USA – NEW YORK Trends and Developments Contributed by: Alan Behr, Phillips Nizer LLP
The court articulated a clear rule: “Consistent with the statutory – and constitutional – value of uninhibited discussion of newsworthy topics, we have time and gain held that, where a plaintiff’s picture is used to illustrate an article on a matter of public interest, there can be no liability under Sections 50 and 51 until the picture has no real relationship to the article or the article is advertisement in disguise.” In simple terms, there is a three-part test applicable to news media. There is no actionable claim under the Civil Rights Act if: • the photograph illustrated that an article has news - worthiness (which, the court made clear, “is to be broadly construed”); • there was a real relationship between the image and the story; and • the writing was not “advertising in disguise” (such as presumably would be advertorial). A high bar has thereby been set when seeking to assert a claim of privacy against a photograph used as news; however, what if the use is not merely adver - tising in disguise but advertising presented as such? Cohen v Herbal Concepts Inc In 1984, the New York Court of Appeals decided Cohen v Herbal Concepts Inc (1984). The facts relied upon by the court in its decision were simple: a young mother, Susan Cohen, and her small daughter were surreptitiously photographed from behind, their faces not visible, while wading nude in a stream on private property. Without consent, the image was later used in an advertisement by Herbal Concepts for a prepara - tion designed to fight cellulite – the commercial mes - sage being that the condition clearly did not trouble the woman in the image. Ms Cohen, along with her husband, filed an action under New York Civil Rights Law Section 51, claiming that privacy had been vio - lated through the unauthorised commercial use of their image. The Court ruled that a person can be considered identifiable even if her face is not shown in a photograph. Identifying features could include “their hair, bone structure, body contours and stature and their posture”. Identification of Ms Cohen and her daughter from those features such that a violation of
the Civil Rights Act would follow was a matter for the jury to determine, and so the court allowed the privacy claim to proceed. However, what if there is no news and the use is not in advertising, but a question arises as to ars gratia artis (art for art’s sake)? Art about which the public is aware is nearly always made for display and sale in the art marketplace; does that make an art photograph something in “trade” under the Civil Rights Act? Nussenzweig v diCorcia In Nussenzweig v diCorcia (2007), the Court of Appeals dismissed a privacy claim arising from candid photo - graphs taken in Times Square and later exhibited in an art gallery. Philip-Lorca diCorcia did what photog - raphers have been doing in earnest on New York City streets since the launch of the first Leica camera over a century ago: snapping images of passersby. While in Times Square, he made multiple images, one of which turned out to be of Erno Nussenzweig, who was caught wearing traditional Hasidic Jewish attire and was shown with his bearded face in view. That photograph became one of 17 by diCoria displayed in a fine art exhibition at Pace/MacGill Gallery entitled Heads . The defendants won on summary judgment because the claim had been time-barred by the one- year statute of limitations that applies to Civil Rights Act claims. It is useful just the same to examine the concurring opinion from the lower appellate court. It reached into the question of the application of the First Amendment, opining that “inclusion of the photograph in a catalog sold in connection with the exhibition of the artist’s work did not render its use commercial pursuant to the privacy statute”, with the expression of the artistic ideas behind the work being protected by the First Amendment. Foster v Svenson Similarly, in Foster v Svenson , the Appellate Division of the New York County Supreme Court First Department decided that candid art photographs – this time of people in private spaces – fell outside the Civil Rights Act. The defendant, the fine-art photographer Arne Svenson, took candid telephoto pictures through the window of his apartment in a neighbouring building, capturing residents visible to him through the largely glass façade of the building opposite. Included in his
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