Street level: Intersections of Art and the Law Philip-Lorca diCorcia's "Heads" Project and Nussenzweig v. diCorcia

By wortman.22 April 25, 2010

Posted in 2010 Journal

Abstract:

This article analyzes Philip-Lorca diCorcia’s “Heads” photographs, specifically “Head”—a photograph of Mr. Erno Nussenzweig. Three and a half years after diCorcia exhibited his “Heads” collection at the Pace/MacGill Gallery in New York City, Nussenzweig learned that he had been photographed on some December 1999 day as he walked through Times Square. Horrified that he had been captured, commodified, exhibited, reviewed, and sold as a result of doing nothing more than walking down the street, Nussenzweig filed suit against diCorcia and the Pace/MacGill Gallery for violating his right to privacy and his religious beliefs (Nussenzweig is an Orthodox Hasidic Jew). This article takes a critical-cultural-legal approach to the case—merging legal theory with urban studies and visual culture—to argue that what was initially made visible by the photograph was not Nussenzweig himself but the city and the conditions of modern life in the city. An analysis of both the legal case (which sides with the city) and a reading of the photographs support such an argument. Though Nussenzweig filed suit against diCorcia and Pace/MacGill for violating his right to privacy, this article suggests that he is the one who violates himself as a result of his lawsuit. Furthermore, through the legal proceedings Nussenzweig initiated, he is the one who attaches his name to the photograph and draws increased attention to ‘Head’, thus making the viewers see him and not the city.

PART I: ART OF THE CITY

In 1999 photographer Philip-Lorca diCorcia set out to create a series of photographs that would capture images of individuals as they wandered through Times Square in New York City. Of the images diCorcia captured between 1999 and 2001, he selected seventeen for exhibition and entitled the collection “Heads” (Kimmelman, 2001). Thirteen of the seventeen “Heads” were on display at the Pace/MacGill Gallery in Chelsea from 6th September to 13th October 2001 (Kimmelman, 2001).

Philip-Lorca diCorcia’s “Heads” project, as well as his earlier collection “Streetwork” (1993-1997), places him alongside Alfred Stieglitz, Henri Cartier-Bresson, Garry Winogrand, and Walker Evans, within a larger tradition of street photography. His images reflect “Street photography’s ostensible promise … to serve up truth, unvarnished, unprocessed, and unpremeditated” (Sante, 2001, ¶ 2). In creating his “Streetwork” collection, diCorcia traveled to several major cities throughout the world, placed hidden lights on the pavement to illuminate various spaces and passers-by, and photographed them (Noorderlight Photofestival, 1999). His lights created an effect such that those who passed through them, and those whose images were captured, appear as though they have been selected from within the hustle and bustle of their Paris, Calcutta, Tokyo, Rome, or New York City streets and elevated in such a way that their facial expressions, body positions, and gestures play off the space to connote a sense of isolation or alienation. diCorcia attempts to press ‘pause’ on fractions of instances of lives of individuals in the city and reflect them through his photographs—the resulting images are not so much of individual subjects as images of what it is to be subject to the city.

In his “Heads” collection, unlike “Streetwork,” diCorcia seemingly eliminated the city from his compositions. To create the photographs that constituted this series, diCorcia affixed a strobe light to a scaffolding structure in Times Square, set up his tripod across the street, selected a long lens for his camera, and captured images of those who passed beneath his light (Gefter 2006). While this process sounds similar to the one he employed in “Streetwork,” the specifics of subject selection and the resulting images were quite different. In his essay “The Planets,” which appears as type of forward to the exhibition catalogue for diCorcia’s “Heads” project, Luc Sante (2001) explains:

In rigging lights, unseen by causal pedestrians, that were intended to play on anyone stepping on a specific x-marked spot, and then positioning himself at an unobtrusive fixed distance, he constructed an elegantly rigorous formula not unlike a mathematical equation. He, his apparatus, and the setting were the givens, his human subjects the variable. The results married chance and determinacy in a way that appeared anything but mathematical, however. The unrepeatable spontaneity of the classic street shot was preserved, but the lighting utterly transformed the scenario. (¶ 2)

