“Peeping Tom” Photographer Defeats Right of Publicity Lawsuit

“Peeping Tom” Photographer Defeats Right of Publicity Lawsuit

by Jerry Glover
August 12, 2013

A much publicized photographer’s exhibition of pictures a photographer took from his New York City apartment of people living in a nearby building led to a lawsuit by a family included in one of those photos alleging a violation of New York’s right of publicity statutes.  Foster v. Svenson, No. 651826 (NY Sup. Ct. August 1, 2013). The court ruled that the photographs were artistic expression protected by the First Amendment and were not commercial uses of the plaintiffs’ likenesses.

Svenson is a professional photographer who used a telephoto lens to take pictures from his Manhattan apartment of the interiors of apartments in a nearby building. The building was essentially a glass façade. Svenson’s photos included images of people in that building going about their daily routines, sleeping, having conversations, playing with their children, etc. One photo included plaintiff’s children at least one of whom was clearly recognizable. No one in the photographs knew they were being photographed and, therefore, no consent to be photographed was given to Svenson. The photographer assembled all of these photos, entitled them “The Neighbors” and exhibited them at a gallery where copies were available for sale. An article about the exhibition in a New York City newspaper included the photo in which the children appeared.

New York Civil Rights Law Secs. 50 and 51 prohibit the use of a person’s name, portrait or picture for advertising purposes without written consent (in the case of a minor, the written consent of the minor’s parent or guardian). These statutes are some of the oldest right of publicity statutes in the nation. But the New York courts have construed these statutes to include a major free speech exception by requiring that the statutes be narrowly construed and that their prohibitions not be applied to newsworthy events or matters of public interest. Matters that are newsworthy or of public interest could include just about anything–social trends, political happenings and articles concerning consumer interest.

In this case the individual people appearing in the photographs were not of public interest. So did that alone mean that the photographs were a commercial use? The court determined that the collection were artistic works so that the inclusion of plaintiffs’ likeness in one of those photographs was not for the purposes of advertising or trade. The fact that the photographs were sold does not distract from their First Amendment protection. Even the New York Times is sold, but that doesn’t mean that it has no First Amendment protection for its content. The court also stated that any privacy rights the plaintiffs may have were secondary to the photographer’s free speech rights.

Finally the court noted that any advertising of the photographer’s gallery showing is permitted because the subject of the exhibition is protected. As long as the advertising is related to a protected activity, the right of publicity statutes do not apply. In this case, the court noted that the exhibition itself might be considered a newsworthy event.

THE TAKEAWAY:  Keep your curtains closed.

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