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June 10th, 2015
Can a Visual Artist Use Another Person’s Image in Visual Art?
Recent copyright infringement cases - including lawsuits against Richard Prince and Shepard Fairey - have sensitized the art community to the potential legal pitfalls associated with the use of another person's copyrighted photographs. But what about the subjects of those photographs? Do the subjects have a claim if a photographer uses their image without consent? According to a recent New York appellate court decision the answer under New York law clearly is "no" if the photographs are fine art. While the decision confirms the strong First Amendment protection for works of art, it troubles people who believe the subject's rights were violated because the photographs were taken through the windows of people's homes. Here's what happened.
In Foster v. Svenson, the Fosters, residents of an apartment building in Tribeca, sued Arne Svenson, a critically acclaimed art photographer, after discovering that Mrs. Foster and her young children were the photographer's unwitting subjects. Mr. Svenson took the photographs from his own apartment using a telephoto lens to capture his subjects in a neighboring apartment building. Photographs of Mrs. Foster and her one-year old son in a diaper, and three-year old daughter in a swimsuit, were exhibited in a gallery and made available for sale for thousands of dollars each.
The Fosters claimed Svenson violated Sections 50 and 51 of the New York Civil Rights Law. That statute, which codifies New York's tort of invasion of privacy, prohibits the use of a person's name, portrait or picture for advertising or trade purposes. In defense, Svenson argued that the creation, sale and marketing of his fine art photographs did not constitute advertising or trade sufficient to trigger Sections 50 and 51. The trial court agreed with the artist and dismissed the complaint.
The appellate court affirmed, noting that Sections 50 and 51 must be construed narrowly to strike a balance between the concerns of private individuals and the First Amendment freedom of speech. Accordingly, the privacy statute does not apply to newsworthy events and matters of public concern, including press reports and many forms of artistic expression such as literature, film and theater. The appellate court, following precedent established by other courts, ruled that fine art falls under the newsworthy and public concerns exemption.
The plaintiffs also argued that the photographer's invasive conduct justified their claims. While other jurisdictions have recognized a claim for "unreasonable intrusion upon seclusion" and "unreasonable publicity given to another's private life," in New York the right to privacy is governed exclusively by Sections 50 and 51 of the Civil Rights Law. See, e.g., Howell v. N.Y. Post Co., 81 N.Y.2d 115 (1993). Even though the court ruled that "many people would be rightfully offended by the intrusive manner in which the photographs were taken," the court applied the law as it exists and dismissed the claims. The court, however, called upon the legislature to revisit this issue, given the "troubling facts" of the case and "heightened threats to privacy posed by new and ever more invasive technologies."
In reaction to the Foster decision, the New York legislature recently has proposed legislation to amend Sections 50 and 51 of the New York Civil Rights Law. See Bill A.07804, S. 0583.The amendments, if passed, would prohibit a person from knowingly recording or capturing a visual image of another person within a dwelling and having a reasonable expectation of privacy therein. Any person engaging in such conduct would be guilty of a criminal misdemeanor, and aggrieved persons could sue for monetary damages and an injunction prohibiting dissemination of the images.
In light of the Foster case, artists can rest assured that the use of another's likeness in fine art will not violate the privacy rights of the subject of the work under New York law. While the legislature has proposed legislation to prohibit the type of conduct engaged in by Mr. Svenson, the proposed amendments would apply narrowly so that the artist's First Amendment rights would be protected -absent proof that the photographer shot the images through the window of the subjects' dwelling.
If you have any legal questions about the Foster case or other art law issues, please contact Amelia Brankov at (212) 826-5574 or firstname.lastname@example.org or any other member of the Frankfurt Kurnit Art Law Group.
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Recent NYS Sales Tax Law Change Affects Art Sales Between Related Entities
On August 14, 2017, the New York State Department of Taxation & Finance issued a Technical Memorandum, TSB-M-17(4)S, which will be of interest to many New York-area art dealers and collectors. Read more.
August 23 2017