N.Y. Times Article: Nussenzweig versus diCorcia

[Jeff Conrad]

I think it's important to remember Neil's caveat in the initial post: the
decision derives from New York law that may differ from that in other
states.

The operative concept isn't always “art” versus
“commerce.” For example, the California Civil Code gives very
strong “right of publicity” to living persons and to heirs of
deceased persons:

3344. (a) Any person who knowingly uses another's name, voice, signature,
photograph, or likeness, in any manner, on or in products, merchandise, or
goods, or for purposes of advertising or selling, or soliciting purchases
of, products, merchandise, goods or services, without such person's prior
consent, or, in the case of a minor, the prior consent of his parent or
legal guardian, shall be liable for any damages sustained by the person or
persons injured as a result thereof.

The only exemption is for “news, public affairs, or sports broadcast
or account, or any political campaign.” Section 3344.1 gives similar
rights to heirs or assigns of deceased persons. The prevailing party is
entitled to attorneys' fees and costs.

As noted by Judge Gische, that law (under a previous numbering) was tested
in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387
(2001), which held that only “transformative” art had First
Amendment exemption from California's “right of publicity”
laws. That case involved an artist, Gary Saderup, who sold reproductions
of charcoal drawings of the Three Stooges without the consent of Comedy
III, the registered owner of the right of publicity. The Court held that
Saderup's drawings were essentially literal likenesses that simply profited
from the fame and goodwill of the Three Stooges. The Court upheld the
lower court award of $75,000 (Saderup's estimated profits) in damages and
$150,000 in attorneys' fees, and noted that selling reproductions of the
drawings in any form required the permission of the holder of the
right of publicity. The U.S. Supreme Court declined to hear the appeal.

Presumably, most photographs would be even less transformative than a
charcoal drawing, so that at least in California, a model release would
seem a good idea for anything but bona fide news. Some other states
have similar laws, so a discussion with one's IP attorney might be a good
investment for anyone who sells images (graven or otherwise) of people.

[Roger Krueger]

Jeff: I don't see how the difference in statute matters--the whole point of the diCorcia case was 1st Amendment right of expression trumping the state law. This line of reasoning seems mostly immune to the content of the statute.

But Saderup news.findlaw.com/hdocs/docs/stooges/cmdy3sdrp43001opn.pdf certainly has a different discussion of the factors involved in determining whether a work is protected or not. Interestingly, the court in Saderup doesn't seem to define transformativeness as an absolute standard, but an element to be balanced against the value added by the reputation of the celebrity involved. How this would be applied regarding someone (like Nussenzweig, and 99.9% of all street photography subjects) who has zero value as a celebrity remains very unclear. I'd still give a California diCorcia a better than 50/50 chance even in the face of this precedent.

It's also very interesting that the court in Saderup openly questioned the decision in the Tiger Woods case www.rcfp.org/news/2003/0620etwcor.html implying that it would decide differently. This stuff really is all local, both in case law and statute.

I think the real importance of Saderup is that it gives plaintiffs at least a ray of hope, a ray that could sustain them through a series of expensive trials, whereas in the 6th Circuit the Tiger Woods case would seem to offer precedent for quick dismissal. The 6th in general seems to be very anti-rights-holder--this is the same court that decided against the Rock and Roll Hall of Fame, a decision some have suggested would have come out very differently in another court.

One element of the California law that is VERY interesting is the "loser pays costs" provision. Would that survive the meat of the statute being found subordinate to the 1st Amendement in a particular case? Because, as a photographer, the real problem with this sort of case is that even if you win you're generally stuck with ruinous legal bills.

I agree that, if you intend to paint a target on your back, a discussion with an IP attorney would be a very good investment. But I'd say it's as least as important to familiarize yourself with the principles and decisions involved. Attorneys are as fallible as the rest of us, you need to be able to sniff out if your guy has really done the work for you, or if he's spouting a conservative guess off the top of his head. As long as he (a) collects his fee and (b) doesn't get sued when you get sued--he's succeeded in his view. Which is not the same as doing his best to determine what you really can get away with.

[paulr]

Thanks for the explanations, Oren.

I'm wondering if anyone has ideas about the Christian take on the 2nd commandment. I'm usually confused by the relationship between christianity and the old testament ... it seems as if some of the old is considered trumped by the new, and some of it isn't. i don't know who gets to decide which parts of the old testament are considered obsolete, and which are still engraved on stone tablets.

