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11 - Imagining the Law: Art

Published online by Cambridge University Press:  20 January 2010

By
Christine Haight Farley
Edited by
Austin Sarat ,
Matthew Anderson  and
Cathrine O. Frank
Austin Sarat
Affiliation:
Amherst College, Massachusetts
Matthew Anderson
Affiliation:
University of New England, Maine
Cathrine O. Frank
Affiliation:
University of New England, Maine
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Summary

Street photographer Philip-Lorca diCorcia took candid images of passers on the streets of New York City without their knowledge. From twenty feet away, he operated a system of strobe lights and a camera attached to construction scaffolding aimed toward a fixed point on the sidewalk. Eighty-four-year-old Erno Nussenzweig, a retired diamond merchant from New Jersey, was one such passerby who had his image captured. DiCorcia selected Nussenzweig's image, along with sixteen others of the numerous photographs taken over a two-year period, edited them and blew them up into 48- by 60-inch posters, which he sold for between $20,000 and $30,000 each. Nussenzweig, as an Orthodox Hasidic Jew and member of the Klausenberg Sect – which was nearly eliminated during the Holocaust – possessed a deeply held religious conviction that diCorcia's use of his image violated the second commandment's prohibition against graven images. Nussenzweig sued diCorcia for invasion of privacy.

In dismissing the suit in 2006, a New York court determined the photograph in question to be “art,” and thus immune from such challenges. In so concluding, however, the case prompts further inquiries. How was the court able to make this determination when so many art experts are confounded by the question of what is art? What guidance, if any, does the law offer in making these determinations? Should these determinations be made by law? Has the law adopted an aesthetic theory? How does law appreciate the creative acts of the photographer?

Type
Chapter
Information
Law and the Humanities
An Introduction
 , pp. 292 - 312
Publisher: Cambridge University Press
Print publication year: 2009

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