BY:Neil J. Rosini, Michael I. Rudell
Originally published in the Entertainment Law column in the New York Law Journal, April 28, 2006
Two different people standing on two different streets in New York were photographed without their consent. Each brought suit in New York State Supreme Court alleging violation of his and her right of privacy. Earlier this year, the Court dismissed one case but allowed the other to proceed. This pair of decisions illustrates the interplay of the First Amendment, the text of the New York privacy statute, and a person’s reasonable expectations of privacy in New York. They also raise questions about how the “art” and “news” exceptions to the statute are to be applied.
The cases are Nussenzweig v. Di Corcia1 and Nieves v. Home Box Office Inc.2 Both plaintiffs invoked New York Civil Rights Law Sections 50 and 51, which prohibit the use of a person’s “name, portrait, picture or voice…for advertising purposes or for the purposes of trade” without written consent. As the Court noted in Nussenzweig, the rights contained in these sections are “intended to defend the average person from unwanted public exposure and the potential emotional damage thereby inflicted,” but those rights have limits. For one, the statute provides “the exclusive remedies allowed in New York State for an unauthorized use of one’s likeness” (emphasis added). Accordingly, if an unauthorized use is not for “advertising purposes or for the purposes of trade” then it lies outside the statute’s exclusive protection. As a further limitation, the statute is circumscribed by First Amendment free speech rights and must be narrowly construed to embrace only “non-consensual commercial appropriations.”3
The Nussenzweig Decision
In this case, plaintiff Erno Nussenzweig was photographed by a professional photographer named Philip-Lorca DiCorcia for a series of pictures taken on the streets of New York entitled “Heads.” The photographer set up a camera in Times Square and took “candid, un-staged images” of people as they walked by a location where special lighting was installed. The photographer edited the shots down to a collection of 17, including the plaintiff’s image, and neither sought nor obtained consent from any of the people whose likenesses were included.
The collection was exhibited at the Pace Gallery in 2001 and reproduced and distributed in a catalog. The exhibition was open to the public, and advertised and reviewed in local and national media including The New York Times and The Village Voice as well as art periodicals. Two reviews were illustrated with the plaintiff’s image. Ten “edition” prints of the plaintiff’s photograph (plus three artists’ proofs) were created and sold for prices ranging from $20,000 to $30,000 each.
The plaintiff sued the photographer and the gallery. As an Orthodox Hasidic Jew and a member of the Klausenberg Sect, he was particularly offended because of his “deep religious conviction” that the use of his image for commercial and public purposes violated the prohibition in the Second Commandment against graven images. He argued that the photograph was not art and pointed to sales by the profit-making gallery to show that the use was both commercial and actionable.
The defendants argued that use of the plaintiff’s photograph was not used for “advertising” or “trade” purposes and therefore lay beyond the scope of New York statutory protection. Invoking the First Amendment and the New York State Constitution, they further argued on free speech grounds that art cannot be prohibited by the state’s privacy laws. The Court agreed with both arguments and dismissed the case.
The decision first addressed the question of what qualifies as art, noting that New York “has been fairly liberal in its protection.” In determining that the plaintiff’s photograph was indeed art, the Court said it relied not on a “subjective determination” based upon “the personal preferences of either party or the [C]ourt,” but rather on the reputation of the defendant “as a photographic artist in the international artistic community,” the creative process he used to shoot, edit and finally select the photographs, and the fact that the photographs were not simply offered for sale in a gallery but were “exhibited and reviewed by the relevant artistic community.” Although an “extremely limited number of the photographs were sold for profit” (emphasis original) and the gallery had a “commercial objective of financial profitability,” the Court decided that these facts did not “convert art into something used in trade.”
The Court reached these results notwithstanding the plaintiff’s contention that his constitutional right to privacy and the right to practice his religion should be weighed against the defendants’ competing interests. The Court noted that the free exercise clause only restricts state action and there was no state action complained of in the case. And, although use of the plaintiff’s photograph was “deeply and spiritually offensive” to the plaintiff, the Court declared that constitutional exceptions to privacy must be upheld as “the price every person must be prepared to pay for in a society in which information and opinion flow freely.”
The decision cited several New York cases that “consistently found ‘art’ to be constitutionally protected free speech” and not actionable under the privacy laws of the state. In one, Altbach v. Kulon,4 the defendant’s oil painting that caricatured the plaintiff, a town justice, was used in flyers to promote the opening of his art studio and gallery, and offered for sale on the Internet. Relying on constitutional grounds, the Third Department held that “artistic expressions – specifically a caricature and parody of plaintiff in his public role as a town justice…are entitled to protection under the First Amendment and excepted from New York’s privacy protections…”.
Nussenzweig also cited the Civil Court decision in Simeonov v. Tiegs5 in which the plaintiff created a plaster casting of the head of model Cheryl Tiegs with the intention of reproducing her likeness in ten bronze reproductions to be sold at $20,000 each. After the casting was inadvertently destroyed by workers in Tiegs’s apartment, the plaintiff sued for $200,000. Ms. Tiegs and the other defendants moved to dismiss under Sections 50 and 51 on the basis that she never gave her consent to these uses. Their motion was denied on the basis of statutory construction against a backdrop of constitutional analysis. The court held that Sections 50 and 51 had no application because an “artist may make a work of art that includes a recognizable likeness of a person without her or his written consent and sell at least a limited number of copies thereof” without violating the statute. The court also declared in dicta that works of art, including sculptures, were deserving of First Amendment protection that superseded the right of privacy.
