Photographing people without their consent in NY

[michael s.]

First a disclaimer: I've never spent substantial time litigating intellectual property issues. So I'm short on experience.<p>

 

But I more than make up for that by being long on opinions ! :) <p>

 

The intersection of "art" and "commerce" is a corner at which the traffic signals are enormously prone to malfunction. <p>

 

The ability of the states to legislate separately in this area is, as Bert notes, a complicating factor. <p>

 

The states cannot of course legislatively create property rights or publicity rights that negate the First Amendment, but there's a tremendous opportunity for mischief in the gray area created by statutes and court decisions which, given that each turns upon its own particular set of facts and statutory underpinnings, don't provide the clear and certain guidance that one would prefer to see.<p>

 

Here, for example, are two cases that have gotten significant attention in recent years:<p>

 

(i) Tiger Woods. The Court of Appeals for the Sixth Circuit (federal appellate court) in 2003 affirmed a summary judgment against Eldrick "Tiger" Woods, in a case in which Woods alleged that a limited edition painting by an artist that depicted Woods in connection with his victory in the 1997 Masters violated Woods' rights under federal and Ohio state law. The Court rejected Woods' claims under federal law that his likeness in essence stood as a trademark, and further held that his claim for violation of his publicity rights ran counter to the protections afforded the artist under the First Amendment.<p>

 

See a <a href=http://www.sidley.com/cyberlaw/features/jireh.asp>brief summary of the Tiger Woods case here</a>.<p>

 

(ii) The Three Stooges. The California Supreme Court unanimously held in 2001 that an artist's sketch of Moe, Larry, and Curly, subsequently reproduced and sold on lithographs and t-shirts, was not sufficiently "transformative" in character to override the protection of a California right of publicity statute, thus entitling the registered owner of all rights to The Three Stooges to recover damages and attorney's fees, notwithstanding the artist's claim of First Amendment protection. (In early 2002, the U.S. Supreme Court declined to hear the case.)<p>

 

Very brief <a href=http://www.freedomforum.org/templates/document.asp?documentID=13818>Three Stooges case summary here</a>.<p>

 

Incidentally, I appreciate that link, Bert. Thanks.

[csafdari]

Jonathan - regarding your question about photographing models in public places without their permission versus photographing unsuspecting Orthodox Jews (or anyone else, for that matter)

While I should NOT be considered a legal authority for any purpose whatsoever, there is something recognized in some states known as the "Right of Publicity" which, in some states is applicable to individuals like celebrities and models and movie-stars (who make their living from their appearances) while in other states it applies to everybody.

 

The Right of Publicity is a separate issue from the Right of Privacy. Right of Publicity statutes protect an individual's "property rights" in their own image (preventing commercial use of their image without their consent) while right of privacy statutes protect individual from mental anguish and embarrassment of the disclosure of personal information.

 

IF you're a particularly famous person and if you live in a state that recognizes the value of your "Right of Publicity" then I guess you can't be photographed in public without your consent and have that photograph used commercially. I guess NY doesn't have a law protecting a general right of publicity? (which is weird for a state that has so much show-business going on) but in any case the court ruled that in this particular case, the sale of the prints at an art gallery was not a commercial-use case anyway. So even if NY does have a Right ofPublicity statute, it would not apply --- that's my guess.

[michael s.]

Actually, New York does recognize a statutory right of publicity, but it applies only to use of one's "name, portrait or picture ... for advertising purposes or for the purposes of trade..."

 

The determination that the gallery sale of the photos at issue in the case we've been discussing fell outside that application was key to the Court's decision.