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Right to Privacy Case in NYC
Link here For those following Right to Privacy versus Art, this is a case to closely watch. A quick overview: Photographer Takes a picture of a man in times square. Photographer puts it in a book she then sells. Person finds Picture. Person is suing under Right to Privacy to get a portion of the proceeds. It is an open shot, meaning he was a pedestrian in Times Square, and not a model. No release. No agreement. He had no knowledge the picture was taken. The general opinion seems to be that the man will lose (amoungst those I talked to) This will definately affect the RoP issues in the NY area. Their is no similiar case in the courts for that area. It will also clarify what is Commercial i.e. is an Artist selling pictures in a book considered Commercial - an extension of the current courts believes which is that the image must endorse a product or service - or Does a art photographer get the same protection as a photojournalist (which can not be sucessfully sued for something similiar) Follow this one closely if you take any kind of candid shots. Aug 08 05 07:05 am Link Photojournalism is essentially commercial photography, so it'll be interesting to see how this one plays out. Since NYC has absolutely no respect for right to privacy in general (social commentary), I don't see how this guy stands a chance in court  Aug 08 05 07:46 am Link Journalism is based on that which is newsworthy. A guy in a hat isn't necessarily newsworthy. Aug 08 05 08:10 am Link Posted by Ty Simone: QUOTE FROM ARTICLE: "...The friend recommended Nussenzweig contact Goldberg, the lawyer said. The suit claims Nussenzweig suffered "severe mental anguish, emotional distress, humiliation and embarrassment." He wants a cut of photos already sold and a ban on any displays...." Aug 08 05 08:12 am Link Posted by studio36uk: Posted by Ty Simone: QUOTE FROM ARTICLE: "...The friend recommended Nussenzweig contact Goldberg, the lawyer said. The suit claims Nussenzweig suffered "severe mental anguish, emotional distress, humiliation and embarrassment." He wants a cut of photos already sold and a ban on any displays...." If the image was used for promotion of the book, Then it will put to the test the Tiger Woods Case. Aug 08 05 08:29 am Link I surely hope the photographer will win. It would be just too ridiculous if a picture taken in one of the most public places in the world that doesn't show the subject in any derogatory manner would be considered an invasion of privacy. That being said, movie productions in NYC often have big signs around their shooting area warning anybody that if they appear unintentionally in the shot, they will not be entitled to compensation. They basically give up all their rights by passing the signs, or at least that's what the movie producers hope to accomplish. Aug 08 05 08:32 am Link $20,000 each is the most important part of the article... Aug 08 05 08:35 am Link It doesn't sound like a privacy issue to me. It sounds like a publicity issue. Just because you go out in public, you don't automatically waive your right to control the use of your image. Aug 08 05 08:36 am Link Due to reasonable expectation of privacy he has no claim. And, for the most part only images used in advertising have to be released (Most of the time to prevent a situation like this). So unless the photograph was used in advertisements to promote the book... The photographer will win. Although the sad thing being that the photographer will have to kill time in court, money on a lawyer, etc. Aug 08 05 08:44 am Link Posted by Ty Simone: It is interesting that the exact phrase in the NY privacy law is [or in the course of] "for trade" and does not refer to the more narrow legal construction of the phrase "commercial use" in this case or in the ordinary torts on privacy, but rather for use in the general course of trade (e.g. the mere sale of the image). I have a copy of the section of law somewhere but can't find it right at the moment. Aug 08 05 08:50 am Link Posted by studio36uk: That will raise even more issues. Is the broader application considered constitutional? Aug 08 05 08:59 am Link Posted by Ty Simone: Sorry Ty, I posted this as an edit to my first post but perhaps should have posted it after your comment: Aug 08 05 09:09 am Link FOUND IT: Link: NY STATE CONSOLIDATED LAWS - CIVIL RIGHTS - PRIVACY ARTICLE 5 Right of Privacy Section 50. Right of privacy Sec.50. Right of privacy. 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. and Sec.51. Action for injunction and for damages. Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person`s name, portrait or picture in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. But nothing contained in this article shall be so construed as to prevent any person, firm or corporation from selling or otherwise transferring any material containing such name, portrait or picture in whatever medium to any user of such name, portrait or picture, or to any third party for sale or transfer directly or indirectly to such a user, for use in a manner lawful under this article; nothing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; and nothing contained in this article shall be so construed as to prevent any person, firm or corporation from using the name, portrait or picture of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such name, portrait or picture used in connection therewith; or from using the name, portrait or picture of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait or picture used in connection therewith. NOTE: Ty, this is actually a worse situation then I recalled it from memory of the law. It would also seem to bar display away from a fixed land based business address [such as the photographer's actual studio or office]... e.g in a gallery or on the Internet, as those uses wouldn't clearly fall within the "exhibiting in or about his or its establishment" wording. Studio36 Aug 08 05 09:56 am Link Studio36, Thanks for the law quote. This case will definitely be an interesting one to follow. I think the problem may be in what is "The Purpose of Trade" to start, and if the court thinks that is overly broad, then the law comes down until fixed (or the court can decide what it means) Then comes the reasonability test. I think that is where this will fail. Think of it this way. On New Years Eve, In Time Square, Millions of people are photographed (or video taped with is actually multiple simultaneous photographs) watching the ball drop. There is no doubt that every one of those television broadcasts are for purpose of trade, because they sell advertising directly for that particular event. They have also sold the complete video on at least one occassion. Should they have had to have 1 million written waivers? What about pictures taken at rock concerts, public events etc? They are also sold commercially. I think the Court will strike down or severly limit this law. It does seem to infringe on the First amendment rights of an artist over the first amendment rights of the person (although no where in the first Amendment does it show any "right to privacy") Shall be extremely interesting. Aug 09 05 08:45 am Link |