[Mark_3632]

I can give you the Catholic point of view...Hold On a second while I put on the asbestos suit...There we go.

No part of the new testament trumps the ten comandmeents. I was also always taught that the second comandment was pretty cut and dry. It deals with creating images of other gods and in comandment three the worshiping of those images. SO, If I shot this guy's photo, titled it "the face of god", and built a shrine around it then I would most definately be violating the second comandment, and the third. Father Valentine, a visiting priest from Rome, put it like this (paraphrased of course):

"The ten commandments are the ten commandments. They are straight forward. God intended them to be this way so there would be no confusion. It is his people who have worked overly hard complicating them."

A photo of a person on the street, sold in a gallery, in no way violates the second comandment. No, I am not aand expert on the Catholic church but I have done a lot of reading.

[paulr]

"The ten commandments are the ten commandments. They are straight forward. God intended them to be this way so there would be no confusion. It is his people who have worked overly hard complicating them."

which is interesting in this context, because in any studious translation of the bible i've seen, graven images are only one kind of image that's forbidden. which suggests that most christian interpretations, including the catholic one, are not in fact straightforward. they appear to pick and chose the phrases that support their theological predispositions, and dismiss the ones that are problematic.

unless there is some deeper, more rigorous rhyme and reason to these selective interpretations that no one's been able to explain to me.

related to all of this, is there a particular version of the bible that's considered official within the catholic church?

[Mark_3632]

Paul Said: "which is interesting in this context, because in any studious translation of the bible i've seen, graven images are only one kind of image that's forbidden. which suggests that most christian interpretations, including the catholic one, are not in fact straightforward. they appear to pick and chose the phrases that support their theological predispositions, and dismiss the ones that are problematic."

Here is a pretty good explanation: http://en.wikipedia.org/wiki/Ten_Commandments#Orthodox_and_Catholic_Christianity

Maybe my upbringing in the Catholic Church was different than others but several priests taught not to take the bible in pieces, but to see it as a whole. That every verse is tied to the one following and the one before. Though i was also taught that specific lessons can be learned from different parts, but these lessons were only part of the whole. I have encountered several other catholics who do what you say and a whole heap load from other faiths maybe that is just human nature. A baptist minister I used to have lunch with on occaison in college described it this way, when i asked pretty much the same thing you did. He said that the phrases he quoted from the bible were like the topic sentences of a paragraph, or the thesis statement of an essay. They held the true meaning while the other portions served as support, and explanation sentences upholding that verse. That is one person's take. I am not one to judge who is right or who is wrong though.

As for the "official" bible of the catholics, I have no idea. I was given a bible on the day of my confirmation by a person who got it on their confirmation. It does fine. We do have the Catechism. That is a mother to wade through, though.

[Jeff Conrad]

<cite>
I don't see how the difference in statute matters--the whole point of the
diCorcia case was 1st Amendment right of expression trumping the state law.
This line of reasoning seems mostly immune to the content of the statute
</cite>

That's not how I read Judge Gische's opinion. Although the First Amendment
was mentioned several times, it did not seem to be essential to the
decision to dismiss the action. Rather, in finding that diCorcia's work
was &ldquo;art,&rdquo; there was no violation of New York Civil Rights Law
&sect;&nbsp;50, and consequently, no cause for action.

The situation with Saderup was quite different. The former &sect;&nbsp;990 of
the California Civil Code afforded broader protection than does the New
York law; assuming that we dismiss, as the Court quickly did, Saderup's
laughable attempt at construction of the statutory language, there was no
doubt that his actions violated the statute. Consequently, his defense
required that his work be protected speech under the First Amendment.

Although <cite>Comedy III</cite> included a lengthy discussion of balancing
right of publicity with free expression protected by the First Amendment,
the test depended primarily on the extent to which the work was
&ldquo;transformative,&rdquo;

&ldquo;This inquiry into whether a work is 'transformative' appears to us
to be necessarily at the heart of any judicial attempt to square the right
of publicity with the First Amendment.&rdquo;

The Court dismissed the contention that any portrait is a creative work and
consequently automatically entitled to First Amendment protection:

&ldquo;... he [Saderup] argues that all portraiture involves creative
decisions, that therefore no portrait portrays a mere literal likeness, and
that accordingly all portraiture, including reproductions, is protected by
the First Amendment. We reject any such categorical position.&rdquo;

It certainly could be argued that the &ldquo;transformative&rdquo; nature
of street images derives largely from the context, although in the
particular case of the image of Mr. Nussenzweig, this would seem a weak
argument.

