The genesis of this paper was the author's first visit to the Paris Photo fine art photography fair at the Grand Palais in November 2018. At Booth C38, Copenhagen's VI Gallery was showing a selection of images from a recent series by Danish photographer Peter Funch called 42nd and Vanderbilt. (1) Named after the street intersection outside New York's Grand Central Station from which he worked on summer mornings between 8:30 and 9:30 am over a nine-year period, (2) Funch's presentation paired images of the same members of public--taken week, months and even apart--revealing remarkable similarities (3) and identifying each image with the date and time it was taken. The series is a delightfult our de force of memory, patience and skill and offers a remarkable insight into human nature, routine and ritual: was the first pair of images really taken on Tuesday mornings, two weeks apart, in the same place and at exactly 9:09 am? And is it really possible to smoke a cigarette in exactly the same way? Alongside admiration for the work, the author observed the same enquiry from members of the Parisian public: what about the subjects' privacy? Had Funch obtained consent from each subject to use the images? Did the images belong to Funch or to the individuals photographed? Responding to similar questions during a public interview, Funch expressed his understanding of the law as it relates to artistic street photography in New York (where much of the most highly-prized street photography has historically been shot (4) and France as follows:
Well, we see in this country [France] there's a different understanding of it ... in America it's completely different ... the law in New York is that you can photograph people in a public space if it's not for a 'commercial use' ... in France it would never have been possible ... to do a project like this. (5) Reflecting Funch's broad understanding. Magnum photographer Peter Van Agtmael' (6) has said:
It's always important to know what the laws are in the place you're working. In a place like New York, if you're working on the street, in public, more or less anything goes ... in places like France, there are many more restrictions to how you are photographing people on the street and then taking that photograph into the public eye in some form through publication. (7) These comments suggest that, from a legal perspective, both Funch and Van Agtmael feel more comfortable working on the streets of New York than on the streets of Paris. It is certainly understandable that today's leading artists working with the medium of photography will gravitate towards jurisdictions where their freedom of artistic expression is protected by the law when choosing where to invest their limited time and resources. The author was unfamiliar with the legal regimes governing street photography in New York and Paris but, as a hobbyist street photographer, was curious to explore how the law in each of these major cities might be influencing--and indeed, inhibiting--creative output.
This paper will accordingly explore the law governing the art of street photography in New York and Paris in 2019. Part 2 considers the position in New York, charting the evolution over the past century of a limited statutory right to privacy together with broad exceptions developed by the courts on account of freedom of expression and the press enshrined in the First Amendment of the US Constitution. Part 3 then charts the emergence over a similar timeframe of the entrenched rights to private life and one's image under French law. Both Parts 2 and 3 end with an analysis of recent caselaw filed by members of the public before the courts of New York and Paris against leading photographers (Philip-Lorca DiCorcia and Arne Svenson in New York; and Luc Delahaye and Francois-Marie Banier in Paris). The claimants in each case sought judicial redress after discovering that their images had been taken in public places without their consent and published as art. Promisingly, for the art of street photography, the courts in both New York and Paris dismissed all claims in the interests of freedom of expression.
United States: New York State
The Emerging Right to Privacy
In their seminal 1890 article 'The Right to Privacy' (8)--considered by many to be a foundation of privacy law in the United States(9)--Professor Samuel Warren and Supreme Court Justice Louis Brandeis advocated the development of a new tort for invasion of the right to privacy. Responding in part to technological advancements which had dramatically increased access to photographic technology, (10) and anticipating the risk that the new hand-held technology would be seized-upon by the growing and increasingly sensationalist press, (11) Warren and Brandeis highlighted the threat posed by "recent inventions and business methods" and made the case for legal protection not only of privacy in its traditional sense but what they termed the more general right of the individual "to be let alone". (12)
Responding to Roberson
Relying in part on the Warren and Brandeis article, Abigail Marie Roberson filed civil suit before the New York courts in 1902 against a flour company which had reproduced her image, without consent, to advertise sacks of flour: (13)
The claimant was recognisable in the image, which was printed and circulated around 25,000 times on lithographic prints, photographs and bags of flour. The claimant alleged being:
(greatly humiliated by the scoffs and jeers of persons who have recognized her face and picture on this advertisement and her good name has been attacked, causing her great distress and suffering both in body and mind. (14)) Noting that the plaintiff's request to prevent further circulation of an image which was acknowledged to be a flattering likeness was unprecedented ("she has been caused to suffer mental distress where others would have appreciated the compliment to their beauty implied in the selection of the picture for such purposes" (15)), the Court of Appeals expressed concern that an equitable right to privacy may generate a "vast amount of litigation" (16) and constitute an "undue restriction of liberty of speech and freedom of the press". (17) In rejecting Roberson's claim in a four : three decision, the Court of Appeals denied the existence of a right to privacy under New York common law but sought to insulate itself from criticism by reminding the New York legislature that it:
could very well ... provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent. (18) c) New York's Statutory Right of Privacy
Intense debate following the Warren and Brandeis article of 1890 persuaded most US commentators of the need for a common law right of privacy. (19) Georgia became the first state to recognise this in 1905 when its Supreme Court ruled in Pavesich v. New England Life Insurance Co. that the unauthorised publication of the plaintiffs photograph in an advertisement to promote the publisher's business--"essentially the same question" as Roberson (20)--did indeed violate the plaintiffs right of privacy. (21) By the time William Prosser wrote his renowned 1960 article giving further shape to the law of privacy, (22) most US states had recognised a common law right to privacy in some form. (23) Canvassing the 70 years of caselaw since 1890, (24) Prosser's 1960 article identified four torts:
which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff ... to be let alone. (25) The four categories of interference identified by Prosser--intrusion upon seclusion; public disclosure of private facts; false light; and appropriation of name or likeness--are now listed collectively as 'Invasion of Privacy' at section 652A of the American Law Institute's authoritative Restatement (Second) of Torts (1977), and each is developed individually from sections 652-B through 652-E. Most US states have made one or more of these remedies available to claimants at common law since the 1960s. (26) Notwithstanding this trend, New York continues to deny the existence of any common law right of privacy. New York did, however, enact the first statutory right to privacy in the United States in 1903--a direct response to the storm of public disapproval following Roberson. (27)
New York's statutory privacy right is contained at sections 50 and 51 of the state's Civil Rights Law (NY CVR). Section 50, (28) entitled 'Right of Privacy makes it a misdemeanour (that is, a minor criminal offence subject to criminal penalties including imprisonment and fines) for a person, firm or corporation to use the name, portrait or picture of any living person without their advance written consent "for advertising purposes, or for the purposes of trade". Section 51, (29) entitled 'Action for Injunction and for Damages', makes the equitable remedies of injunction and damages (30) available to an individual whose name, portrait, picture or voice is used without consent in the state of New York "for advertising purposes or for the purposes of trade". Section 51 also sets out a number of notable exceptions.
New York's courts have consistently held that the rights contained in sections 50 and 51 of NY CVR "are the exclusive remedies allowed in New York State for an unauthorised use of one's likeness." (31) Accordingly, a photographer working in New York will have no exposure to a breach of privacy claim unless the subject can establish all four elements, namely:
(1) use of their portrait or picture;
(2) for advertising purposes or for the purposes of trade;
(3) without consent;
(4) within the State of New York. (32)
Since elements 1, 3 and 4 will typically be conceded, element 2--that is, whether the use is for 'advertising' or 'trade' purposes--will be determinative.
Street Photography in New York and Paris: A Comparative Legal Analysis.
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