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A legal and ethical history of photography
Daniel Girardin + Christian Pirker, November 1, 2010
Daniel Girardin + Christian Pirker, November 1, 2010
Garry Gross, Untitled, 1975_© Garry Gross
Three case studies: Garry Gross, Untitled, 1975
In July 1978, at the age of thirteen, Brooke Shields made front page news in Photo Magazine. The young American film prodigy was promoting the film Pretty Baby directed by Louis Malle. In the magazine, a ten-year old Brooke is shown wearing makeup, her glistening body posed naked in a bathtub. The picture comes from a series taken by Garry Gross, an advertising photographer from New York who was regularly employed by Brooke’s mother to photograph her daughter, then a model with the Ford agency. At the time, Gross was working on a project for publication entitled The Woman in the Child, in which he wanted to reveal the femininity of prepubescent girls by comparing them to adult women. Brooke Shields therefore posed for him both as a normal young girl and in the nude, her body heavily made up and oiled. She received a fee of $450 from Playboy Press, Gross’s partner in the project. Her mother signed a contract giving Gross full rights to exploit the images of her daughter. The series was first published in Little Women, and then in Sugar and Spice, a Playboy Press publication. Large prints were also exhibited by Charles Jourdan on 5th Avenue in New York.
In 1981, however, Brooke Shields wanted to prevent further use of these pictures and tried unsuccessfully to buy back the negatives. A legal battle then began between Shields and Gross with Gross being sued for a million dollars. Brooke Shields claimed that her mother had agreed to give up her rights for one publication only and that the photographs caused her embarrassment. In addition, they had been published, and would probably be published again, in revues of dubious morality. Her lawyers immediately obtained a provisional measure forbidding the use of the pictures until the end of the trial. The case was won by Gross with the court considering the contract signed by Brooke Shields’ mother to be valid and binding on her daughter. Brooke Shields appealed and once again obtained a provisional ban on the use of the photographs.
Finally, after a procedure lasting for two years, the appeal court confirmed that Brooke could not invoke her right to annul the contract and that she was legally bound by her mother’s signature. The court once again reaffirmed Gross’s right to freely exploit the use of the pictures other than in a pornographic context. After the failure of their arguments concerning the validity of the contract, Brooke’s lawyers decided on a new strategy, attacking Gross for violation of Brooke Shields’ privacy. The actress claimed that the publication of the images caused her distress and embarrassment. Brooke Shields’ acting career, however, weakened the credibility of this argument since it had clearly been built by projecting an explicitly sexual image of herself. Whatever the case, the court considered that “these photographs are not sexually suggestive, provocative or pornographic, nor do they imply sexual promiscuity. They are pictures of a prepubescent girl posing innocently in her bath”. The court rejected all Brooke Shields’ claims and decided in Gross’s favour. The trial however, had ruined him financially and had tarnished his reputation. In addition, a change in attitudes towards the “politically correct” had sullied the photographs.
The story, nevertheless, had an unexpected development. In 1992, a contemporary artist called Richard Prince approached Gross about buying the rights to use and reproduce the image of Brooke Shields. In his artistic work, Prince appropriates pictures by rephotographing them, recontextualizing them and giving them a title. The picture of Brooke Shields, for example, is entitled Spiritual America. Gross was willing to retrocede his rights to Prince for a series of ten prints. Prince became a star of the contemporary art scene and his picture was sold at Christies in 1999 for $151,000.
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