To say that the lighting transformed the scenario of the ‘street shot’ is a bit misleading or an understatement, to say the least. Rather, if one were to view the photographs of the “Heads” collection out of context or know nothing about the technical side of their production, one might not readily realize they were street shots: the lighting setup diCorcia employed eliminated the ‘street’ from the ‘street shot.’ What resulted, as Kimmelman described in his review for The New York Times, were “crisp stark portraits picked out of murky blackness — just heads, no longer cityscapes, […]” (2001, p. E26). While it seems that diCorcia eliminated the city from the visual field captured in his photographs, I argue that the images visually represent or reflect the city, although, upon first glance, all one might see are isolated subjects surrounded by a blurry, blackened background.

In his explanation of the composition of diCorcia’s photographs, as cited above, Luc Sante claims that the subjects were the variable in the mathematical equation of the “Heads” project (2001, ¶ 2). But I am not certain there was a variable or even that there were multiple subjects captured in the images. Instead, I believe that what we see in the faces of those who were photographed are the material effects of the city on the individual. Thus, these are, street shots—shots that reveal how the conditions of city transform the individual into a subject of the city. The subject of the city seems to have abdicated their shell orbeen forced further inward, leaving the visage as particular canvas upon which the city spreads itself.

Conditions of the City Reflected

In surveying the photographs contained in the exhibition catalogue of the “Heads” project, there is a consistent look on the faces of those who stepped on diCorcia’s specific x-marked spot: a far off gaze, a slight part to the lips, and an overall blank expression. In each of the photographs, save one, the faces register no emotion, engagement, or response to the goings on around them (“Head” smiles a slight smile, but to no one but herself). This disposition were first named and described by Georg Simmel, in 1903, in his essay “The Metropolis and Mental Life.” Simmel (1971) wrote, “There is no psychic phenomenon which is so unconditionally reserved to the city as the blasé outlook” (p. 329). The blasé expression which each of diCorcia’s “Heads” shares, is a result, as Simmel (1971) argues, of “the essentially intellectualistic character of the mental life of the metropolis…”(p. 325).

The intellectual nature of living in the city, Simmel explains, stands in contrast to that of the small town, which is rooted in emotions, relationships, connections, and feelings (1971, p. 325). The man of the city,

Reacts primarily in a rational manner, thus creating a mental predominance through the intensification of consciousness, which in turn is caused by it. Thus, the reaction of the metropolitan person to those events is moved to a sphere of mental activity which is least sensitive and which is furthest removed from the depths of the personality. (Simmel, 1971, p. 362)

This intellectualistic character and the lack of sensitivity is developed in response to the hyper-stimulation of the city; it is a type of defense mechanism or “protective organ” (Simmel, 1971, p. 362) that is caused by and further protects the man of the city from the “rapidly shifting stimulations of the nerves” (Simmel, 1971, p. 369). This intellectualistic character of the city inhabitant—that which is a reflection of the nature of the city—or his or her “protective organ,” produces or is read as a blasé affect.

Sante, however, seems to read the city and the type of outlook it produces differently than Simmel. In writing about New York City in particular, Sante (2001) explains,

You do not have to compose yourself to meet the crowd…. You can take your deepest conflicts and darkest designs out of the cell of your bedroom and air them on the avenue. (…) —you do not have to feel vulnerable about looking troubled, since that is the uniform nearly all city faces wear when they walk alone. (¶ 6)

