'Art' Photo Is Not Subject to Privacy Law, Judge Finds
Nussenzweig v. diCorcia, 108446.05
Not all artists need be starving, a Manhattan judge has ruled.
A dispute between a top photographer and the Orthodox Jew whose picture he surreptitiously took at Times Square -- then sold 10 prints of at $20,000 to $30,000 each -- turned on the question of whether the photograph constitutes commerce or art.
As commerce, the picture would be subject to the restrictions set forth in New York's right-to-privacy laws; as art, it would not.
The disputed photograph, Supreme Court Justice Judith J. Gische has ruled, is art.
"New York has been fairly liberal in its protection of what constitutes art," Justice Gische held in Nussenzweig v. diCorcia, 108446.05.
New York courts have "recognized that art can be sold, at least in limited editions, and still retain its artistic character," Gische noted. "This analysis recognizes that first amendment protection of art is not limited to only starving artists. ... A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes."
Defendant Philip-Lorca diCorcia's show "HEADS" appeared at the Pace Gallery in Chelsea in September and October 2001. The exhibition featured photographs of 17 people taken without their knowledge in New York, Tokyo, Calcutta and Mexico City.
The photographs, tightly focused on their individual subjects and printed at four-feet-by-five-feet, created uncommonly intimate likenesses.
In addition to the Pace exhibition, the photos appeared in a catalogue and numerous advertisements and reviews.
Plaintiff Emo Nussenzweig, a Hasidic Jew with a deep conviction that the use of his image violates the Second Commandment's prohibition against graven images, learned of the use of his portrait in 2005.
Shortly thereafter, he initiated the present proceeding, alleging that diCorcia and catalogue publisher Pace/MacGill violated his rights to privacy under New York law.
The defendants contended that the one-year statute of limitations precluded the suit: The photographs were published in September 2001, and Nussenzweig filed his suit in 2005. In response, Nussenzweig argued that the statute did not begin to run until he learned of the exhibition.
Gische agreed with the defense, noting that for privacy claims in the First Department, the clock starts with the first unauthorized use. However, noting a split between departments, she opted to consider the merits of Nussenzweig's claim.
The defense conceded that the claim satisfied three of the four requirements of the privacy law: It used Nussenzweig's portrait without his consent within the state of New York. However, the defense contended, the picture was not used for "advertising purposes or for trade," as required by law.
Gische agreed.
"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," she wrote.
"In Hoepker v. Kruger [200 FSupp2d 340], the court recognized that art can be sold, at least in limited editions, and still retain its artistic character," Gische held. "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."
Though she dismissed the case, Gische wrote that she felt sympathetic to Nussenzweig's concerns.
"Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive," she concluded. "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 First Amendment protections, even in the face of a deeply offensive use of someone's likeness."
Solo practitioner Georges G. Lederman represented Pace/MacGill.
Kenneth Schacter of Bingham McCutchen and Lawrence C. Barth of the Los Angeles office of Munger, Tolles & Olson represented diCorcia.
The decision "strikes the proper balance between New York's privacy law and the First Amendment's protections for artistic protection," Barth said. "The court understood and reaffirmed the principal that an artist's rights, just like other free speech rights, can't be curtailed by state law. So we're very pleased by the result."
Jay Goldberg represented Nussenzweig.
"I think people have to be very careful when they walk on the street that their tie matches their suit, because people have the right to take pictures no matter how flattering or unflattering," Goldberg said Thursday of the decision. "[Mr. Nussenzweig] has lost control over his own image. It's a terrible invasion to me. The last thing a person has is his own dignity."
Goldberg said that he plans to appeal.
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