Nussenzweig v. DiCorcia

Erno Nussenzweig (1922- ) in a portrait by Philip-Lorca diCorcia (1953- )

Nussenzweig v. diCorcia is a decision by the New York Supreme Court in New York County, holding that a photographer could display, publish, and sell (at least in limited editions) street photography without the consent of the subjects of those photographs.

Erno Nussenzweig

Erno Nussenzweig (1922- ) is a retired diamond merchant from Union City, New Jersey. Nussenzweig was represented in this lawsuit by attorney Jay Goldberg.

Philip-Lorca diCorcia

Philip-Lorca diCorcia (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 Square in Manhattan. 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^[1], 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.^[2]

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. All five justices on the Appellate Division panel agreed that Nussenzweig's complaint was barred by the statute of limitations. 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 - 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.

See also

• Personality rights

References

1. ^ DiCorcia, Philip-Lorca (2001). Heads. Göttingen: Steidl. ISBN 3882434414. http://books.google.com/?id=SJjaAAAACAAJ. Retrieved 2008-08-19. 
2. ^ Gefter, Phillip (March 16, 2006). "The Theater of the Street, the Subject of the Photograph". New York Times. http://www.nytimes.com/2006/03/19/arts/design/19phot.html?_r=5&oref=login&pagewanted=all. Retrieved 2008-08-19. 

External links

• Nussenzweig v. DiCorcia