That diCorcia's prints were made in limited edition and sold only in a
&ldquo;noncommercial&rdquo; venue appeared critical to
<cite>Nussenzweig</cite>; because this was not relevant to <cite>Comedy
III</cite>, this issue was not addressed, although the Court appeared to
suggest that it might not be of great importance.

As Roger mentioned, another significant difference between
<cite>Nussenzweig</cite> and <cite>Comedy III</cite> is that the latter
involves profiting from the celebrity of the right-of-publicity holder.
There is no question that protection of celebrity images was foremost in
the minds of the legislators; the bill that redesignated former &sect;&nbsp;990
of the California Civil Code was titled the &ldquo;Astaire Celebrity Image
Protection Act.&rdquo; However, the statutory language makes no mention
of celebrity, stating simply,

&ldquo;Any person who knowingly uses another's name ...&rdquo;

seemingly protecting famous and anonymous alike. I am not sure that it
legally could be otherwise; in any event, I personally would have a real
problem if the law afforded greater protection to, say, Paris Hilton than
to Mr. Nussenzweig. Such a position also would seem counter to
well-established legal doctrine that generally affords less privacy
protection to public figures than to other individuals.

Because <cite>Comedy III</cite> dealt with celebrity rather than with Mr.
Nussenzweig, the Court did not address the issue of an ordinary person who
objected, for whatever reason, to the use of his image without permission.
To me, the statutory language would seem quite clear, but the authoritative
interpretation obviously will need to come from the courts.

For a typical street photograph, practicality would preclude an action
brought under California Civil Code &sect;&nbsp;3344, simply because the
potential award is tied to the profits arising from unauthorized use of an
image. I doubt that a T-shirt bearing my image, authorized or not, would
be a hot seller. In the case of diCorcia's work, however, the reported
profits were substantial, and given that additional prospect of punitive
damages and recovery of attorneys' fees, Mr. Nussenzweig well might have
had an incentive to bring suit had he been in California.

At present, there is one other key distinction between <cite>Comedy
III</cite> and <cite>Nussenzweig</cite>: the former was decided in
California's highest court, and is solid legal precedent; the latter was
decided in a trial court, and is not even authority in New York County. We
may learn more if Mr. Nussenzweig decides to appeal.

This has been quite an interesting and informative discussion. The ethical
questions about the use of Mr. Nussenzweig's image may be unanswerable; at
least for me, however, the broad-brush answer to the legal question would
seem to remain unsettled.

[Walt Calahan]

Man, we've got some real lawyers here!

And they have time for photography too.

Do they get billable hours posting here? Grin.

[paulr]

the smartest lawyers probably find a way to bill for the time they spend photographing.

a friend of my dad's was analysing the cryptic bill from his lawyer one time .... he asked about one the codes. the lawyer explained that it represented time spent thinking about his case while sitting on the toilet.

my dad's friend was outraged, but the lawyer said, "would you rather i NOT think about your case while sitting on the toilet?"

[Jeff Conrad]

In thinking further about my comments (let's not get into where ...), I may
have been overly dismissive of First Amendment considerations. Although
the New York privacy laws were crafted to avoid conflict with the First
Amendment, had there been a conflict, the First Amendment obviously would
have trumped, as Roger indicated, and as Judge Gische's opinion strongly
implies.

Assuming there is reasonable agreement on what is &ldquo;newsworthy,&rdquo;
differing state court interpretations of what constitutes &ldquo;art&rdquo;
probably are as significant as differences in privacy laws in determining
what constitutes misappropriation of a person's likeness. Unless the Gang
of Nine decide to intervene, these differences probably will persist. This
isn't the best of all possible worlds for the photographer; for example,
should one consider the possibility of an eventual exhibition and sale in a
state with strong privacy laws and restrictive interpretations of art? If
diCorcia's image of Nussenzweig had been exhibited and sold in California,
and Nussenzweig brought action in California courts, we probably would be
closer to having that answer.