Nussenzweig v. DiCorcia
Encyclopedia
New York Supreme Court
The Supreme Court of the State of New York is the trial-level court of general jurisdiction in thestate court system of New York, United States. There is a supreme court in each of New York State's 62 counties, although some smaller counties share judges with neighboring counties...
in New York County
Manhattan
Manhattan is the oldest and the most densely populated of the five boroughs of New York City. Located primarily on the island of Manhattan at the mouth of the Hudson River, the boundaries of the borough are identical to those of New York County, an original county of the state of New York...
, holding that a photographer could display, publish, and sell (at least in limited editions) street photography
Street photography
Street photography is a type of documentary photography that features subjects in candid situations within public places such as streets, parks, beaches, malls, political conventions and other settings....
without the consent of the subjects of those photographs.
Erno Nussenzweig
Erno Nussenzweig (1922- ) is a retired diamond merchant from Union City, New JerseyUnion City, New Jersey
Union City is a city in Hudson County, New Jersey, United States. According to the 2010 United States Census the city had a total population of 66,455. All of the city is on land, an area of...
. Nussenzweig was represented in this lawsuit by attorney Jay Goldberg.
Philip-Lorca diCorcia
Philip-Lorca diCorciaPhilip-Lorca diCorcia
Philip-Lorca diCorcia is an American photographer. He studied at the School of the Museum of Fine Arts, Boston. Afterwards diCorcia attended Yale University where he received a Master of Fine Arts in Photography in 1979. He now lives and works in New York, and teaches at Yale University in New...
(1953- ) is an artist and photographer who shows with the Pace/MacGill gallery in New York City. DiCorcia was represented in this lawsuit by Lawrence Barth of the law firm of Munger, Tolles & Olson LLP in Los Angeles, California.
Photograph
The photograph at issue was taken by diCorcia on the streets of Times SquareTimes Square
Times Square is a major commercial intersection in the borough of Manhattan in New York City, at the junction of Broadway and Seventh Avenue and stretching from West 42nd to West 47th Streets...
in Manhattan
Manhattan
Manhattan is the oldest and the most densely populated of the five boroughs of New York City. Located primarily on the island of Manhattan at the mouth of the Hudson River, the boundaries of the borough are identical to those of New York County, an original county of the state of New York...
. Over the course of two years, DiCorcia used an elaborate system of strobe lights attached to construction scaffolding, and aimed them and his camera toward a fixed point on the sidewalk. From 20 feet away, he operated the camera's shutter and the lights, collecting images of passers-by - including Nussenzweig - without their knowledge. Nussenzweig's photograph was exhibited at the Pace/MacGill Gallery from September 6, 2001 through October 13, 2001, and published in a book titled Heads, co-published by Pace/MacGill. DiCorcia created ten limited edition prints of the photograph; no more will be printed. The limited edition prints were sold for USD $20,000-30,000 each.
Lawsuit
In 2005, Nussenzweig learned of the photograph and filed a lawsuit, claiming that diCorcia and Pace/MacGill had violated his privacy rights under New York law. Specifically, he claimed that their conduct violated Sections 50 and 51 of New York's Civil Rights Law, which prohibits the use of a person's likeness, without consent, "for advertising or for purposes of trade." Pointing to the fact that diCorcia and Pace/MacGill sold and published the photograph of Nussenzweig for a profit, Nussenzweig argued that such uses constituted "purposes of trade."DiCorcia and Pace/MacGill argued that the uses at issue were means of artistic expression, and thus were protected speech under the 1st Amendment to the U.S. Constitution and analogous provisions of New York's Constitution. They also argued that Nussenzweig's lawsuit was barred by the applicable statute of limitations, as it was filed more than one year after the photograph was first placed on display and for sale.
In a decision dated February 8, 2006, the trial court ruled in favor of diCorcia and Pace/MacGill on both grounds, and dismissed Nussenzweig's lawsuit. It ruled that the defendants' uses of Nussenzweig's likeness were not "commercial," but rather were forms of artistic expression protected by the First Amendment. Accordingly, the court held that Nussenzweig could not block the publication, display or sale of the photograph containing his likeness, and that he was entitled to no money from the photographer, the gallery or the book publisher. The court also dismissed the lawsuit as untimely, holding that Nussenzweig had only one year to file suit after the picture was first "published."
The dismissal was affirmed in March 2007 by the Appellate Division, First Department
New York Supreme Court, Appellate Division
The Supreme Court of the State of New York, Appellate Division is the intermediate appellate court in New York State. The Appellate Division is composed of four departments .*The First Department covers the Bronx The Supreme Court of the State of New York, Appellate Division is the intermediate...
. All five justices on the Appellate Division panel agreed that Nussenzweig's complaint was barred by the statute of limitations
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
. Two of the justices wrote a separate concurring opinion expressly upholding the trial court's decision on constitutional grounds, as well.
In November 2007, the New York Court of Appeals
New York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...
- the state's highest court - affirmed the victory for diCorcia. The Court of Appeals limited its opinion to the timeliness issue, holding for the first time that claims under New York privacy law must be brought within one year after first publication, whether or not the plaintiff learns of the publication during that period. The Court of Appeals did not reach the core dispute between privacy rights and photographers' rights of free expression.