In the mid-’90s, Philip-Lorca diCorcia toured the largest cities of the world, concealing his lights on the pavement and surreptitiously photographing crowds of people on the streets and sidewalks.
From 1999 to 2001, he took a bolder step for his series, Heads. Over a sidewalk on Times Square, he set up an arc of scaffolding affixed with remote-controlled strobe lights. As pedestrians passed under the rig, diCorcia, who was positioned across the street with a long lens, would focus on individuals and snap photos.
A retired diamond merchant from Union City, New Jersey was surprised to find his photo in an exhibition catalog last year and wasn’t happy, suing diCorcia and his gallery for taking his photo, exhibiting it and profiting from its sale, all without his permission. The suit was dismissed last month by a New York State Supreme Court judge who ruled in favor of artistic expression over individual privacy rights.
What’s significant about the case, according to New York Times photo editor Philip Gefter in his March 17 article “Street photography: A right or invasion?,” is that it’s the first to directly challenge the freedom to photograph in public. (Right-to-privacy laws vary by state; in New York, they prohibit the unauthorized use of a person’s likeness for advertising or other trades, but privacy rights are waived if the image is considered art.) Disturbingly, had this case succeeded, it could have frozen the sale and publishing of everything from Walker Evans’ late-1930s Many are Called series to Travis Ruse’s ongoing photoblog, both of which feature candid photos of New York City subway commuters.
It’s interesting that as one art form has (for the time being) received the legal nod to continue without permissions, another is being further ground out by the requirement of permissions: sampling.
Earlier this week, a federal judge ordered a sales freeze of the Notorious B.I.G. album Ready to Die. Although it’s from 1994 and the rapper was shot dead in 1997, the judge ruled that B.I.G. had used an “unauthorized sample” of the Ohio Players’ song “Singing in the Morning.” The suit was brought by the companies that control the Ohio Players’ recordings (as well as those of the often-sampled Funkadelic), companies that have been busy over the past five years filing hundreds of lawsuits to collect royalties over samples.
Of course sampling resides in a commercial domain and not the public domain of street photography. But as Lawrence Lessig has written, you’re allowed to quote from a published work and you’re allowed to take a few musical notes from a commercial composition for your own without permission—you just can’t take those same notes from a recording. In other words, Lessig notes, “life in the analog world is freer than life in the digital world.”
It wasn’t always this way. Sampling had its heyday in the late ’80s and early ’90s with the albums of pioneers like Public Enemy and the Beastie Boys. The latter’s 1989 album, Paul’s Boutique, boasted more than 125 uncredited samples from other commercial recordings, including those of two infamously protective groups, The Beatles and Led Zeppelin.
But lawsuits and out-of-court settlements quickly cut down the popularity and extensiveness of sampling. In one high-profile case of 1991, Gilbert O’Sullivan sued rapper Biz Markie over an unauthorized sample of “Alone Again (Naturally)” that a judge ruled amounted not to copyright infringement but criminal theft. The album was withdrawn and the Biz bitterly titled his follow-up All Samples Cleared. The prohibitive costs of “clearing” samples have created an environment where an album with as many high-profile samples as Paul’s Boutique would likely be impossible to release today, not that people haven’t tried.
How would I feel if I learned someone had photographed me in public, was exhibiting the photo and profiting from its sale? How would I feel if I was a musician and part of my song turned up in someone else’s? I don’t know. But surely potential limitations on street photography and further legal pressures on sampling have in themselves a chilling effect on art and our potential witness of beautiful images and sounds.