Photography and the Law

Five groundbreaking cases of photography in litigation

Taryn Simon, A Living Man Declared Dead and Other Chapters (Ein für tot erklärter Lebender und andere Kapitel), 2008–11, Auszug aus Kapitel XI (Courtesy: Gagosian Gallery & die Künstlerin)

Taryn Simon, A Living Man Declared Dead and Other Chapters, 2008–11, Excerpt from Chapter XI (Courtesy: Gagosian Gallery & the artist)

The Law has always been interested in photographs: not only what they capture as evidence but also who makes, owns, circulates and sees them. For the Law grasps the unique descriptive power of the photograph to trace and appropriate the world as an image and consign this image to limitless contexts. The fate of the photograph – including its disappearance from public view – has often been decided in a courtroom.

While legislation differs from country to country, the Law has traditionally regulated taking, circulating and using photographs for different ends. At one end of the spectrum, the Law grants individuals rights over photographs (privacy, copyright, publicity); at the other end, it censors photographic images on society’s behalf (indecency, pornography, child protection).

Whatever the legal case and country, a possessor of rights must be constructed and located in relation to the photograph for 
the Law to have efficacy. The Law moves backwards to find this 
legal subject, as it moves forwards to interrogate the photograph’s public reception. This subject is contingent and constructed in different ways in relation to each image – not just due to differences between legal systems.

Each case is like a game of hide-and-seek: the legal subject might be on the photograph, behind the camera or emerging in public space. Even when the Law favours the circulation of the photograph – which it often does – there are many subjects at stake, including society’s interest in viewing the image.

Luc Delahaye, Untitled (Ohne Titel), aus dem Buch L’Autre, 1995/97 (Courtesy: der Künstler & Galerie Nathalie Obadia, Paris/Bruxelles)

Luc Delahaye, Untitled, from the book L’Autre, 1995/97 (Courtesy: the artist & Galerie Nathalie Obadia, Paris/Bruxelles)

The Citizen as Artist

The Law’s response to the photograph of the German Chancellor Otto von Bismarck (1815–98) – lying dishevelled on his 
deathbed – illuminates the fluid relationship between the 
photograph and the legal subject.

The picture was taken shortly after Bismarck’s death on 30 July 1898 by Max Priester and Willy Wilcke, who clandestinely entered his bedroom at Schloß Friedrichsruh after family members paid their last respects. Paparazzi avant la lettre, Priester and Wilcke sought to profit from the photograph, advertising it for sale 
in a newspaper. Bismarck’s family quickly intervened to prevent 
the sale and instigated a civil and criminal case.

Making a case against Priester and Wilcke was difficult because no laws regulating photography existed. By merely taking pictures, they had not disturbed the peace of the dead. The court found them guilty of breaking into Schloß Friedrichsruh and sentenced them 
to several months in jail. The legal subject was not Bismarck but the castle owners, namely, his heirs who did not appear in the picture. Although plates and reproductions were confiscated and destroyed, one print survived and was first published in the Frankfurter Illustrierte in 1953.

In 1907, a law was passed granting individuals the power to control the appearance and the use of their image in public, including after death. A private subject came to exist with rights 
to control any photographic likeness, and heirs would be able 
to exercise these rights posthumously for ten years.

Surprisingly, the German Recht am eigenen Bild (literally, right to one’s image) became part of copyright law, specifically regarding art works and photography – a law designed to protect the authors of cultural works. In France, the corresponding droit à l’image is part of the civil laws regarding privacy, not copyright. In the US, the ‘right of publicity’ exists in some states alongside privacy laws; in the UK, there are no such rights although celebrities and well-known figures can prevent their images being used to suggest ‘false endorsement’.

This startling inversion in German law turns the citizen into an author and owner of his or her appearance while the photographer is merely copying the original and must thus ask for permission to publish any portrait. Perhaps Bismarck’s legacy was to grant every German citizen a piece of property for life (and ten years after): 
his or her image as an original art work. It’s an uncanny presage of Joseph Beuys’s claim: Everyone is an artist.