In a third decision cited in Nussenzweig, Hoepker v. Kruger,6 an image of one plaintiff, shot by a well-known German photographer, subsequently was incorporated in an original composite image by the defendant, a well-known artist. Art museums not only exhibited the composite work but also reproduced it in publications and sold copies in the form of post cards, note cubes, and other merchandise. The Southern District held that the composite was “pure First Amendment speech in the form of artistic expression” deserving of “full protection” that trumps the plaintiff’s statutorily-protected privacy interests. Here, even the sale of copies on t-shirts and refrigerator magnets was deemed distribution of art in a “common and ordinary form that can be appreciated in everyday life” thereby retaining its “essential nature of the artistic expression that is entitled to First Amendment protection.” It was therefore not actionable under New York’s right of privacy statute.
In Nussenzweig and the cases on which it relies, it appears that once a work is declared to be “art,” the defendant’s burden is satisfied because the use falls outside the privacy statute and nothing further needs to be proved.
The Nieves Decision
In the Nieves case, the plaintiff was “standing on a New York street corner while the defendants were filming.” Her image then appeared without permission in a television episode shown on Home Box Office in which the defendants “directly commented on [the plaintiff’s] image in a derogatory and degrading manner utilizing what can best be described as scatological terminology.” The Court accepted arguendo that the program was a “documentary” on the subject of a “‘bounty-hunting’ family.”
When considering the defendants’ motion to dismiss, the Court focused on the terms of the statute rather than engaging in constitutional analysis. It denied the motion because it could not determine as a matter of law whether the use of the plaintiff’s likeness was for advertising or trade purposes, because “the purpose as for which plaintiff’s likeness was employed” was still in dispute. The decision acknowledged that a picture illustrating an article on a matter of public interest would not be deemed a use for purposes of trade or advertising if it had a “real relationship” to the article. But the Court could not say whether or not the use of the plaintiff’s image fell within this exception because first there had to be a “factual determination based upon the use of the plaintiff’s image and the content of the program in order to determine whether the defendants meet the ‘real relationship’ standard.”
That test was employed in a Court of Appeals case on which the Nieves decision relies. Arrington v. New York Times7 held that the use without consent of a photo of the plaintiff to illustrate a newspaper article entitled “The Black Middle Class: Making It” (also taken while the plaintiff was walking on a street in New York City) was not for purposes of trade or advertising because the illustration bore a “real relationship” to the informational content of the article. Most recently, the Court of Appeals reached a similar result in Messenger v. Gruner & Jahr,8 a case brought by a 14-year old model for unauthorized use of her image to illustrate an article about premarital sex, in which she was falsely portrayed to have gotten “trashed” and to have “had sex with three guys.” The court dismissed her privacy claim because the photographs illustrated a newsworthy column, which under New York law was not “deemed produced for the purposes of advertising or trade.” Although not basing its decision on constitutional grounds, the Messenger court observed that this principle, as well as narrow construction of the statute, reflect constitutional values in the area of free speech.
In Nieves, Arrington and Messenger, it is noteworthy that the scope of the statutory language, rather than the First Amendment, is the focus of analysis, and the defendants do not prevail by merely demonstrating a news use. They also must show a “real relationship” to informational content.
Despite their starkly different results, these two decisions, filed a month apart, have much in common: they treat Sections 50 and 51 in the context of unauthorized photography; the subjects were ordinary individuals standing on New York streets; their images were given substantial public exposure; and both were deeply offended by their inclusion in the defendants’ works. While focusing on the narrow language of the statute and interpreting it in light of First Amendment principles, the decisions raise questions about the distinction between “trade” and “art” and what a “real relationship” to a newsworthy matter actually means.
A comparison of the decisions also shows that exceptions to privacy rights for news uses, which command considerable First Amendment weight, are tested more stringently than exceptions for art reproductions. The second hurdle, a test for a “real relationship,” applies only to news.
Further, both decisions have something to say about rights of privacy, or lack of them, of individuals enjoying seemingly private moments in public places. The Nieves case suggests that an objectively offensive use may not easily be linked to newsworthy subject matter through a “real relationship,” but its precedents remind us that the extent of offensiveness to a photographic subject otherwise matters little in a news context. Nussenzweig shows that for purposes of art, the extent of subjective offensiveness to the plaintiff, even if grounded in a firmly-held religious belief, is of no consequence.
1 Index No. 108446/05 (Sup. Ct. N.Y. Co. filed February 15, 2006), Hon. Judith J. Gische
2 Index No. 100966/05, (Sup. Ct. New York Co. filed January 20, 2006), Hon. Debra A. James
3 Arrington v. New York Times, 55 N.Y. 2d 433, 439 (1982); Messenger v. Gruner & Jahr, 94 N.Y. 2d., 436, 441, cert. denied, 531 U.S. 818 (2000)
4 302 A.D. 2d 655, 657 (3d Dep’t 2003)
5 159 Misc. 2d 54 (Civil Court, N.Y. Co. 1993)
6 200 F. Supp. 2d 340, 353-354 (S.D.N.Y. 2002)
7 Cited above.
8 Cited above. 94 N.Y. 2d at 440 (not cited in Nieves).