Presenting oneself to the world armed with a troubled outlook or expression seems to be slightly different than wandering thought the streets, appearing blasé. While Sante and Simmel do differ about what is written on the faces of city inhabitants, they are in general agreement that the city is responsible for producing effects on the body that manifest themselves visibly as the city transforms the individual into the subject of the city. This can be understood as metaphorically akin to each individual donning a translucent mask—the individual’s face is still present and visible, but the mask both alters one’s appearance and also creates a barrier. Simmel and Sante hold different aspects of the city accountable for the change: Simmel cites over stimulation of the nerves (1971, p. 329), while Sante cites the city itself; he writes, “Naturally, if you live in the city, many of your readiest thoughts will just naturally be conflicted and dark” (2001, ¶ 6). While Sante’s glib comment is given humorously, it is only funny because there is a kernel of truth to what he is saying: the statistics related to city-living (crime, poverty, pollution, etc.) mean that the city is troubling place.

While I think it is important that we place these two theories of the city in conversation with one another, I do not do so to come to some sort of assessment or conclusion about the outlook on the faces of those whose images make up the “Heads” collection. Debating whether or not they look troubled or blasé would not be productive. I do, however, believe that it is both useful for the case I am making here and for a more general discussion about the effects of the city on its inhabitants to note that we have two individuals who are authorities in their respective fields, writing nearly a century apart, arguing that the city does produce uniformly visible, material effects on the body of its inhabitants. Given what both Simmel and Sante say, there is a way in which the city and its effects can be traced in the lines, wrinkles, and gazes of all of its inhabitants. For each subject, living in the city makes one subject to the city. diCorcia’s images both capture and reproduce this look, not just in the reproductions of his photographs, but also as the countenances captured in the images are reproduced on and by the faces of others. diCorcia’s images capture and constitute a visual field, and as one’s selfhood or “subjective center of gravity” is outside of the self, located in the field of images through which one gains a sense of separation (Mansfield, 2000, p. 43), one learns how to look in the city through the images and faces of those in the city thereby becoming further subject of and to the city.

Thus, at its core, the subject of the “Heads” collection which can be seen in each of the photographs, is the city. The city, which Michel de Certeau (1984) called the universal and anonymous subject (p. 94), is a constant in the equation that Sante (2001) proposes as a way to understand diCorcia’s photographs. Just as “He, his apparatus, and the setting were the givens” (¶ 2), so while there may be no streets, sidewalks, skyscrapers, or crowds in his street shots, Philip-Lorca diCorcia remains a street photographer in the most literal sense, and the “Heads” collection remains a collection of street photographs, photographs which portray the psychosocial conditions of city.

PART II: LAW OF THE CITY

While I may be arguing on a theoretical level and even to an extent a material level that what we are seeing in the photographs of the “Heads” collection is the city (or at least the effects of the city upon its inhabitants – those who have been made subject to the city), the city—an abstract, non-agentive subject—could not have filed suit against Philip-Lorca diCorcia and the Pace/MacGill Gallery. Yet they were sued—not by the city, but by the individual represented in the image “Head ” Mr. Erno Nussenzweig. In March of 2005, three and a half years after the “Heads” collection was exhibited at the Pace/MacGill Gallery, and after 10 edition prints of “Head” had been sold (Nussenzweig v. diCorcia, 2007b) for between $20,000 and $30,000 a piece (Nussenzweig v. diCorcia, 2007a), Mr. Erno Nussenzweig, a retired diamond merchant from Union City, NJ, saw the picture of himself in a copy of the exhibition catalogue (Gefter, 2006). Unaware that he had been photographed as he walked though Times Square on some December 1999 day, Nussenzweig was horrified to discover, more than five years after the fact, that he had been captured, commodified, exhibited, and sold as a result of doing nothing more than walking down the street. In 2005 Nussenzweig filed a complaint with the Supreme Court of New York naming both diCorcia and Pace/MacGill Inc. as defendants (Nussenzweig v. diCorcia, 2007a).

