New York, USA - A judge has dismissed an Orthodox Jew's lawsuit, finding that a photograph taken of him on a street and sold for hundreds of thousands of dollars is art -- not commerce -- and therefore is protected by the First Amendment, even though his religion forbids it.
Manhattan state Supreme Court Justice Judith J. Gische ruled that the photo of Emo Nussenzweig -- a head shot showing him sporting a scraggly 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.
Philip-Lorca diCorcia's photographic show "Heads" was at the Pace Gallery in Manhattan's Chelsea area in September and October 2001, featuring shots of 17 people photographed without their knowledge in New York, Tokyo, Calcutta and Mexico City. The displayed photo of the 80-year-old Nussenzweig was about 3 feet by 4 feet.
New York's right-to-privacy laws prohibit the use of a person's likeness for commercial purposes without the person's permission. But if the likeness is deemed to be art, the commerce restrictions do not apply.
New York has been fairly liberal in its protection of what constitutes art, the judge wrote. She said New York courts have "recognized that art can be sold, at least in limited editions, and still retain its artistic character."
"First Amendment protection of art is not limited to only starving artists," the judge wrote in a decision made public Monday. "A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes."
Nussenzweig's lawyer, Jay Goldberg, said he was writing his appeal of the judge's decision and expected to win a reversal.
Goldberg said his client's religion forbids, and he has a deep conviction against, reproducing his image by photography or other means because of the belief in the Second Commandment's prohibition against graven images.
"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."
Goldberg said Nussenzweig's son saw the photograph in a catalog of diCorcia's work in a bookstore in early 2005. Nussenzweig sued in February 2005, alleging his privacy was invaded and his image was used for commerce.
Lawrence Barth, diCorcia's lawyer, said that what was at stake in the case was the right to make art in public places. Without such a right, Barth said, there would be no photo of the sailor kissing the nurse in Times Square at the end of World War II.
Another diCorcia lawyer, Kenneth Schacter, said it did not matter that Nussenzweig objected to the photo on religious grounds. "Our First Amendment rights," he said, "trump his religious beliefs."