Street photography has a long and storied history and indeed some of the iconic photographs of the last 100 years were candid images of strangers taken by photographers roaming the streets of a city looking for a story, or the essence of the human condition or even art. Images such as Subway Passenger, New York City (1941) by Walker Evans, Alfred Eisenstaedt's famous V-J Day in Times Square depicting a sailor kissing a swooning nurse, and nearly the entirety of Henri Cartier-Bresson's magnum opus, The Decisive Moment, were all shot anonymously in public spaces. They are all unquestionably iconic and instantly recognizable by millions, but are they art? Or more specifically, when is a photograph of a person "art"? And what are the legal implications if that photograph is in fact "art"? These were central questions (although ultimately not the legally dispositive question) in a case involving one of today's most highly-regarded photographers and a collection of images he created on the streets of New York. But the answers to those questions, and more importantly the reasoning undertaken to get to those answers, given by a New York Supreme Court justice in a summary judgment decision1 and by a Presiding Justice of a panel of New York's Appellate Division in a concurring opinion on appeal illustrated the difficulty of having courts attempt to define "art" as a matter of New York law,2 especially when it involves taking into account technological advances that are greatly altering how art is created and disseminated or forms of expression that potentially allow courts to distinguish between fine arts and something a court may regard as less worthy of protection.
The Street Photography of Philip-Lorca diCorcia
Philip-Lorca diCorcia is a world-renowned fine art photographer whose work has been exhibited in major museums around the world, including New York's Museum of Modern Art and Whitney Museum of Modern Art, The Tate Modern in London, Paris' Centre National de la Photographie and Bibliothèque Nationale de France, and the Los Angeles County Museum of Art, to name just a few. DiCorcia attended the School of the Museum of Fine Arts in Boston and received his Masters of Fine Arts in Photography from Yale University, where he continues to teach today. While he has a varied portfolio, and has worked in both advertising and fashion photography, diCorcia first rose to prominence as an artist with a series of photographs taken in the late 1980s and early 1990s of male street prostitutes on the West Coast, entitled Hustlers. The series that followed, including Streetworks, A Storybook Life, Heads and Lucky 13, among others, solidified his reputation as "one of the most important and accomplished artists of his generation."3 DiCorcia's body of work has, according to one reviewer, "helped to redefine the tradition of street photography."4
It was while shooting the series Heads that diCorcia created the photograph that led to the litigation just mentioned. Shot in Times Square in New York from 1999 to 2001, Heads is a series of un-staged, candid photographs focusing close-up on the heads and upper bodies of random passersby. A contemporaneous review of the finished series described diCorcia's technique in taking the photos: "a strobe was affixed to scaffolding in Times Square; Mr. diCorcia stood farther away than before, using a longer lens. The result: crisp and stark portraits picked out of murky blackness—just heads, no longer cityscapes, the surroundings now blocked by the scaffolding."5 The scaffolding was purpose-built by Mr. diCorcia for this project; another contemporary review provides additional detail:
For more than a year and starting at the end of 1999, diCorcia turned an intersection of Times Square into a studio of sorts, complete with camera and tripod, strobe lights and industrial scaffolding, and an X on the pavement. Every time a pedestrian stepped on it, the stage was set for the strobe lights to initiate the photographer's intervention from a distance. His great ally in this enterprise was, of course, the light which in these photographs looks like natural light but is in fact entirely artificial. DiCorcia's ruse extends to the time of day as well; these photographs look as though they were shot at night because of their dark background, but diCorcia took all of them at rush hour, at that moment when people are most vulnerable to the push and pull of time.6
Out of "thousands" of photographs taken in this manner, diCorcia selected only seventeen for inclusion in the Heads series. The images are undoubtedly striking: "Picked out against the dark void, cropped to head and shoulders, strangely static although all are in motion, diCorcia's figures are reduced to types or—thanks to the pristine four-by-five-foot prints—elevated to archetypes: the Mailman, the Young Blonde, the Rabbi, the Black Executive, the White Teenager, and so on."7 Another reviewer commented,
The strobe functions like the light of revelation, a high-beam from heaven, and as usual, by stopping time, the photographs incline us to look at what we see every day but fail to notice, although the longer we stare at these people the more extraordinarily impenetrable they seem.
