The New York Law Journal reports ($) on a Manhattan Supreme Court decision that, in the absence of a contract to the contrary, photographer Elizabeth Heyert does not have to pay the owner of a Harlem funeral home in connection with a series of photographs she took of elaborately dressed corpses at the home. A lawyer for the funeral home owner had written to Heyert in 2004 "demanding that if she were going to exploit the photographs for commercial gain, she should enter into a fair and equitable agreement with [the funeral home owner] and the families [of the photograph subjects]." But no such contract was ever signed, so the decision seems clearly correct as a matter of straightforward contract law ("In the absence of a contract between the parties containing specific terms of payment or entitlement, this Court will not create the contract the parties might have made. . . . Absent some agreement, a photographer owns all rights to her own photographs").
The decision also points out that the families of the deceased "all signed releases" which "by their terms, gave Heyert the right to copyright, use, reuse and publish the photographs 'for any purpose whatsoever," which the Court appeared to consider independent grounds for dismissing the claims by the families (as distinct from the owner of the funeral home). The news article quotes the lawyer for the funeral home as saying three of the families had not signed releases and he's "been contacted by those families, so the matter is not over." I'm not sure the releases really make a difference. As we saw most recently in a case involving Philip Lorca diCorcia (discussed here), in general a fine art photographer like Heyert doesn't need permission from the subjects of her photographs -- even when they are alive. The case is even stronger when the subjects are dead: the New York privacy statute applies only to "any living person." (None of which is to say releases aren't still a good idea, just to be on the safe side.)
You can see images from the series, called The Travelers, here. Grace Glueck's New York Times review from last year is here. A book is available here.
UPDATE: The New York Daily News has a short piece on the dispute here.
