"What is the difference between "artistic endeavor" and" commercial intent""
Extract from the decision for academic study:
In essence, with regards to art the judges statement that "This analysis recognizes that first amendment protection of art is not limited to only starving artists" i.e. it does not cease to become art if the artist makes a profit from it.
...The Court of Appeals has repeatedly held that the New York statutory right of privacy restricts the use of one's likeliness against use for advertising and trade only and nothing more. It is a strictly construed statute enacted with sensitivity to the potentially competing values of privacy protection versus free speech. Messenger v. Gruner, 94 NY2d 436 (2000); Finger v. Omni Publs. Int., 77 NY2d 138 (1990); Arrington v. New York Times, 55 NY2d 433 (1982).
There are recognized categories of protected uses that are not actionable under Civil Rights Laws §§ 50 and 51. The most widely recognized protected category is for matters that are "newsworthy." Messenger v. Gruner, supra. The courts also recognize that as long as the primary purpose of the use is newsworthy, incidental or ancillary commercial use of the image does not otherwise turn a protected use into an unprotected use. Arrington v. New York Times, supra; Altbach v. Kulon, 302 AD2d 655 (3rd dept. 2003). Thus, for example, use of a likeness in connection advertising or selling newspaper subscriptions does not convert an excepted use into an actionable use under the New York State Privacy Laws. Messenger v. Gruner, supra; Velez v. VV Pub. Cap, 135 AD2d 47 (1st dept. 1988) lv to app den 72 NY2d 808 (1988). Moreover, a profit generating motive will not convert an otherwise newsworthy use of someone's likeness into one that is used for advertising or trade purposes. Dworkin v. Hustler Magazine, Inc., 867 F2d 1188 (9th Circuit) cert den 110 S Ct 59 (1989).
In recent years, some New York courts have addressed the issue whether an artistic use of an image is a use exempted from action under New York States Privacy Laws. Altbach v. Kulon, 302 AD2d 655 (3rd dept. 2003); Simeonov v. Tiegs, 159 Misc 2d 54 (NY Civ Ct 1993); Hoepker v. Kruger, 200 FSupp2d 340 (SDNY 2002). They have consistently found "art" to be constitutionally protected free speech, that is so exempt. This court agrees.
Even while recognizing art as exempted from the reach of New York's Privacy laws, the problem of sorting out what may or may not legally be "art" remains a difficult one. Some states for example, limit art to transformative and not duplicative likenesses. See for example: Comedy II Publications, Inc. v. Gary Saderup, Inc., 25 Cal 4th 387 (2001) cert den 534 US 1078 (2002) [only transformative art was entitled to 1st amendment protection against California]. Other states have limited exempted use to original works of fine art, but not to distribution of reproductions. Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 250 GA 135, 296 SE2d 697 (Sup Ct 1982).
New York has been fairly liberal in its protection of what constitutes art. Altbach v. Kulon, supra; Simeonov v. Tiegs, supra; Hoepker v. Kruger, supra. In Hoepker v. Kruger, the [*7]court recognized that art can be sold, at least in limited editions, and still retain its artistic character. This analysis recognizes that first amendment protection of art is not limited to only starving artists. The analysis in Hoepker is consistent with the primary purpose/ incidental purpose doctrines, that have developed in connection with the newsworthy exemptions to privacy protections. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes. DiGregorio v. CBS, Inc., 123 Misc 2d 491 (Sup Ct NY Co 1984).
In their moving papers defendants have prima facie shown that the photograph is "art". This is not a subjective determination, and cannot be based upon the personal preferences of either party or the court. Defendant DiCorcia has demonstrated his general reputation as a photographic artist in the international artistic community. With respect to the HEADS project, DiCorcia has described the creative process he used to shoot, edit and finally select the photographs, ultimately used. The photographs were not simply held for sale in the Pace gallery, but they were exhibited and reviewed by the relevant artistic community.
None of the HEADS photographs were used to advertise anything other than the HEADS collection. The catalogue portfolio was used to advertise the exhibition, which is a permitted use under Civil Rights Laws §§ 50, 51. Altbach v. Kulon, supra.
Plaintiff does not raise any additional facts from which a conclusion could be drawn that the photograph was used for trade. There is no dispute that an extremely limited number of the photographs were sold for profit. There is also no dispute that Pace is an art gallery, not a museum, with a commercial objective of financial profitability. These facts in themselves, however, do not otherwise convert art into something used in trade. They do not raise a sufficient factual basis to challenge defendants prima facie showing that the photograph is art....
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This raises another question: when does a photographer have to have a model release signed?
Not in this case...
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