Unaware of the camera, they are absorbed in thought or gaze absently; they are how we act most of the time, walking down the street, in a crowd, focused on something or nothing. But enlarged and isolated, their expressions become riddles, intensely melodramatic and strangely touching.8
The seventeen photographs that comprised Heads were each made into large, poster-sized digital color prints measuring forty-eight by sixty inches; diCorcia created approximately ten editioned prints of each image, along with two or three artist's proofs. The Heads series was first exhibited to the public at the renowned PaceWildenstein Gallery at its Twenty-Fifth Street location in Manhattan from September 6, 2001 through October 13, 2001. To accompany the exhibition, the Gallery and diCorcia collaborated to create a catalog of the exhibition, which included reproductions of all the images in the Heads series. A "substantial" number of these catalogs were printed and distributed to the public.9 The print editions were all for sale and individual prints were priced between $20,000 and $30,000 each. Despite the exhibit running during a chaotic time in New York City, the show was by all measures a success, both critically and financially. The photographs in the Heads series continued to be displayed and offered for sale in the PaceWildenstein Gallery for several years after the formal close of the exhibition, and indeed continue to be offered for sale by other galleries and dealers today.
One of those "melodramatic and strangely touching" photographs exhibited as part of Heads was of a Mr. Erno Nussenzweig, of Union City, New Jersey. Nussenzweig is a retired diamond merchant and devout Orthodox Hasidic Jew; in fact he is a surviving member of the Klausenburg Sect, which was nearly wiped out by the Nazis during the Holocaust. Nussenzweig was apparently unaware that his photograph had been taken by diCorcia sometime between 1999 and 2001 and was also unaware that his was one of the seventeen images selected for inclusion in the Heads series and exhibited at the PaceWildenstein Gallery later in 2001. However, sometime in 2005 Nussenzweig became aware that his image was featured in the catalog published to accompany the Heads exhibition and that his likeness was sold as a fine art photographic print for thousands of dollars without his permission. He then retained a lawyer and wrote to PaceWildenstein and to diCorcia demanding that they cease the display and sale of his image. They declined to do so.
The Individual Right of Publicity and Right of Privacy
In recent years, the concepts of a "right of publicity" and a "right of privacy" as regards the use of a person's image or name have begun to enter the public consciousness, principally through high-profile cases involving celebrities such as Johnny Carson,10 Bette Midler,11 Dustin Hoffman,12 the cast of the television series The Sopranos,13 the estate of John Dillinger,14 television presenter Vanna White,15 and even the Times Square personality "The Naked Cowboy."16 While those cases involving celebrities or other notables naturally receive the most attention, the right to control the commercial use of one's image is not limited to the famous or nearly famous. However, the concepts of the "right to privacy" and the "right of publicity" are actually related, but distinct, concepts—the latter growing out of the former over time.
A "right of privacy" action (also called the tort of misappropriation in some jurisdictions) is concerned with the protection of the "dignitary interest" (as opposed to an economic interest) one has in not having one's image or likeness used without one's permission. The "right of publicity" is not really a "privacy" tort because it is concerned with the loss in commercial value resulting from an unauthorized use of someone's likeness, and since it is really only celebrities or other notables who have any significant commercial value in their names or likenesses, one most commonly hears of their claims in this context. Indeed, as will be seen below, because they are in the public eye, celebrities or "public figures" have a lessened "right of privacy," at least when it comes to news reportage. In any event, the genesis of both of these rights is the idea that individuals should have some say in the way their name or likeness is used by others, a concept that prior to the beginning decades of the last century was unknown in American jurisprudence.17
That genesis began with of one of the most cited18 law review articles in American Jurisprudence: The Right to Privacy,19 by future United States Supreme Court Justice Louis Brandeis and his then-law partner Samuel Warren (later a Maine lumber baron). In The Right to Privacy, Warren and Brandeis posited that individuals should enjoy a right to privacy not only in the sense that the physical spaces they inhabit should remain inviolate without good cause, but also that they should enjoy a right to privacy in their emotional and intellectual lives, and in particular from the increasing invasions of personal lives occasioned by advancing technology:
Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life, and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years, there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons. . . .20
Warren and Brandeis concluded "[T]he right to life has come to mean the right to enjoy life,—the right to be let alone . . . ."21 And it is this "right to be left alone" that lies at the heart of the idea of a right of privacy extending to having some control over the use of one's image or likeness. Yet it was not for nearly two decades that the idea was codified in a statute: Sections 50 and 51 of the New York Civil Rights Law.