In filing his complaint, Nussenzweig argued that not only was diCorcia’s process of making art, and the subsequent exhibition and sale of it, a violation of his personal right to privacy, but these actions also violated his religious beliefs (Nussenzweig v. diCorcia, 2006). When Nussenzweig encountered the photograph, he certainly did not see a representation of the city or the traces of it in the image; rather, he saw himself. He also saw a representation of a specific facet of himself: “an Orthodox Hasidic Jew and a member of the Klausenberg Sect, a sect that was almost completely destroyed during the holocaust” (Nussenzweig v. diCorcia, 2006, *4). For Nussenzweig, “Head,” as a representation and in its dissemination, completely violated Orthodox religious tenets, namely a portion of the second commandment: “‘Thou shall not make unto thee any graven image, or a likeness of any things that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; Thou shall not bow down thyself to them, or serve them’” (rpt. in Nussenzweig v. diCorcia, 2007a, p. 515). Nussenzweig considered diCorcia’s photograph to be a type of graven image, and such a thing could have profound spiritual consequences—all the more so because it was reproduced countless times.

In the discussion portion of the State of New York Supreme Court ruling, Civil Rights Laws sections 50 and 51 are invoked to address Nussenzweig’s claim that diCorcia violated his right to privacy. As “Right of privacy laws are intended to defend the average person from unwanted public exposure and the potential emotional damage thereby inflicted” (Nussenzweig v. diCorcia, 2006, *5), it would seem to make sense that the court would find for Nussenzweig, for he certainly suffered unwanted public exposure that resulted in emotional harm and psychological distress. But the court did not find for Nussenzweig. Instead, On Feb. 8, 2006 New York State Supreme Court Justice, Judith J. Gische, entered a summary judgment dismissing Nussenzweig’s complaint (Nussenzweig v. diCorcia, 2006, *8). In finding for diCorcia and Pace/MacGill Inc., Justice Gische was not saying that Nusenzweig did not have a right to personal privacy (in fact, the case is dismissed based upon procedural grounds rather than constitutional ones) (Nussenzweig v. diCorcia, 2006, *4); rather, her ruling makes clear that what the law defines as a violation of personal privacy and what one might feel is a violation of their own personal privacy, given the social codes of the city, are two very different things. Justice Gische ultimately sides with the city and that which the city produces.

Social Codes/Legal Codes

In a city of eight million people, spread across a mere eight miles, there really is no privacy. Yet, through strict adherence to various social codes within an otherwise overly-densely populated space, a sense of privacy is manufactured through the types of subjects the city produces and reproduces. As one steps out the door of one’s New York City apartment, they are immediately engulfed by the crowd. While one is suddenly physically present and visible to all the individuals who constitute the crowd, the individual falls away: all that exists is the crowd; the individual become invisible and it is the social code of the city that makes it possible. As Luc Sante (2001) explains, “In New York City discretion and contempt collaborate on a code of manners in which consciously looking at others is a breach. The unspoken rule is that you are to see just enough to keep from getting knifed” (¶ 6). Although Sante is again engaging in a bit of hyperbole for dramatic effect, his point should be well taken, for the acts of looking, studying, and gazing at individuals are not permitted in the city. Yet, one can “people watch,” for that is not studying individuals so much as studying the subjects of the city. The challenge, here, lies in understanding what the causes and effects of the social code are that get produced and reproduced by the city.

If one were to consciously observe or visually engage with each individual one passes by on the street each day, the pace of the city would be inexorably altered. In a commute of one mile in New York City one could potentially encounter 66,940 people. ^¹ The number and speed of contacts in the city is such that to look at or say “hello” to each individual would mean that no one would ever get anywhere, and that each time someone left their homes the degree of exposure one might feel could be paralyzing. Thus, in tacitly agreeing to not visually engage with each other within the hyper-visibility that the city produces – to become subject to the city, a social code gets produced and the efficient functioning of the city is maintained. The by-product of this social code is the sense of individual invisibility or isolation within the maw of the city.

