AALS Art Law Panel, part three

2006 AALS Meeting, Jan. 6, Section on Art Law
Art Law and Intellectual Property Law: Convergence and Conflict

Christine Haight Farley addressed the question of commercial artistic speech, and whether there should be an exception in right of publicity/privacy law for such speech.

She spoke about the work of Philip-Lorca diCorcia, a critically acclaimed American photographer. Her summary: DiCorcia does street photography; many of his pictures look spontaneous but are actually highly staged. He uses hidden lights to give the photos an “eerie and cinematic glow,” capturing subjects, even in public, in deeply contemplative poses. The photos are voyeuristic, inviting us to construct a story about and analyze the psychology of his subjects.

DiCorcia took pictures of people walking through Times Square, without their knowledge or consent. He took thousands of pictures and selected a few for a show. Understandably, the subjects’ expressions are very natural. Blown up to monumental size, and captured by the special lighting that makes them look like they’re in a spotlight even in a photo taken during the day, they look like celebrities – giving a “cinematic gloss to a commonplace event,” Farley said.

The photographs sell for $20,000 each, and a catalog of the show sells for $30.

One of DiCorcia’s subjects was an 84-year-old Orthodox Jew. He sued the artist, the gallery, and the publishers of the catalog under New York’s statutory right of privacy/publicity, which requires written consent for advertising or trade use of a likeness. He is reportedly upset that the artist benefits financially from a photo of him, though he also objects to the creation of a graven image.

New York law makes an exception for “artistic expression.” But artistic expression is often done for profit, just like many other human activities. When art and commerce are both present, which shall prevail? Kozinski in the Barbie Girl case says art trumps commerce, while the Second Circuit has tended to balance the interests. Other cases just look at whether the artist is making money (here I presume Farley was referring to the Tony Twist case).

A dichotomy between art and profit is false: Artists do make money and they want to make money. Farley believes that courts do have to decide whether a contested work is art, but out of discomfort with judging art they usually seek to avoid it, leading to some sort of balancing. One way to avoid the problem is to beef up the requirements for what constitutes commercial speech, so that most things don’t qualify (and then only apply publicity law to commercial speech); she likes this approach. There’s a mess now in terms of the definition of commercial speech, which Congress is trying to address in reworking dilution law. It’s hard to state a consistent principle in statutory language.

In Farley’s opinion, focusing on what is art would make for easier cases. Barbara Kruger’s composite art, for example, clearly qualifies: It’s shown in the Whitney, people react to it as art, etc. But what about the harder cases? We need a clearer rule about what’s a potentially infringing commercial use. Trademark law has historically been clearer than copyright about this.

In the comments period, Glynn Lunney asked about the difference between diCorcia’s work and Girls Gone Wild, a video series that has generated right of privacy claims from young women who didn’t expect their Bourbon Street antics to end up in neighbors’ living rooms. Farley doesn’t want to protect Girls Gone Wild, even though it’s film. She’d prefer to use some distinction like the (presumably thin) resume of the filmmakers or their desire to sell an infinite number of copies instead of being satisfied with a limited edition.

I don’t find these distinctions persuasive (though I note that Farley did not have a chance to develop her points, since everyone was working very hard to stay within the allotted time). A lack of current recognition/pedigree shouldn’t matter, since it’s both over- and under-inclusive in terms of artistic merit -- the over-inclusiveness is usually overlooked in these debates, but I think it’s important too. Likewise, the number of copies doesn’t seem that important to me: Is art only available to an elite? Is Tropic of Cancer not art? Contrariwise, wouldn’t the publisher of diCorcia’s catalog have been happy to sell a million copies? Couldn’t Girls Gone Wild produce a limited edition “Best Of”?