Sections 50 and 51 of the New York Civil Rights law were enacted in 1909 in response to the New York Court of Appeals' decision in Roberson v. Rochester Folding Box Co.22 In that case, a Miss Roberson, a minor, sued Franklin Mills Flour and the Rochester Folding Box Company for using a photograph of her on some 25,000 advertisements for their bagged "Flour of the Family" product without her consent or knowledge. While Miss Roberson prevailed in the trial court and at the intermediate appellate level, the New York Court of Appeals reversed those decisions, saying:
The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published. . . .
An examination of the authorities leads us to the conclusion that the so-called "right of privacy" has not as yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided.23
The Court of Appeals expressly mentioned the Warren and Brandeis article in its decision, but said, in essence, that the concept of a right of privacy was too new to form the basis of a lawsuit over the unauthorized use of one's image. However, the court left open the possibility that the unauthorized use of a person's likeness could be a criminal libel violation and also took pains to point out that the legislature was free to create such a right if it wished. In 1909, the New York Legislature responded to the Court's invitation (and to courts in other states that were highly critical of the Roberson decision) by amending the Civil Rights Law to add what are now sections 50 and 51. Section 50 of the New York Civil Rights Law is actually a penal statute:
A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.
N.Y. Civ. Rights L. § 50. But reported criminal prosecutions under this section are very rare,24 and civil lawsuits brought under the companion section 51, which creates a private cause of action for injunctive relief and damages,25 are much more common. It was pursuant to this civil remedy that Mr. Nussenzweig brought suit against diCorcia and his gallery.
Section 51 also contains several exceptions to the general rule of liability for the unauthorized use of a person's name or likeness, such as permitting the sale of products that might contain a person's photograph so long as the original use was lawful, and of particular interest here, an exception for photographers aimed at protecting photographers and their representatives from liability if they displayed past examples of their work in order to generate new business, or licensed a photograph for a lawful use.26 However, this exception is only a conditional exception because if a person depicted in such a photo objects, the photographer will liable if she fails to cease displaying the photograph.
It is possible that diCorcia could have availed himself of this limited exception, by arguing that the gallery, as his agent, was his "establishment" and removing the image of Nussenzweig from display. Instead, diCorcia and PaceWildenstein chose to invoke a different, judicially created exception to liability under the statute, one that is founded upon the First Amendment to the United States Constitution and its guarantees of free expression.
Unresolved Questions About the Scope of the "Art" Exception to New York Civil Rights Law
It should be apparent that the statute that imposes limitations on speech or other expression, as do sections 50 and 51 of the New York Civil Rights Law, must themselves be limited by the more basic guarantees of free expression found in the First Amendment to the U.S. Constitution. And in fact courts have long recognized this limitation, carving out exceptions for uses of a person's name or likeness that serve a purpose or invoke a right deemed superior to that person's "right to be left alone."
The "Newsworthiness" Exception
The most well-known of these exceptions, which exists in one form or another in every jurisdiction having a similar statutory or common law right of privacy or publicity, is the so-called "newsworthiness" exception. This exception holds that if a person's name or likeness is used only in conjunction with a news story regarding a matter of public interest, in other words a "newsworthy use," then there can be no liability because the First Amendment protects such usage. This is also the reason that the New York privacy statute provides a cause of action only for commercial uses, what it calls "advertising or trade."27 New York law takes a very expansive view of what constitutes "newsworthiness," extending it to cover the use of images of persons who are involuntarily public figures,28 the use of a person's photograph to illustrate a news story if the image is merely topically related to the story—even if the particular individual depicted has no actual connection to it,29 and even to the use of a person's image in advertising for a newsworthy documentary where the actual image of the But despite this expansive view of "newsworthiness," this exception was not available to diCorcia or his gallery because his photographs did not "illustrate" anything—his photographs themselves were the story, or perhaps it is better to say, they "told the story" that diCorcia was trying to convey. And while it may be true that a picture is worth a thousand words, in New York at least, the ability of a photograph alone to "tell a story" does not bring it within the newsworthiness exception. And yet it is that same ability to "tell a story," whether literally, metaphorically or metaphysically, that may bring a photograph within the ambit of another judicially created exception to the right of privacy: the exception for "art."
