Now that fashion week (or more accurately, fashion month) is here, we at TFL have a critical public service announcement: As exciting as it is that every September and February we are greeted with new collections, hinting at trends for seasons to come, these two months also mean that the most ridiculous street style looks are bound to come out of the woodwork. Photographers hover in wait for these shots, and in response, the street style stars that make you really wonder about a person’s sanity refuse to disappoint. It’s not all bad. There will be some really amazing looks passing you by. But New Yorkers beware; insane street style is coming to a sidewalk near you. Now that we’ve done or civic duty and warned you about what’s ahead, we have another matter to discuss regarding street style. This one, though, deals with the person behind the lens, the street style photographers, and what kind of laws, if any, apply to them.
First thing’s first: Street style photographers, from Tommy Ton down to the most inexperienced, have copyright protection in the photos they take. As soon as they snap a shot, i.e. the work is fixed in a tangible medium of expression, if there is some level of originality, there is copyright protection. Because the originality bar for copyright is so low, we are fairly certain that most photos would make the cut. What this means is that if a photographer runs home to load his or her photos to a website or blog for the world to see, magazines and other commercial entities should not feel entitled to use those photos without consent.
Much like the way the Internet can be argued as a thorn in the side of fashion, the same can be said of the Web’s relationship with photographers. In order to become known and to create a following, you almost have to post your photos somewhere on the Internet. For those who aren’t capable of protecting their copyright – or who may not even know they have the right – it’s pretty easy to imagine how share after share and repost after repost makes it so that after a week or two, many don’t even know the source of the photo.
We certainly aren’t here to offer a solution. It would be naive to assume we could offer a remedy when something as chaotic as the Internet is involved. That doesn’t mean, though, that we don’t have a thought or two. Firstly, recognize that most photos you see in the next month merit copyright protection, at least by U.S. standards. And secondly, give credit where it’s due. Many photographers take photos for a fee and would rightly consider legal action if someone were to steal their means of livelihood. And there is absolutely no reason to not give a photographer credit for their work.
Now that we’ve established that photographers have legal rights, what about those of us milling around on the sidewalk? If we just so happen to get snapped in a photo, or, more likely, if a celebrity does, are there any laws that should prevent the photos from making it to a website?
Since we’re talking about NYFW, we’ll stick with NY law. As a general rule, a photographer – or any regular person with a camera – can take a picture of anyone who is in a public place. So, snapping pictures of people on the sidewalk is perfectly fine. And it’s also okay to post them on a blog or website.
A problem could arise, though, if money changes hands. In NY, the right of publicity, which is codified in NY’s Right of Privacy statute, provides protection for a person’s name, portrait, picture, and voice when used for advertising or trade purposes without consent. So the argument could certainly be made that selling a photograph showing a person’s street style, particularly if the subject of the photo is a celebrity or model, violates their right of publicity if there’s no consent.
But, there are a couple of exceptions to the rule. The first is the First Amendment newsworthiness exception, which means that a person cannot be held liable for using another’s name, likeness, or other personal attributes when reporting or commenting on matters of public interest. Courts typically interpret “newsworthy” very broadly. In Messenger v. Gruner + Jahr Printing, the United States Court of Appeals for the Second Circuit noted, “a wide variety of articles on matters of public interest—including those not readily recognized as ‘hard news’—are newsworthy.” So, commenting on someone’s style or on street style in general while using street style photos could qualify for this exception.
Another First Amendment-related defense relies on fact that some photos are artistic expressions. Between 1999 and 2001, Philip-Lorca diCorcia, an artist and photographer, took photographs of individuals walking through Times Square without their knowledge. In 2001, he exhibited some of the photos at an art gallery and sold a limited number of them. Erno Nussenzweig, a retired diamond merchant, ended up being the subject of one of diCorcia’s photos. Nussenzweig sued diCorcia and the art gallery exhibiting the photos for exhibiting and publishing the portrait without permission and profiting from it financially. The suit aimed to halt sales and publication of the photos featuring Nussenzweig and also sought damages.
New York’s Supreme Court dismissed the suit, holding that a photographer’s right to artistic expression was more important that a subject’s right to privacy. The court pointed out that New York courts “have consistently found ‘art’ to be constitutionally protected free speech, that is so exempt.” The decision also noted that not every photograph is considered art but that “New York has been fairly liberal in its protection of what constitutes art.”
In essence, not every street style photograph will qualify for the artistic expression defense, but there are surely some that would.
Street style photographers give us a glimpse of something we might not otherwise see. Not because they are necessarily given access to things we aren’t, but because everyone has a different perspective. Photography allows one person to capture his or her perspective with a camera and share it with the masses. It’s a means of expression for the person behind the lens, and as such, these photos are offered a fair amount of protection, as they should be. That does not, however, mean we always have to appreciate the fact that the more ridiculous an outfit, the more likely a subject is to be captured in photo.
JENNIFER WILLIAMS is a recent law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. She is currently awaiting admission to the NY State Bar. For more from Jennifer, follow her on Twitter.