This New York Appellate Division case is not a copyright
case, but it may nevertheless be of interest to the readers of this blog, as it
affirmed the First Amendment right of Defendant, a photographer, over the right
to privacy of Plaintiffs’ children, whose pictures were taken surreptitiously
using a high powered camera lens and became the subject of an art exhibition.
The case is Martha Foster et al. v. Arne Svenson,
(2015 NY Slip Op 03068).
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| Do I See A Privacy Bill? |
Defendant Arne Svenson is a photographer. As he explained on his web site,
“he has turned outward from his usual studio based practice to study the
daily activities of his downtown Manhattan neighbors as seen through his
windows into theirs.” The result of this work became the series The Neighbors,
which was exhibited in 2013 in New
York and Los Angeles, and will be exhibited next year in Denver. Svenson used
a telephoto lens, inherited from a
bird-watching friend, to take pictures, from his own downtown Manhattan apartment, of people
living or working in a building across the street, without their knowledge,
taking advantage of its glass facade and open windows.
Defendant took pictures of Plaintiffs’ minor children, then
three and one year old, which became part of the exhibition. Plaintiffs asked
the defendant to stop selling these pictures, and defendant took down a picture
representing the two children together, but kept offering for sale the picture
representing Plaintiffs’ daughter alone. Plaintiffs then sent the gallery a
cease-and-desist letter, asking it to take down the pictures from its site and
to stop selling them. It complied, but the photographs were shown on several
media channels reporting about the exhibition, and the address of the building
was also made public.
Plaintiff filed a suit against Svenson, claiming invasion of
privacy and intentional infliction of emotional distress. The New York Supreme
Court, a court of first instance, denied
the claim on August 5, 2013 and granted defendant’s motion to dismiss.
Plaintiffs appealed.
New York’s Statutory
Right to Privacy
New York State does not does not recognize a common-law
right of privacy, and its only privacy statute,
New York Civil Rights Law §§ 50 and 51, is a right of publicity statute.
The Appellate Division provides a short history of the New York privacy law in
its discussion.
Under § 50, “[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.” § 51 of the statute
provides for injunctive relief and damages. As such, the statute only forbids nonconsensual
commercial appropriations of the name, portrait or picture of a living person. If
the person whose likeness has been appropriated consents to this use, or if the
use is noncommercial, then it is not prohibited.
The New York Supreme Court had noted in the Svenson case that “the question… is whether the photographs used by the photographer in a
show or as examples of his art qualified as a commercial use or for the purpose
of advertising or trade” and that the New York legislature “also sought to protect the constitutional
right of freedom of expression.”
Is Selling Art
Commercial Appropriation?
The photographs taken by Defendant had been offered for sale.
Does that mean that taking them without authorization constituted commercial
appropriation? Plaintiffs were arguing that these photographs were bought and
sold in commerce. However, the Appellate Division noted that New York courts “have refused to adopt a literal construction
[of “for advertising purpose” and “for
the purpose of trade”] because the advertising and trade limitations of the
privacy statute were drafted with the First Amendment in mind.”
The Appellate Division also cited its own Nussenzweig v. diCorcia 2007 case,
where plaintiff, Erno Nussenzweig, had claimed that defendant, Philip diCorcia,
had violated his New York statutory right of privacy when presenting in an art exhibition,
and selling to the public, a photograph of Plaintiff taken in the streets of
New York. Plaintiff argued that the photographer had made a commercial use of
his image. Indeed, diCorcia had grossed about $240,000 from the sale of a
limited edition of the photographs from this exhibition, and the photographs
had been sold for $ 20, 000 to $30,000 each.
The invasion of privacy action was found to be time-barred
in Nussenzweig, but two Justices
wrote in a concurring opinion that the artwork “constitutes a matter of general public interest entitled to First
Amendment protection.” They noted that plaintiff’s photograph had been
published “in both the popular press and
art media [which] confirm[ed] that the image is "a matter of legitimate
public interest to readers" so as to bring its use within the
newsworthiness exception to the privacy statute” and that “the inclusion of the photograph in a catalog
sold in connection with an exhibition of the artist's work does not render its
use commercial, as plaintiff suggests [because][i]f the image is a matter of public interest, it is immaterial whether
that interest is satisfied by viewing the original in a museum, art gallery or
private dwelling or by perusing a reproduction in an art magazine or other
publication.”
The Appellate Division concurred with the Nussenzweig concurrence. There was no
doubt for the court that Defendant’s photographs must be considered works of
art, as even Plaintiffs had conceded that Defendant was a renowned art
photographer and that he had assembled photographs to present them in an art
gallery exhibition.
For the Appellate Division, the fact that Svenson had made a
profit from the sale of the photographs does not render the use of the
photographs commercial, citing the Stephano v. News Group Publications 1984 case, where the New York Court of
Appeals explained that it was the content of the article at stake, but not the publisher’s
motive to increase circulation which determines, under the New York privacy
statute, whether a particular item is newsworthy, and thus protected by the
First Amendment, or merely commercial.
The Photographs are
Protected by the First Amendment
New York courts may find that a particular use of someone’s
likeness is protected by the First Amendment and is thus outside the scope of New
York Civil Rights Law §§ 50 and 51. In our case, the photographs were presented
in an art gallery.
The Appellate Division noted that, “[a]lthough the Court of Appeals has not been confronted with the issue
of whether works of art fall outside the ambit of the privacy statute, others
courts that have addressed the issue have consistently found that they do,”citing
as an example the 2002 Hoepker v. Kruger Southern District
of New York (SDNY) case, where the court found that that ”a careful weighing of interests” between privacy and freedom of
speech is necessary, and must be done by the courts on a case by case basis.
This may be particularly difficult if the protected speech is art, as art is
not "newsworthy events or matters of
public interest” the protection of which prevails over right of privacy,
but stated that “New York courts have
taken the position in the right of privacy context that art is speech, and,
accordingly, that art is entitled to First Amendment protection vis-à-vis the
right of privacy.”
Infliction of
Emotional Distress?
Plaintiffs had also argued that the photographs had been
obtained in an improper manner and thus should not been exempt from being
considered as advertising or trade under the statute. They did not, however,
cite any authority supporting this position. The Appellate Division took the
view that Plaintiffs were thus arguing that “the manner in which the photographs were obtained constitute[d] the
extreme and outrageous conduct contemplated by the tort of intentional
infliction of emotional distress and serves to overcome the First Amendment
protection.”However, the court did not find that Defendant’s behavior had been
outrageous, even if the pictures were taken while the children were inside
their home, as Defendant’s actions “certainly
do not rise to the level of atrocious, indecent and utterly despicable.” Also,
the Appellate Division noted that “the
depiction of children, by itself, does not create special circumstances which
should make a privacy claim more readily available.”
An Appeal to the
Legislature
New York, unlike other States, does not have a general invasion
of privacy statute, only a right to publicity statute. While the Appellate
Division reluctantly affirmed that there was no cause of action for violation
of the New York statute, it added that “in
these times of heighted threats to privacy posed by new and ever more invasive
technologies, we call upon the Legislature to revisit this important issue, as
we are constrained to apply the law as it exists.” It remains to be seen if
the New York Assembly will hear this plea.
You can also read about this case on The IPKat, in a post
penned by Valentina Torelli.
Image is courtesy of Flickr user cheb.odegaard under a CC BY 2.0 license.
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