The reader may wonder, with good cause, why we enclose the word art in quotation marks, but as will be discussed below, the meaning of this commonplace word, or rather, what kinds of works are legally encompassed by the word, is central to the question of whether the creator of a photograph that depicts another person should enjoy the protection of the First Amendment and avoid liability for depicting that person in the work without first obtaining his or her consent.
The "Art" Exception
Several courts in New York have recognized an exception from liability under the New York Civil Rights Law for depictions of persons that are contained in a work of "art." Of course, this begs the question, what constitutes "art" as a matter of law. In the case of diCorcia's photograph of Mr. Nussenzweig, the ultimate dispositive issue in the lawsuit was the running of the statute of limitations, which the Court of Appeals held precluded any recovery.31 That court declined to address the question of whether there is an exception to liability under the Civil Rights Law for art and thus did not discuss whether the diCorcia photographs would qualify as "art." Nevertheless, the trial court and a concurring opinion in the Appellate Division directly addressed these questions, providing some insight into how courts may decide these issues in the future.
In the trial court, Justice Judith J. Gische recognized that "[i]n recent years, some New York courts have addressed the issue whether an artistic use of an image is a use exempted from action under New York States Privacy Laws. ... They have consistently found "art" to be constitutionally protected free speech, that is so exempt. This court agrees."32 However, recognizing that this leaves courts with the task of determining what kinds of depictions are entitled to exemption, Justice Gische acknowledged that "the problem of sorting out what may or may not legally be 'art' remains a difficult one."33
Notwithstanding the supposed difficulty of the analysis, the trial court appears to have concluded rather easily that the diCorcia photograph of Mr. Nussenzweig was art. The court stated that "[t]his is not a subjective determination, and cannot be based on the personal preferences of either party of the court."34 Employing language reminiscent of that used in determining whether an proposed expert is qualified to testify, the trial court based its "objective" finding on the fact that diCorcia "demonstrated his general reputation as a photographic artist in the international artistic community," that he "described the creative process he used to shoot, edit and finally select the photographs" and that the works "were exhibited and reviewed by the relevant artistic community."35
Justice Gische rejected the argument that the photograph was used in "advertising or trade" simply because copies of the photograph were sold (in diCorcia's case the entire edition of prints of his photo of Mr. Nussenzweig sold for a total of $240,000) and that the photograph was featured in advertisements for the Heads exhibition, as well as in the exhibition catalog. As to this first contention, the court observed that "first amendment protection of art is not limited to only starving artists," but it also appears that the court gave a great deal of weight to the fact that only "an extremely limited number" of prints of the photograph were sold.36 There was no discussion of at what number of copies the sale of prints might have crossed from "art" to simply commerce. Regarding the advertisements featuring Mr. Nussenzweig's likeness, the court noted that since the advertisements were for the exhibition of protected artwork, like advertisements for newsworthy uses of a persons' image, they did not violate the statute.
Justice Gische's ruling in the case is consistent with the holding in Simeonov v. Tiegs a New York case decided in 1993.37 In that case, the defendant created a plaster cast for a sculpture depicting the model Cheryl Tiegs, using an alginate impression she agreed to pose for as part of a wildlife preservation campaign. The court concluded that the sculpture was art, and thus exempt from liability under the Civil Rights Law. The Simeonov court, like Justice Gische, appears to have given great weight to the fact that the defendant sculptor was "internationally known" and that he only intended to create a "limited edition of 10 bronze copies."38 The court also noted that the potential sale of copies of the sculpture did not render the work ineligible for the art exception, noting that "[t]he dissemination for profit is not the sole determinant of what constitutes trade" under the Civil Rights Law.39 The court contrasted the limited edition of bronze sculptures with the large-scale production and sale of display mannequins, observing that the latter would likely violate the statute.