Taryn Simon’s exhibition at Berlin’s Neue Nationalgalerie ‘A Living Man Declared Dead and Other Chapters I – XVIII’, which runs until 1 January 2012, demonstrates this claim. Simon made individual portraits of the members of various bloodlines, including the descendants and surviving relatives of Hans Frank, Adolf Hitler’s legal advisor and govenor-general of occupied Poland.

Some Frank family portraits are ‘empty’ because the subjects refused to participate. Others sent only their clothes to be photographed; one relative requested that his portrait be pixelated. In Simon’s other bloodlines, family members tend to be missing due to restrictions: imprisonment, military service, illness or religious and social reasons. But in Frank’s bloodline, the empty portraits represent the presence of legal subjects exercising their legitimate rights as owners, if not artists.

Patrick Cariou, aus dem Buch Yes Rasta, 2000 (Courtesy: der Künstler & powerHouse Books)

Patrick Cariou, from the book Yes Rasta, 2000 (Courtesy: the artist & powerHouse Books)

Historical Figure or Private Person?

Although Germany recognizes strong image rights, exemptions are carved out for a public interest in the image – or the viewing civic subjects. It is permissible to take photographs of individuals of ‘historic’ significance, particularly when they are in public space. Here, the Law is required to balance the interests of the individual photographed against society and to decide who should prevail.

Surprisingly, the European Court of Human Rights held in 2004 that even a royal figure like Princess Caroline of Monaco cannot be regarded a public person and that anodyne photographs of her taken without her consent, for example, riding a horse or dropping her children off at school, infringed her ‘reasonable expectation’ of privacy.

In German courts, the Princess had largely failed to foil the paparazzi. In 1995, the Federal Supreme Court judged her a figure of historical significance, which justified the public interest in her life and thus the publication of images of her. In 1999, the Federal Constitutional Court upheld the ruling but exempted photographs of her with her children – thus creating a new set of legal subjects to be considered and protected.

By contrast, the European Court held that Princess Caroline was not a public figure since she exercised no ‘official state function’. 
The photographs could not trump her right to privacy on the grounds of freedom of expression because the images did not ‘contribute to a debate of genuine importance in a democratic society’. Here, Article 8 (the right to respect for private and family life) in the European Convention of Human Rights overrode Article 10 (the right to freedom of expression, including imparting and receiving information and ideas).

In these cases, the legal subject disappears, just as it reappears in a different guise. Princess Caroline is reconstructed as a private individual while the public domain loses its rights as a civic viewing subject. The European Court’s decision – which allowed Princess Caroline later to be awarded compensation – leaves the law of privacy completely at odds with a celebrity-based culture whose icons clearly do not exercise ‘state functions’ and whose surrounding discourse does not fuel so-called ‘democratic’ debate.

The matter is far from settled. The battle between the princess and the paparazzi was back in the Federal Supreme Court in 2007 and Federal Constitutional Court in 2008. The judges must decide – picture by picture – whether the images help the formation of public opinion on questions of general interest.

Philip-Lorca diCorcia, Head #13 (Kopf #13), 2001 (Courtesy: der Künstler & David Zwirner, New York)

Philip-Lorca diCorcia, Head #13, 2001 (Courtesy: the artist & David Zwirner, New York)

The Man in the Street

In her book The Civil Contract of Photography (2008), Ariella Azoulay describes a ‘civil space of photography’ where the permission to stare constitutes an unwritten contract between photographers, subjects and viewers. Yet much street photography is based upon an absence of consent from the individual depicted in the photograph, which can lead to litigation. As in the Caroline cases, the Law considers the right to privacy, but the photographer emerges as a legal subject with rights because s/he is working as an artist.

