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Tuesday, February 14, 2006

Don't Say Cheese


A New York judge has ruled that an Orthodox man does not have the right to his own image:

A Manhattan judge has dismissed an Orthodox Jewish man's lawsuit, finding that a photo taken of him on a street and sold for hundreds of thousands of dollars is art — not commerce.
Emo Nussenzweig filed the suit on the grounds that his religion forbids photographs because they're graven images, according to his lawyer, Jay Goldberg.

"It puts him in a disgraceful light within his community," Goldberg said.

"It violates the tenets of the particular religious sect to which he belongs. He shouldn't be put in a position where people might think he sold out for a few bucks."

But Manhattan Supreme Court Justice Judith Gische ruled that the head shot showing Nussenzweig, with a white beard, a black hat and a black coat, is art — even though the photographer took it surreptitiously near Times Square in 2001 and then sold 10 prints of it at $20,000 to $30,000 each.


Apparently, there are pictures of this man hanging in homes all over the world - and he has no control over it. Some of the images were 3 feet by 4 feet large. The law dictates that photos cannot be taken without the subject's permission and used for commercial purposes, however, if they are deemed as art, then it is not prohibited by law. Of course, some might consider the hundreds of thousands of dollars the artist sold the photos for to be a commercial transaction, art or not. Some might also think that the subject should be entitled to a cut of the profits, or some sort of fee, for the use of his face.

I, for one, would be extremely uncomfortable with the knowledge that as long as they fall in the (subjective) category of art, photographs of an unwilling subject can be taken and sold, and that the images could end up anywhere.

28 Comments:

Blogger Jewish Blogmeister said...

That is ridiculous!

3:14 PM  
Blogger Ger Tzadik said...

The law is pretty clear in this case...he never had a chance. Something to keep in mind when you wander around out in public.

3:31 PM  
Blogger Ezzie said...

What's the seperation?!

3:37 PM  
Blogger StepIma said...

Wow.

This sort of hits "home" for me... on Sunday I went out during the blizzard and fell down a few icy steps going down into the subway station (I'm fine, thanks ;) ) I felt like a total dork. Anyhow, as my feet shot out from under me, I saw a guy at the bottom of the stairs snapping my photo. I said "I do not give permission to take my picture." I actually said this. The guy said "I didn't take your picture." Meanwhile, he was advancing the film. It wasn't even a digital camera. Like I'm an idiot. I said "I know you took my picture. I saw you. I don't give permission." Yeah, I said that too. As if it would really help anything. So now I'm a dork and a weenie.

So I go and get on the subway, but I already know that whoever that guy is, he has my picture falling butt first down the subway stairs (maybe I should have gotten his name so I could sue the MTA for not shovelling or putting salt down on the steps), and I have no recourse for whatever he wants to do with it... because it was in a public place.

So if you see someone selling pictures of a dorky girl in a pink striped hat falling down the subway steps, don't pay $30,000 for it. Or I'll be really ticked off.

5:00 PM  
Blogger Zoe Strickman said...

I don't know about that. From a law school student's point of view, a person should have a right whether or not to have his image placed and sold as art. Perhaps he should have sued under libel or one of the false-light or privacy torts. Maybe then he would have won.

5:38 PM  
Blogger Zoe Strickman said...

Hindsight, it's actually a bit funny.

5:40 PM  
Blogger Jack's Shack said...

This is why I carry a camera, so that I can take pictures of the people taking pictures of me. See how they like it.

5:46 PM  
Blogger Henchy said...

Sounds to me like a bit of anti-semitism.

6:00 PM  
Blogger DovBear said...

Oh please. Anti Semitism?

It doesn't sound to me like the case was decided badly, and I can even understand the reasoning behind the "art exception." (though I agree the artist should be mentch and give the guy some of his earnings)

What really galls, though, is the garbage his lawyer is selling:

"His religion forbids photographs because they're graven images??!!!"

and

"It puts him in a disgraceful light within his community,???!!!"