But in Hopeker v. Kruger,40 decided a decade after Simeonov, Judge Hellerstein of the federal district court for the Southern District of New York took a much more cautious approach to the question of what constitutes art under New York's Civil Rights Law. Hopeker involved the use of the plaintiff's photograph by the graphic artist Barbara Kruger, known for her collage art works combining photographs and bold text. In addition to the original work, reproductions of the collage were featured in an exhibition catalog and on a wide variety of merchandise sold through museum gift shops. After reviewing the analysis used in Simeonov (and later employed in the trial court in Nussenzweig), Judge Hellerstein criticized that decision and cautioned that "[c]ourts should not be asked to draw arbitrary lines between what may be art and what may be prosaic" to determine what is entitled to First Amendment protection. After rejecting the Simeonov approach, Judge Hellerstein examined the test used in California, announced in the case Comedy III Productions, Inc. v. Gary Saderup, Inc., which looks at whether the use of a person's likeness is sufficiently "transformative," which the court explained asks whether it is the art or the person being depicted that is being sold.41 That is, does the alleged artistic work in which the image used have some inherent value or worth independent of the value or worth of the personality depicted. In cases like Comedy III, which involved a celebrity whose personality actually has a commercial value that could be exploited through endorsements and the like, this test seems useful—is the alleged artist merely trying to cash-in on the notoriety of the celebrity or is she doing something more? But what about depictions of ordinary people like that at issue in Nussenzweig? It would be hard to argue that Mr. Nussenzweig enjoyed notoriety sufficient to monetize his personality via endorsements or other means, which of course is true for the vast majority of people alive today. But if there is no famous personality to sell, all that is left then is the artistic expression of the depiction. In which case, would not the Comedy III test necessarily come out in favor of the artist whenever an ordinary, non-famous person is depicted? In Hopeker, the court ultimately sidestepped the question of which test should prevail, concluding rather cursorily that the Kruger collage at issue would be considered art under either.42
The Courts Attempt to Decide If It's Art
The Appellate Division affirmed the dismissal of Mr. Nussenzweig's claims on statute of limitations grounds, but Presiding Justice Tom, in a concurring opinion joined by another justice, took pains to analyze whether diCorcia's photographs were constitutionally protected art. Like the trial court, Judge Tom also focused heavily on diCorcia's credentials, such as his Masters in Fine Arts from Yale University and his extensive exhibition history at "prominent museums around the world."43 The fact that there were only a limited number of prints produced and sold, and that they sold for very high prices, also seemed to weigh heavily in the analysis. But despite the recitation of these supposedly objective indicia of "art", Judge Tom's concurrence also delved into the subjective, albeit haltingly, by discussing with approval the artistic merit and significance of "street photography," and why it is not feasible in that genre to obtain releases from subjects of photographs.44 In any event, after professing a desire to provide guidance to lower courts examining the question, even Justice Tom ultimately avoided setting forth a red-line test for "art," writing instead:
While it may be problematic to determine whether a particular item should be considered a work of art, no such difficulty presents itself in this case. Quite apart from diCorcia's well-documented reputation as a renowned fine arts photographer and the uncontroverted evidence of the high price commanded by the subject prints, plaintiff concedes on appeal that his photograph is a work of art.45
The Court of Appeals, the highest court in New York, affirmed the diCorcia decision on statute of limitations grounds and did not analyze the art issue at all.46
The Courts Have Difficulty Arriving at a Test
Where do these decisions leave us? The two lower court decisions in Nussenzweig appear to place great, if not dispositive, weight on the artist's ability to establish her bona fides such as an established reputation, exhibitions and a critically reviewed body of work. It is clear that this test, if it be that, is one that the starving artists of Justice Gische's opinion will have trouble meeting. Neither court expressly engaged in a subjective analysis of the artistic merit of the image at issue and it is not at all clear how new and emerging artists, who are not well-established, who may use widely available digital technology to create their art, and may exhibit their work on line, can meet this test.
In the absence of a workable objective test or criteria for determining when a depiction of a person is art are we left then with suggesting that such decisions can only ever be subjective? Curiously, it is a recent case involving adult dancing which may provide some insight into how a court might make a subjective distinction between what it regards as being sufficiently artistic. In 677 New Loudon Corp. v. State of New York Tax Appeals Tribunal, a so-called "adult juice bar" sought to avoid paying sales tax on lap dances under the exception for "dramatic or musical arts performances."47 The Court of Appeals decision noted several other categories of comparatively lowbrow or nontraditional dance (such as ice shows) and held that that "women gyrating on a pole to music, however artistic or athletic their practiced moves are" should be subject to the sales tax. Judge Smith's dissent criticized the tax authority and the majority of the court for limiting the tax exemption for "choreographic ... performance" to only " 'highbrow dance' or 'dance worthy of a five-syllable adjective.'" Judge Smith explained that while he was "stuffy" enough to find lap dancing "distasteful" and personally preferred the New Yorker to Hustler magazine, he would find it unconstitutional to make a legal distinction based on whether a dance performance was sufficiently cultural or artistic.48 677 New Loudon Corp highlights just how messy a subjective analysis of what constitutes "art" would be: likely the very antithesis of disinterested justice since every case would naturally be subject to the artistic tastes of the judge or jury. And yet the alternative suggested by Nussenzweig and its predecessors is not attractive either.
