The Court's Definition of Art

This is somewhat old news at this point, but Philip-Lorca diCorcia has successfully defended his right to make street photography without the approval of his unwitting subjects. This has universally been heralded as a terrific victory for art, particularly in the photoblogger community since the bulk of their work is so heavily weighted towards street photography.

However, I found the judge's decision to be a bit more disturbing, as did she. The critical issue at the center of argument was whether diCorcia's work qualified as advertising or purposes of trade. If it did, then diCorcia was liable. DiCorcia's lawyers argued it did not qualify as commerce simply because it was art. This was determined by the photo's "exhibition in a gallery; sale of limited edition prints; and publication in an artist's monograph". Personally I find it strange that one would argue something's value as art by providing examples of its sale. Judge Gische ultimately found that diCorcia had “demonstrated his general reputation as a photographic artist in the international artistic community” and was thus engaged in art, not commerce. This leaves me to question how artists without an international reputation would fare. I find it strange and troubling that the court's definition of art would be so bound up in the gallery system and specifically connected a specific artist's success.