As we predicted, the NY appellate court has upheld the decision of the lower court in dismissing the claims of persons who were photographed without giving their written consent. See our original piece: One Size Does Not Fit All , for the basic facts.
In this New York case, brought under the New York Civil Rights Law Section 51, the appeals court (correctly in our opinion) held that “… works of art fall outside of the prohibitions of the privacy statute under the newsworthy and public concerns exemption”.
Essentially the court has held that notwithstanding:
- lack of consent by the subjects: and
- that some of the subjects were children, some in various states of undress; and
- the photos were shot surreptitiously from long distances; and
- the subjects were in their own homes/apartments
The thrust of the decision is that the court found that NY law exempted Mr. Svenson – fine art photographer- from the requirement of securing model releases for the images that were sold as “fine art”.
We again caution each and every one of you out there that this case is specific to New York and it’s state law. Assuming identical facts but a different venue ie Alabama, Texas, etc. there would very likely have been a different result. Additionally, whether any such images created would rise to the legal level of “child pornography” and thus exposing the photographer to potential civil and/or criminal penalties is typically determined by state law.
Note also that the appellate court specifically stated that “…news gathering methods may be tortious”. In English, certain techniques or practices can still get one sued.
Finally, this court in effect ruled that the images themselves were not somehow “so outrageous” as to lose 1st Amendment or NY Civil Rights law protection
A copy of the entire decision is here and we urge you to read it: http://law.justia.com/cases/new-york/appellate-division-first-department/2015/651826-13-12998.html