In 1999, the photographer Luc Delahaye published the book L’Autre (The Other), with a text by Jean Baudrillard and portraits of commuters in the Paris Métro whom Delahaye snapped with a hidden camera. Delahaye admitted to the French media that he had ‘stolen’ the commuters’ images, but it was the only way to show their ‘solitude’ and ‘silence’. One commuter Neji Bensalah – whose portrait appeared in L’Autre and as a still in Michael Haneke’s film Code inconnu (Code Unknown, 2000) – took Delahaye, Magnum (his agency at the time), the publisher Phaidon and Haneke’s production company to court.

Bensalah invoked not only his right to control his image – and to share profits earned from it – but also other viewing subjects, missing from the picture. He claimed that the portrait had ‘negative repercussions’ on his family. In 2004, the Tribunal de grande instance de Paris decided against him with a groundbreaking judgement.

While German image rights can be offset by the subject’s historical significance and the public’s interest, French image rights can be offset by the photographer’s claim to freedom of expression. Suprisingly, the Paris court cited freedom of expression, not in French law, but in Article 10 of the European Convention of Human Rights, in particular the right to impart and to receive information and ideas. Moreover, the court interpreted ‘ideas’ as being ‘expressed especially in the work of an artist.’

Delahaye became the legal subject as artist who trumped Bensalah’s right to his image and privacy. By citing the European Convention, the case recasts the Caroline cases; what if the paparazzi had defined their photographs of the princess as art? 
By linking ‘ideas’ to art works, the Paris court weakened the 
French droit à l’image which must be weighed against the aims of both information and art.

In 2000, the artist Philip-Lorca diCorcia photographed an elderly Hasidic Jew, Erno Nussenzweig, in Times Square, New York, without his permission. Nussenzweig is diCorcia’s Head #13 (2001) in the ‘heads’ series (2001). Upon discovering his image in 2005, Nussenzweig sued the artist and his gallery Pace/McGill. By 2007, the case reached the Supreme Court of New York State, which recognizes rights to publicity and privacy in state civil law.

Was the prevailing legal subject behind the camera or on the photograph? diCorcia argued for freedom of expression as an artist, just as Nussenzweig claimed his right to privacy as well as to the free exercise of his religion as a Hasidic Jew. Freedom of expression and freedom of religion are both guaranteed by the First Amendment to the US Constitution, which has precedence over state laws.

Since each legal subject was protected by the First Amendment, one key question (among many raised in the case) emerged. 
Whose constitutional right should have precedence: diCorcia’s right to expression or Nussenzweig’s right to religion? Once again, other subjects suddenly appeared who were neither on the photograph, nor behind the camera.

diCorcia’s affidavit included references to his long career as an artist and a photographer working in the tradition of street photography, which dates back to Alfred Stieglitz (1864–1946). Nussenzweig argued that taking his photograph for commercial and public purposes violated his religious beliefs, namely the Second Commandment, which forbids making graven images, including the likeness of any thing on earth.

Where diCorcia pointed to the subjects in his other photographs and Stieglitz’s work to support his case, Nussenzweig invoked God, if not the legal system of the Ten Commandments, which diCorcia was forcing him to disobey by taking and circulating his likeness in exhibitions and publications. The court sided with diCorcia on this issue and others. The photographer trumped his subject; in a way, art trumped the Ten Commandments.

The Photographer as Author

What happens when photographers are pitted against photographers? Or against artists who appropriate photographs without permission? Copyright is the primary legal mechanism whereby photographers and artists control the circulation and reproduction of their works in multiple media. This property – which is abstracted from and exists independently of the actual work and which persists for the life of its creator and often several decades after death – can be sold, licensed and gifted by the creator or by heirs. While copyright law often casts the creator as a prevailing legal subject, it protects separately any ‘original’ additions 
made to the work by others.

