professional help.

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