Nussenzweig v. DiCorcia
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Nussenzweig v. DiCorcia is a New York County, New York Supreme Court case allowing the display, publication and sale (at least in limited editions) of "street photographs" without the consent of the subjects of those photographs.
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[edit] Erno Nussenzweig
Erno Nussenzweig (1922- ) is a retired diamond merchant from Union City, New Jersey. Nussenzweig was represented by Jay Goldberg as his lawyer.
[edit] Philip-Lorca diCorcia
Philip-Lorca diCorcia (1953- ) is an art photographer, who is represented by the Pace/MacGill gallery in New York City. Defending diCorcia was Lawrence Barth of the law firm of Munger, Tolles & Olson LLP.
[edit] Image
The image at issue was taken by diCorcia in Times Square in Manhattan. DiCorcia used a strobe flash attached to construction scaffolding, and pointed his camera toward a fixed point on the the sidewalk. From 20 feet away, he operated the shutter and collected images of passers-by. The image of Erno Nussenzweig was exhibited at the Pace/MacGill Gallery in New York City from September 6, 2001 through October 13, 2001, and published in a book entitled Heads, co-published by Pace/MacGill. The original prints of the photograph of Nussenzweig sold for $US 20,000-30,000 each, and the entire edition of ten prints has been sold; no more original prints will be made.
[edit] Case
In his lawsuit, Nussenzweig claimed 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.
The court granted summary judgment in favor of diCorcia and Pace/MacGill. It ruled that the defendants' uses of Nussenzweig's likeness were not "commercial," but rather were forms of artistic expression protected by the 1st 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 case was decided on February 8, 2006. Nussenzweig has filed an appeal, which has not yet been decided.
[edit] See also
- Personality rights
- Arrington v. New York Times where the court ruled "the price every person must be prepared to pay for a society in which information and opinion flow freely."