However, social codes are not laws, and what “right of privacy laws” would seem intended to do and how they are actually written are two very different things. In reality, Civil Rights Laws sections 50 and 51 are extremely limited in the scope of the protection they provide for one’s actual privacy in the city. As cited in Nussenzweig v. diCorcia, “The elements of a privacy claim under Civil Rights Laws § 50 and 51 are: (1) use of plaintiff’s name, portraits, picture, or voice, (2) for advertising purposes or for trade, ^² (3) without consent, and (4) within the State of New York” (Hoepker v. Kruger, 2002 cited in Nussenzweig v. diCorcia, 2006). If we are to take seriously the way in which the law is written rather than basing our actions and responses on the pervading social code of the city, then our own conception of individual privacy would necessarily change. In his review of the “Heads” exhibit, Kimmelman (2001) concluded,

Mr. diCorcia’s pictures remind us, among other things, that we are each our own little universe of secrets, and vulnerable. Good art makes you see the world differently, at least for a while, and after seeing Mr. diCorcia’s new “Heads,” for the next few hours you won’t pass another person of the street in the same absent way. (p. E26)

Even more than the exhibit, the resulting court case should make us see the world differently. The images highlight the city and what it is to be subject to and of the city, what it is to be stripped of one’s individuality on the streets of the city. The court case, however, should remind us of just how vulnerable we actually are—to the city and to others who don’t abide to its social codes.

Violating the Law – Violating the Self

Under the code of law, diCorcia was in the right—diCorcia neither used Nussenzweig’s portrait for advertising purposes nor trade. Although diCorcia made money from the sale of his art, those transactions do not constitute trade in the eyes of the law for the transactions are for the art object itself and not some product or business being advertised or publicized by the art. While diCorcia may have been found to be on the right side of the law, I don’t know if anyone would actually make the argument that Nussenzweig had not been violated in someway. In articulating her decision, Justice Gische addressed the tension that exists between experiencing a violation of one’s right to privacy in the legal sense and experiencing such a violation in the personal sense. She wrote,

Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive. The sincerity of his beliefs is not questioned by defendants or this court. While sensitive to plaintiff’s distress, it is not redressable in the court of civil law. In this regard, the courts have uniformly upheld Constitutional 1st Amendment protections, even in the face of a deeply offensive use of someone’s likeness. (Nussenzweig v. diCorcia, 2006, *8)

The violation that takes place is perhaps not perpetrated by diCorcia so much as by the city itself, for it is the city that de-individualises and subjectifies. diCorcia’s “Heads,” captures this notion and brings it into relief, for the images work to convey Kristeva’s notion that there is no absolute distinction between subject and object. While this notion might produce some comfort for some, it certainly can produce some degree of distress for the individual who takes pride in or clings to their own individuality.

In suing Philip-Lorca diCorcia and the Pace/MacGill Gallery for what he believed was a violation of his personal right to privacy and his right to his religious beliefs, Erno Nussenzweig was the one who violated himself. In filing his initial complaint with the courts, and two subsequent appeals, Nussenzweig drew a great deal of attention to “Head #13,” the image at the center of the case. Due to the potentially significant implications of the case for the art world, major newspapers and art publications closely followed the court proceedings. Each time a story about the case was published, the image of Nussenzweig was reproduced alongside the story. With every reproduction and with the further dissemination of the image of himself, Erno Nussenzweig’s spiritual-self was more greatly imperiled as more and more of what he considered to be graven images of him circulated. Thus, it was Nussenzweig’s defense of his individuality and desire to protect the privacy of his individual-self that produces the violation of himself that he felt had already been perpetrated by diCorcia.

By filing his complaint Nussenzweig attached his name to the photograph. In doing so, he linked a name (and hence, an individual identity) to the image, viewers were no longer able to see “Head” as some sort of universal anonymous man of the city. Moreover, the way in which the city can be seen as represented in the image has been complicated and subsumed by Nussenzweig and the cultural context of the legal case. No longer like the unidentifiable man on the street – asubject of the city that one passes by each day, Nussenzweig selected himself out, not diCorcia’s photograph of him as “Head.”