It thus appears that, at least for now, for those photographers who do not have easily at hand an impressive list of credentials and/or a stack of exhibition catalogs featuring their work as art, the New York Civil Rights Law's privacy provisions remain an opaque hazard.
* The author thanks Alexandra Kleiman, Judith Wallace and Madelyn White for their invaluable assistance in the preparation of this article.
1 Nussenzweig v. DiCorcia, 11 Misc. 3d 1051(A) (Sup. Ct., N.Y. County 2006) (unreported disposition) (Nussenzweig I).
2 Nussenzweig v. DiCorcia, 38 A.D.3d 339 (1st Dep't 2007) (Nussenzweig II). Much of the factual narrative that follows is drawn from the opinions in Nussenzweig I and II. For the sake of readability this essay will only provide citations when quoting directly from those decisions.
3 Nussenzweig II, 38 A.D.3d at 344 (quoting from an affidavit of Peter Galassi, Chief Curator of Photography at the Museum of Modern Art). Examples from diCorcia's various series can be viewed at http://www.thecollectiveshift.com/show/portfolio/diCorcia (last visited October 8, 2012) and http://www.artnet.com/artists/philip-lorca-dicorcia/ (last visited October 8, 2012).
4 Michael Kimmelman, Art In Review; Philip-Lorca diCorcia—'Heads', N.Y. Times, September 14, 2001, available at http://www.nytimes.com/2001/09/14/arts/art-in-review-philip-lorca-dicorcia-heads.html (last visited October 8, 2012).
6 Taline Voskeritchian, Philip-Lorca diCorcia's "Intimate Portraits, Anonymous Crowds," originally published in artsMedia magazine (now defunct), available at the author's personal blog at http://talinedv.wordpress.com/2010/07/31/from-my-files-philip-lorca-dicorcias-intimate-portraits-anonymous-crowds-2/ (last visited October 8, 2012).
7 Peter Galassi, Philip Lorca diCorcia, Artforum International, Vol. 39, No. 10 (Summer 2001), at 169.
8 Kimmelman, supra n.4.
9 Nussenzweig I, 11 Misc. 3d 1051(A) at *3.
10 Carson v. Here's Johnny Portable Toilets, 698 F.2d 831 (6th Cir. 1983).
11 Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).
12 Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867 (C.D. Cal. 1999) rev'd by 255 F.3d 1180 (9th Cir. 2001).
13 James Bates, 'Sopranos' Take Shot at Ad in Court, L.A. Times, February 4, 2003, available at http://articles.latimes.com/2003/feb/04/business/fi-sopranos4 (last visited October 9, 2012).
14 Dillinger, LLC v. Electronic Arts Inc., 795 F. Supp. 2d 829 (S.D. Ind. 2011).
15 White v. Samsung Electronics Am., Inc., 971 F.2d 1395, (9th Cir. 1992).
16 Buck v. Mars, Inc., 571 F. Supp. 2d 446 (S.D.N.Y. 2008).
17 It should be noted that the rights of publicity and privacy are wholly distinct from copyright. While copyright protects a copyright holder's property rights in their work (such as a photographer's rights in a photograph she creates) privacy and publicity rights protect personal interests of the people who are represented in, or by, the work. That is, one can have the right to use a particular image without infringing a copyright, but still be liable for use of the image if the person or persons depicted in the image have not consented to the use. Most courts also agree that right of privacy or publicity claims are not preempted by the federal Copyright Act. See, e.g., Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir 2005) (right of publicity claim was not preempted by the Copyright Act; model's identity was not copyrightable because it was not fixed in a tangible medium of expression, and rights protected by Illinois statute were not "equivalent" to any of the exclusive rights within general scope of copyright).
18 Fred Shapiro & Michelle Pearse, The Most-Cited Law Review Articles of All Time, 110 Michigan L. Rev. 1483 (June 2012).
19 4 Harv. L. Rev. 193 (1890).
20 Id. at 195.
21 Id. at 193.
22 171 N.Y. 538 (1902).
