USA – NEW YORK Trends and Developments Contributed by: Alan Behr, Phillips Nizer LLP
oeuvre were identifiable images of the Foster fam - ily, including young children. These images were then assembled into a series titled The Neighbors , exhib - ited and sold in galleries in Los Angeles and New York City; some were later shown in media coverage about the exhibitions. The people in the photographs may have had no idea they were being observed, let alone photographed, through their windows – but this time art won, with dismissal of the complaint on motion by the defendant. Other Key Considerations There can be other considerations under New York law as well as the Civil Rights Act. In Perry v Rockmore (2025), the appearance on commercial websites of before-and-after photographs of the plaintiff’s rhino - plasty surgery did not support a claim under Sections 50 and 51 of the Civil Rights Act but did give rise to liability for breach of the fiduciary duty of doctor- patient confidentiality. Other doctrines of law might also have their say from time to time. In a way that has gone in and out of the national legal system with iterating perplexity, privacy slipped into constitutional law and now kind of rat - tles around inside it. In 1965, in the case of Griswold v Connecticut , the Supreme Court found a right of marital privacy in the “penumbras” of the Constitution, requiring protection from state attempts to restrict contraception. That reasoning was applied again by the Supreme Court in Roe v Wade , which recognised a constitutional right to abortion. Roe was partially reaffirmed in Planned Parenthood v Casey , but both cases were overruled by Dobbs v Jackson Women’s Health Organization . Roe was expressly overruled as to whether having an abortion is a right protected by the Constitution. The constitutional right of privacy recognised in Griswold and Roe remains formally (however nominally) intact.
It would be remiss not to close this section with a (so far) indirectly related turn in New York law: in 1992, the Court of Appeals ruled in People v Santorelli that, as men had been permitted by law since 1937 to be seen shirtless in public, with the limited exception of actions taken in furtherance of commercial purposes, it is perfectly lawful for any New York woman to go about in public naked from the waist up. Custom and usage continue to make that a right largely without practitioners, but it hints at an open-minded approach to what does or does not constitute a state of personal display to which an expectation of privacy attaches within New York State. Where does that leave us in New York? Virtually eve - ryone now has with them a phone camera capable of taking photographs that can be posted internation - ally within seconds following completion. If you want to start a (potentially expensive) lawsuit about what - ever happens with that, it would be wise to consider whether you have truly good reason to move forward and if less confrontational options for making your feelings known might be available.
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