Sorry, didn't you say this man was Jewish? Since when do we object to photos?

6:24 PM  
Blogger DovBear said...

And one more question for the lawyer. You say, "He shouldn't be put in a position where people might think he sold out for a few bucks."

Yet you were suing? For money? So let me get this straight: If the artist had coughed up some dough the disgrace of being a sell out would have dispaeared??

6:27 PM  
Anonymous shmutzy said...

I agree that the decision is a little unsettling, but in respect of Mr. Nussenzweig's wishes, do you think the photo should be posted here?

6:40 PM  
Blogger Still Wonderin' said...

Moronic. Sound like Erno has a million dollar mug but a real crappy lawyer. Isn't life ironic?

6:46 PM  
Blogger Still Wonderin' said...

""It puts him in a disgraceful light within his community," Goldberg said."

oy! now he won't get a shidduch.

6:47 PM  
Blogger MUST Gum Addict said...

Oh PLEASE. The guy is only upset because someone else is making tons of money from him, and he gets nothing for it.

Nice picture though -- anyone know where I can buy a nice print? Would go nice in my den...

8:23 PM  
Blogger SephardiLady said...

People will buy these photos for $20,000 or $30,000?!?!?!?!

Ladies and gentleman, I think we have another piece of the puzzle to solve the tuition crisis!

10:02 PM  
Anonymous Rabbi Dr. said...

The permission to take photographs of people in Halacha is by no means clearcut. Normative practice among most Jews is to allow it, but there have always been a significant minority, particularly amongst Chassidishe poskim who did not allow it. Although I've never seen it in print, it is said that this was the position of the Chafetz Chaim which is why there are so few pictures of him (real pictures). Any quick perusal of the sugyah will leave you scratching your head as to why we all don't prohibit it, but the majority of poskim somehow worked out a leniency over here.

9:11 AM  
Anonymous anon said...

but, orthomom, if you believe that this man has a right to the privacy of his image -- a reasonable argument of ethics -- why post the picture yourself?

5:25 PM  
Anonymous tzirel said...

from what i understand, youre supposed to have the person sign a model release form-or atleast ask their permission (even if after the shot is your only chance)

7:51 PM  
Anonymous Anonymous said...

I, for one, would be extremely uncomfortable with the knowledge that as long as they fall in the (subjective) category of art, photographs of an unwilling subject can be taken and sold, and that the images could end up anywhere.

How can a photographer work if he or she has to think about getting consent signatures from everyone in his or her photograph? Goodbye sports photography with fans in the background. Goodbye panoramic photos of protests. Goodbye candid front page photos in the newspaper.

Is that what you want?

4:28 PM  
Blogger debka_notion said...

I do in fact know one Jew who does object to having his picture taken on religious grounds. So it is possible that the gentleman in the article is in fact serious...

6:29 PM  
Blogger YMedad said...

I'm with the position that he should have sued to share in the profits. If this pic was "art" then he must have been a "model". Isn't there some sort of "relationship" here that a smart lawyer could have utilized?

5:28 PM  
Blogger Daniel Q Blog said...

I think the photographer doesn't have to ask for permission, but the guy or girl should give the picture's some money. Agreeance with Dov and others...

Additionally, I would have sued on the basis of harassment or ethnic discrimination or some other sueable thing if it mattered that much to me.

I do find the picture taking thing halachically complicated especially since it mostly happens when people see Jews walking on Shabbo and Yom Tovs...

Q

7:20 PM  
Blogger Ba'alat Teshuva said...

Perhaps he should have sued under libel or one of the false-light or privacy torts.
How is he going to sue for libel? Libel is the written publication of something about someone else which is not true and damages their reputation. The photographer would argue that the photo is an acurate representation of the man and move for summary judgment.

2:15 PM  
Blogger Ba'alat Teshuva said...

Step Ima--It's usually illegal to take photographs on public transportation property without a license. If the guy sells them you might try using that angle...

;-)

2:17 PM  
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7:22 PM  
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