I read an article in today’s NY Times about a lawsuit against a New York street photographer who captured the image of an Orthodox Jew and used it in a photographic exhibition without the man’s permission:
In 1999 Philip-Lorca diCorcia set up his camera on a tripod in Times Square…and in the time-honored tradition of street photography, took a random series of pictures of strangers passing under his lights. The project continued for two years, culminating in an exhibition of photographs called “Heads” at Pace/MacGill Gallery in Chelsea…
When Erno Nussenzweig, an Orthodox Jew and retired diamond merchant from Union City, N.J., saw his picture last year in the exhibition catalog, he called his lawyer. And then he sued Mr. diCorcia and Pace for exhibiting and publishing the portrait without permission and profiting from it financially.
…In his lawsuit, Mr. Nussenzweig argued that use of the photograph interfered with his constitutional right to practice his religion, which prohibits the use of graven images.
I find myself deeply torn by this story. Of course, like the Times and many of its readers I come down squarely on the side of artistic expression in this case. I believe the artist had the right legally to take the image and use it artistically as he did.
But what I find shocking and offensive about both the Times’ coverage of the story and the photographer’s legal argument is that it makes absolutely no provision for the legitimate religious convictions of Mr. Nussenzweig. Now, I am not Orthodox and thus not compelled to shield myself from a photographer’s lens when I see it, as the latter is. But I am sensitive to the horror he must’ve felt when he saw his image on public display in the exhibition.
After all, Jewish law forbids the creation of “graven images” and interprets this to mean any image like a photograph that captures an individual’s physical likeness. The reason, as I understand it for this, is that Jewish law wishes to avoid any possibility that such images would themselves compete with the idea of the divine (“Thou shalt have no other gods before thee”). To understand the concept better, I found this interesting Wikipedia article on aniconism, or the avoidance of images (or “icons” in this case):
…Aniconism is [best] known in connection [with] Abrahamic religions…[It] was shaped by specific theological considerations and…emerged as a corollary of seeing God’s position as the ultimate power holder, and the need to defend this unique status against competing external and internal forces, such as pagan idols and critical humans. Idolatry is a threat to uniqueness, and one way that prophets…chose to fight it was through the prohibition [against] material representations. The same solution also worked against the pretension of humans to have the same power of creation as God (hence…the Second Commandment in the biblical texts…)
To summarize, Mr. Nussenzweig believes that his image diminishes the power and glory of his God. This of course must cause great pain to a person with such religious convictions. And my problem with the court’s decision, the photographer’s legal argument and the law in this matter is that it frankly couldn’t give a crap about Mr. Nussenzweig’s religious beliefs. And I think that’s a shame. I’m not arguing that the law should allow Orthodox Jews to prevent anyone from taking or exhibiting their picture. But would it hurt if the judge, Mr. diCorcia or his attorneys took this into account in some way and sincerely acknowledged the man’s pain? Here is all the judge could muster:
As for the religious claims, she said: “Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive. While sensitive to plaintiff’s distress, it is not redressable in the courts of civil law.”
While I’m in no way sympathetic to fundamentalist Christians who talk about a war between secular society and religious believers, I think that incidents like this one contribute to such a perception of persecution and lack of sensitivity to the needs of religious people.
Another interesting aspect of this issue is that diCorcia’s actual photographic image of Nussenzweig is elegant and tremendously powerful. It is a great testament to the living legacy of Hasidic Judaism which the latter lives every day. For that reason, I would love to feature it here. But I will not display it here (though the Times decided to do so) since I do not wish to compound Mr. Nussenzweig’s pain.