It started with a question to Norman Cook about the picture of the overweight kid with the T-shirt that proudly exclaims, “I’m #1, So Why Try Harder” that adorns one of Norm’s CDs, and a painting of which will adorn his upcoming UK greatest hits collection.
I asked, “Was this kid contacted? Did anyone ever speak to him? Has he surfaced?”
Norm says that according to British law, an anonymous person photographed in a crowd (this kid was at a motorcycle convention) tacitly gives their consent if they smile at the camera.
This ruling was tested, I was told, by a photo that was used in a UK bank ad that used an image of a festival audience of wild hippies. The bank said something like “most of these people now bank with us.” However one guy identified himself in the picture and sued, claiming “I don’t bank with you, and I’m STILL a hippie, so you can’t use my image to promote your bloody bank!”
The hippie lost. Maybe he was high when the photo was taken, but he clearly didn’t mind. And the bank wasn’t using him by name. The crowd was a symbolic crowd, representative of an attitude and era. It didn’t matter whether this particular hippie was featured or not.
Likewise, PL DiCorcia, the art and fashion photographer, took a series of photos not so long ago of passers by in Times Square and showed them in an exhibition, sold them in a photo book, and sold the photos for lots of money. This man (below), Erno Nussenzweig, decided to sue. He is an orthodox Jew. I am not sure if he heard there was significant money, if he was incensed at a perceived invasion of “privacy” or saw this as a violation of the injunction against graven images. He has sued not once, but twice. I must say I would not have expected the work of PL to show up on this man’s radar.
So far, this man, like the hippie, has lost. But in other places he may have won. Apparently in France, home of famous street photographers Cartier Bresson and William Klein, there are now laws limiting this kind of anonymous street photography. I was told that this is why the tradition of photography these men and others helped established pretty much no longer exists in France. This makes me think there is an interesting relationship between art, specifically its content, and the law. Not just laws like this one, but estate laws (what can be given and inherited) and tax laws (determining how things are sold, gifted and when…and what sorts of things, too.)
Anyway. What if the kid or Erno were famous? A celebrity or known mobster or a famous CEO? I was told that it was politicians who pushed through the legislation in France — the assumption is they didn’t want to have photos of themselves with their mistresses in the press. This might be a clichéd view of the French, but it might be true.
I would propose that were Erno well known, which, curiously, he is now becoming, the rules would be different. He could then argue that the worth of the photo and its interest is determined by who he is, and that the photographer is benefiting (financially) because people recognize Erno and want a photo of Erno on their walls. He, if well known, is not then an anonymous passer by, a metaphor for the NY streets and the many types who exist there, but a “name”, and he therefore possibly cannot be used to sell a bank or anything else without his permission. Well, maybe.
This doesn’t seem to really apply, as paparazzi make a living out of surreptitiously photographing celebrities and Royalty every day. They make money, the tabloids make money and the advertisers in those tabloids make money. Some say this is the price of fame — as a famous person your image becomes public property. Well, only to some extent — I suspect that if a photo of overweight Britney were slapped on a T-shirt and sold millions of copies it would not be seen as a given right. The tabloids, however, may legally squeak by claiming they are “news”. News. Uh huh.
In the U.S., a notoriously litigious society, Norm’s CD will have a different cover. The smiling consent rule apparently does not apply.
Then we get into the area of art that includes images of known people and things. These are seen as a quotation. As far as I know Campbell’s or Brillo never sued Warhol for capitalizing on their packages. Nor did the graphic designer of those packages step forward and say, “you are selling my design, and I deserve credit or a piece of the action”. (My guess is that those designers’ work was done for hire, and therefore is wholy owned by Proctor and Gamble or whoever the parent company was). Nor did David or Keith sue Liz Peyton, for selling what appear to be “fan” portraits for large sums. They may have even purchased the paintings themselves, who knows? But certainly the value of these paintings is intimately tied up in whose portraits they are.
Some years ago the photographer of a postcard image of cute puppies sued the artist Jeff Koons for turning the photograph into a sculpture. To me this win by the photographer is specious — the translation into a 3-D object is so different than the postcard on which it was based — and furthermore, it could be argued that the photograph was not a “creative” work, in the sense that it would be if the postcard depicted puppies with human heads, for example. If I were to translate the image of Kate Moss snorting up a line into a sculpture, or even a painting, would I owe Ms. Moss some money or permission?… Or would I only owe the photographer who took the tabloid image?
And what if it wasn’t Kate Moss, what if it was some anonymous clubber doing a line, who decided he or she didn’t want their adventure made public? What if the photographer of the Baader-Meinhof gang that Gerhard Richter turned into paintings wanted a share, or even said no?
What if this “news” image above is now owned by Corbis (the Bill Gates owned image bank) and what if they said no? What if I painted a slightly altered version of this image — quoting Richter, the photographer AND the Baader-Meinhof gang all at once?
What if I turned this image into a sculpture? What if I turned a famous photo of anonymous people like the one below into a sculpture? (You could imagine a sculpture like this at an airport, for example.)
Would I owe the photographer? The couple? Neither? What if I made a fictional film and created a scene that recreated this tableau? Which happens all the time — DPs and directors are often “inspired” by stills and paintings.
Some of this falls under “fair use”. You are allowed, within limits, to quote things and images of people that are relevant to your “discussion” — it expands and clarifies your own work. It helps the work resonate in a deeper way. A work of art, especially given that they are unique and not mass produced, is a kind of discussion too, one might argue, so the same rules apply. A CD cover, T-shirt, poster, ad for a bank or fashion photo is not the same kind of discussion.
Robert Rauschenberg, contemporary of Warhol, eventually decided to use only his own photos in his work after he was sued for clipping out some news photos and “transferring” them to canvas as part of his hybrid paintings. These photos were considerably altered, usually degraded in the process, but it seems it was still a problem. Again, the law changes what people create.