23 Id. at 544 & 24 Indeed of the 134 notes of decisions to section 50 in Mckinney's Consolidated Laws of New York Annotated, only two report criminal prosecutions for the unauthorized use of a person's likeness. Both cases were dismissed. See People, on Complaint of Stern v. Robert R. McBride & Co., 159 Misc. 5 (N.Y.C. Magis. Ct. 1936); People on Complaint of Maggio v. Charles Scribner's Sons, 205 Misc. 818 (N.Y.C. Magis. Ct. 1954).
25 New York Civil Rights Law § 51 provides in pertinent part:
Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.
26 The relevant language in section 51 reads:
[N]othing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed. . . .
N.Y. Civ. Rights L. § 51. This provision was added to section 51 in 1983 in response to a New York Court of Appeals decision that imposed liability on a stock photography licensing company, Contact Press Images, and its president, even though the photograph that it had licensed was lawfully used by the New York Times to illustrate a "newsworthy" article, which, as explained below is itself an exception to the statute's prohibitions. See Lawrence E. Savell, Right of Privacy – Appropriation of a Person's Name, Portrait, or Picture for Advertising or Trade Purposes Without Prior Written Consent: History and Scope in New York, 48 Albany L. Rev. 1, 28 n.112 (Fall 1983) (discussing the New York Legislature's reaction to Arrington v. New York Times Co., 55 N.Y.2d 433 (1982)). The legislature's purpose in adding the immunizing language was to provide freelance photographers and licensing companies the same protection that a staff photographer employed by a publisher or newspaper would have for lawful uses of a person's likeness in a photograph. Id.
27 See Messenger v. Gruner + Jahr Printing & Pub., 94 N.Y.2d 436, 441 (2000).
28 See Friedan v. Friedan, 414 F. Supp. 77 (S.D.N.Y. 1976 ) (news story with family photos about ex-husband of famous feminist not actionable because he was considered involuntary public figure).
29 See Arrington, 55 N.Y.2d 433 (use by paper of candid photo of plaintiff taken on street to illustrate story on "black middle class" not actionable because illustration of news story not for "use in trade or advertising"); Finger v. Omni Publications Int'l, 77 N.Y.2d 138 (1990) (use of photo of family to illustrate "caffeine sperm" article not tortious because although plaintiffs had no connection to story, the use of the photo was to illustrate a news article, not for "trade of advertising).
30 Alfano v. NGHT, Inc., 623 F. Supp. 2d 355 (E.D.N.Y. 2009).
31 New York adheres to the "single publication" rule for sections 50 and 51 of the Civil Rights Law: the one-year statute of limitations begins to run on the first publication of the alleged offending work. See Nussenzweig v. diCorcia, 9 N.Y.3d 184, 188 (2007) (Nussenzweig III). A potential plaintiff's lack of knowledge of the use of her name or likeness does not toll the running of the limitations period. Id.
32 Nussenzweig I, 11 Misc. 3d 1051(A) at *7, citing Altbach v. Kulon, 302 A.D.2d 655 (3rd Dep't 2003); Simeonov v. Tiegs, 159 Misc.2d 54 (N.Y. Civ Ct 1993); Hoepker v. Kruger, 200 F.Supp.2d 340 (S.D.N.Y. 2002).
36 Id. (emphasis in original).
37 159 Misc.2d 54 (N.Y. Civ. Ct. 1993).
38 Id. at 55 & 59.
39 Id. at 59. 556 40 200 F. Supp. 2d 340 (S.D.N.Y. 2002). 41 Id. at 349 (citing Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (2002)).
42 Regarding the exhibition catalog and the merchandise that reproduced the Kruger collage artwork, Judge Hellerstein used an analysis often seen in the newsworthiness context and considered whether the "primary aspect" of the depictions on the merchandise was commercial, and whether the public interest purpose (i.e., newsworthiness or artistic expression) was merely incidental to the commercial use. Id. at 350-51.
43 Nussenzweig II, 38 A.D.3d at 344.
45 Id. at 346.
46 Nussenzweig III, 9 N.Y.3d 184.
47 677 New Loudon Corp. v. State of New York Tax Appeals Tribunal, 2012 WL 5199386 (N.Y. Oct. 23, 2012)
48 See id. (citing Arkansas Writers' Project, Inc. v Ragland, 481 U.S. 221, 229-230 (1987)).
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