Copyright law initially grappled with the medium since photographs were considered to be mechanical copies of nature, not original authored works, let alone art works. But by the late 19th century, photographers were recognized as authors in many countries. In the seminal US case Burrow-Giles Lithographic Co. versus Sarony (1884), a portrait of Oscar Wilde gained copyright protection since the photographer posed the subject and chose his clothing and the lighting, among other ‘original’ contributions 
to the creation of the portrait.

Does a photograph appropriated and transformed by an artist still belong to the photographer? This question fueled a case heard earlier this year in the US District Court for the Southern District of New York. Without seeking consent, Richard Prince used at least 
41 black and white photographs from Patrick Cariou’s book 
Yes Rasta (2000). Cariou’s photographs were the result of his six-year stay with the Rastafarian community in Jamaica and were made with the community’s blessing. Prince incorporated the photographs into his series of collages and paintings ‘Canal Zone’ (2007–8), which were exhibited and sold by Gagosian Gallery and distributed in an eponymous catalogue published by Rizzoli. 
In December 2008, Cariou sued Prince, Larry Gagosian, Gagosian Gallery and Rizzoli for copyright infringement. On 18 March 2011, the court decided in Cariou’s favour.

During the trial, Prince’s lawyers argued that his reproductions of Cariou’s photographs were lawful on the grounds of ‘fair use’, which is defined by Section 107 of the US Copyright Act of 1976 and which exempts valuable forms of cultural expression from infringement. Fairness depends on four factors: the character and purpose of the use (for example, commercial versus educational); the nature of the copyrighted work; the amount of work used; and the effect 
of the use upon the work’s potential market. US courts apply these factors flexibly, but arguably the most significant factor is how far the original has been ‘transformed’ by appropriation. Did the 
artist simply copy or create a brand new work?

Prince’s lawyers argued that his use of Cariou’s images was ‘transformative’ and thus fair. Judge Deborah A. Batts decided that there was no fair use on any count. Prince’s works were not transformative since they did not comment on Cariou’s photographs; Prince testified that he had no interest in their original meaning. The less transformative the copies, the more importance attached to their commercial use; sales and trades resulting from Prince’s works were estimated at over $16 million USD. By failing to ask Cariou’s permission, Prince and the related defendant parties had acted in ‘bad faith’ while taking a substantial number of Rasta images. Finally, Judge Batts found that Prince’s copies damaged both the actual and the potential market for Cariou’s work. After learning of Prince’s exhibition, the Manhattan gallerist Christiane Celle cancelled a Cariou exhibition because she did not want to be seen as capitalizing on Prince’s success, nor to exhibit work already 
done at another gallery.

In a remarkable twist, Judge Batts gave the defendants ten days to deliver all infringing copies, all unsold copies of the catalogue and all reproductions, from transparencies to discs, for ‘impounding, destruction or other disposition,’ to be determined by Cariou. The owners of Prince works were to be informed that they cannot 
be lawfully exhibited. Destruction is normally reserved for 
pirated copies or facsimile-type replicas and remains unusual in a 
copyright case where money damages are usually awarded in 
cases involving artistic and cultural expression. In September 2011, 
a federal appeals court ruled that the defendants have the right 
to appeal the judgement.

In this Solomon-like judgement, only one legal subject – one creator – could prevail. Significantly, the Rastafarian community – the subjects of the pictures – disappeared in the trial. The court’s judgement seems to have been positively received by some members of the community, who are said to believe that Prince’s works derogate their religious culture. Ironically, this community may have found ‘justice’ exercised through the subject of Cariou after all.

Photographs are not the ‘natural’ bearers of subject’s rights. 
The legal subject – in, behind or in front of the photograph – is continually being rediscovered. As author, private citizen or civil society, the legal subject is contingent and multiple. The difficulty, 
if not impossibility, for the Law to control photographs in the digital and Internet age has paradoxically intensified the invention and application of legal constraints. Unlike the Internet, the Law is restricted to geographical jurisdictions. The race to keep up with 
the digital circulation of photographs may be a losing one.

Issue 3

First published in Issue 3

Winter 2011

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