Fine artists like Philip-Lorca diCorcia are able to take pictures of random people in public space, and sell the images without compensating or getting permission from the subjects in the photos. I’ve always found this to be unfair and unjust. For some reason, “Fine Art” is granted a special privilege, very much like religious institutions with their tax exemption. In my view, they should either grant permission to everyone (so that anyone can do what diCorcia does for any purpose including advertising), or apply the law to anyone who makes money from it with no exceptions.
The general public does not seem to understand that “fine art” is a business like any other business with billions of dollars involved, and many people making fortunes. They should not be granted any special privileges. I do strongly believe in the rights of artists for their “artistic expression”, and that DiCorcia should be able to take photos of random people in public space and use them for his “artistic expression”, but if they sell the images, or use them to promote their own careers (at which point “art” turns into “trade” or “commerce”), they should compensate the people in the photos, just like everyone else does. There is no reason why “artists” should be exempted from this when they turn their art into commerce.
“Art” and “trade” are two separate things. Something regarded as “fine art” does not preclude the possibility of it being used for “trade” or “advertising”. Art does not have to be sold to be considered “art”. Once an artwork is sold, it becomes a “trade”, and it should follow the rules of all other forms of trade. If a gallery uses the artwork to promote its show and its artist, it becomes a piece of “advertising”. If the artwork is not sold or does not generate any money, then it would remain only as art, and artists should be free to use any images obtained in public space.
In the suit, Nussenzweig v. DiCorcia, I think Nussenzweig’s lawyer made a mistake by arguing that this is about “privacy”. If they had questioned what constitutes “advertising” or “trade”, and the unfairly exceptional status of artists and galleries, I think it would have had more resonance. Since I’m not a lawyer, I can’t say which strategy would have had a better chance of winning, but with the latter, at least, they would have made an artistic statement about what “art” is, where it begins and ends.
Unfortunately, many people are afraid of raising this kind of question because they feel insecure about their understanding of art. They are afraid of being seen as uncultured, uneducated, or unsophisticated, and the art world elites knowingly exploit it, and bully the ordinary people. There is so much mystique and reverence surrounding art and its institutions that not many people are willing to fight them. I suspect many judges and juries too are afraid of appearing ignorant and uncultured, and rule predominantly based on that fear. This is how child molestation went on for centuries in Catholic churches too.
One might argue that requiring artists to compensate the subjects would discourage them from making such art. I would argue that there would be no artistic loss there. If having to share the profit of their “trade” would stop them from making those “artistic expressions”, then they might as well stop. There are plenty of conceptual or digital artists who make artworks that cannot be sold for practical reasons because there are no objects associated with them to buy or own, but they continue to express themselves in that manner regardless. Creativity is found in all sorts of unlikely environments, like flowers growing through the cracks of sidewalk. It’s part of what makes creativity beautiful and relevant. Granting “artists” special privileges would not improve it.