Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, February 24, 2006

New York Trial Court Holds In Favor of Photographer, Gallery, in Privacy Case

Judge Judith J. Gische has ruled that photographer Philip-Lorca DiCorcia and the Pace Gallery did not infringe the rights of Erno Nussenzweig when DiCorcia took Nussenzweig's photograph, displayed it and sold it without Nussenzweig's consent. Nussenzweig filed suit under New York Civil Rights Laws §§ 50 and 51 against both DiCorcia and the gallery alleging that his privacy rights had been violated and that his image was being used for commercial purposes. An excerpt from the judge's ruling follows.

"Plaintiff denies that the photograph is art. He argues that defendants' intended purpose was to sell the photograph and reproductions thereof. Plaintiff claims the sale and/or intended sale of the photograph constitutes a commercial use that is actionable under the privacy laws. He points to the actual sales made to support his argument and also to the fact that the exhibition was in a venue operating for profit (e.g. an art gallery) and not a museum. Plaintiff further claims that no discovery has taken place in this case and that he needs to find out exactly the extent to which defendants are pursuing a commercial use of his likeness. Plaintiff urges that privacy cases require a balancing of competing constitutional interests, and that this can only be accomplished after trial. Plaintiff argues that freedom of expression is not an absolute guaranty, but requires a trier of fact to weigh plaintiff's constitutional rights to privacy and his right to practice his religion against defendants competing interests. The Court of Appeals has repeatedly held that the New York statutory right of privacy restricts the use of one's likeliness against use for advertising and trade only and nothing more. It is a strictly construed statute enacted with sensitivity to the potentially competing values of privacy protection versus free speech....In 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.Even while recognizing art as exempted from the reach of New York's Privacy laws, the problem of sorting out what may or may not legally be "art" remains a difficult one. Some states for example, limit art to transformative and not duplicative likenesses.... Other states have limited exempted use to original works of fine art, but not to distribution of reproductions....New York has been fairly liberal in its protection of what constitutes art. ...[T]he court recognized that art can be sold, at least in limited editions, and still retain its artistic character. This analysis recognizes that first amendment protection of art is not limited to only starving artists. The analysis in Hoepker is consistent with the primary purpose/ incidental purpose doctrines, that have developed in connection with the newsworthy exemptions to privacy protections. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes.... In their moving papers defendants have prima facie shown that the photograph is "art". This is not a subjective determination, and cannot be based upon the personal preferences of either party or the court. Defendant DiCorcia has demonstrated his general reputation as a photographic artist in the international artistic community. With respect to the HEADS project, DiCorcia has described the creative process he used to shoot, edit and finally select the photographs, ultimately used. The photographs were not simply held for sale in the Pace gallery, but they were exhibited and reviewed by the relevant artistic community. None of the HEADS photographs were used to advertise anything other than the HEADS collection. The catalogue portfolio was used to advertise the exhibition, which is a permitted use under Civil Rights Laws §§ 50, 51.....Plaintiff does not raise any additional facts from which a conclusion could be drawn that the photograph was used for trade. There is no dispute that an extremely limited number of the photographs were sold for profit. There is also no dispute that Pace is an art gallery, not a museum, with a commercial objective of financial profitability. These facts in themselves, however, do not otherwise convert art into something used in trade. They do not raise a sufficient factual basis to challenge defendants prima facie showing that the photograph is art....Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive. The sincerity of his beliefs is not questioned by defendants or this court. While sensitive to plaintiff's distress, it is not redressable in the courts of civil law. In this regard, the courts have uniformly upheld Constitutional 1st Amendment protections, even in the face of a deeply offensive use of someone's likeness....The court, therefore, finds that plaintiff has failed to state a cause of action under New York Civil Rights Laws §§ 50 and 51. Summary judgment is granted on such basis and the motion to strike the affirmative defense is denied."

The case is 2006 NY Slip Op 50171(U). Read more here.

https://lawprofessors.typepad.com/media_law_prof_blog/2006/02/new_york_trial_.html

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