2006 N.Y. Slip Op. 50171(U)

Erno NUSSENZWEIG, Plaintiff, v. Philip-Lorca DICORCIA, Pace/Macgill, Inc., and others denominated as John or Jane Does said being, persons and entities who have used photographs, pictures or reproductions of same, of plaintiff, for commercial purposes, advertising purposes or trade purposes, throughout the State of New York and elsewhere, Defendants

Supreme Court, New York County, New York

No. 108446/05

February 8, 2006

Judith J. Gische, J.

The underlying action, brought under Civil Rights Laws §§ 50 and 51, concerns defendants' use of a photograph of plaintiff, concededly without his consent. There are presently two motions and a cross-motion before the court, all of which have been consolidated for consideration in this decision. The first motion (sequence number 001), brought by defendant Philip-Lorca DiCorcia ("DiCorcia"), is for summary judgment seeking dismissal of the amended complaint. Co-defendant Pace MacGill, Inc. ("Pace") has cross-moved for identical relief. The second motion (sequence number 002), brought by plaintiff, seeks to further amend the amended complaint. It also seeks to dismiss defendant DiCorcia's first affirmative defense that the complaint fails to state a cause of action.

1. Motion to Amend the Amended Complaint

Since a mandatory predicate to summary judgment is the joinder of issue CPLR § 3212, the request to amend the complaint must necessarily be considered before any of the other requested relief.

In the amended complaint plaintiff sets forth four causes of action respectively for: [1] an accounting and money damages; [2] compensatory damages; [3] exemplary damages and [4] a permanent injunction. The proposed second amended complaint sets forth the exact same causes of action and seeks the exact same relief. All of the asserted and proposed causes of action are premised upon alleged violations of Civil Rights Laws §§ 50 and 51. Indeed, in New York State any cause of action based upon the unauthorized use of ones likeness must be brought under the Civil Rights Law, because there is no common law right of action. Howell v. New York Post Co., 81 N.Y.2d 115, 122-123, 612 N.E.2d 699, 596 N.Y.S.2d 350 (1993); Costanza v. Seinfeld, 279 A.D.2d 255, 719 N.Y.S.2d 29 (1st dept. 2001).

The proposed second amended complaint differs from the amended complaint primarily because plaintiff makes additional factual allegations that he is a Hasidic Jew with deeply held religious beliefs that are violated by defendants' use of the photograph. These factual claims and their legal ramification has also been raised, and is being considered, in opposition to the summary judgment motions before the court.

CPLR § 3025 (b) provides that leave to amend shall be freely given upon such terms as may be just. The decision whether to grant such application still rests with the sound discretion of the court. Omni Group Farms, Inc. v. County of Cayuga, 199 A.D.2d 1033, 606 N.Y.S.2d 488 (4th dept. 1993). While a predominant consideration is prejudice to the other side (Ross v. Ross, 143 A.D.2d 429, 532 N.Y.S.2d 573 [2nd dept. 1988]), the courts also consider whether the amendment will serve any legitimate purpose. See: GMAC Mortgages Corp. v. Tuck, 299 A.D.2d 315, 750 N.Y.S.2d 93 (2nd dept. 2002); USF & G v. Maggiore, 299 A.D.2d 341, 749 N.Y.S.2d 555 (2nd dept. 2002).

Plaintiff's motion to amend is denied because the proposed second amended complaint adds nothing new to the case. It does not change any of the legal theories he relies upon, nor does it plead any new causes of action. It seeks mainly to assert facts that are already being considered by the court in connection with the existing complaint. There is simply no purpose to permitting the amendment.

Defendants would be prejudiced were the amendment allowed because it would render the pending motions for summary judgment premature. The motions for summary judgment were brought before plaintiff sought leave to amend the amended complaint. By statute, if a pleading that otherwise requires a response is amended, then a new answer must be interposed. CPLR § 3025 (d). If defendants are required to interpose an answer to a new complaint, then issue would not be joined and summary judgment could not be considered. CPLR § 3212. Since all of the additional facts alleged in the proposed second amended complaint can and will be considered by the court in connection with the pending motions for summary judgment, there is no simply no reason to forestall consideration of the motions for summary judgment in order to permit additional pleadings. See: Altbach v. Kulon, 302 A.D.2d 655, 754 N.Y.S.2d 709 (3rd dept. 2003) Appellate Court found that decision on 1st summary judgment motion could not have been addressed at the same time claim was added, therefore 2nd summary judgment motion was not duplicative of first.

As part of motion sequence number 002, plaintiff also seeks to strike defendants' first affirmative defense of "failure to state a cause of action". Defendants object only to the extent that they believe plaintiff is using this motion to amplify its record and get the "last word" on the summary judgment motions. Defendants concede that if their motion is denied on the merits, this affirmative defense will necessarily be stricken. Consequently, this branch of defendants' motion is not per se improper, and it is considered on its merits as further reflected later in this decision.
2. Summary Judgment to Dismiss

Defendants claim two basis for summary judgment dismissing the complaint. They claim that the action is barred by the applicable statute of limitations. They also claim that, in any event, the challenged photograph is "art" and therefore exempt from the application of New York State Privacy laws because it is protected free speech under the United States and New York State Constitutions.

As the party moving for summary judgment, defendants bear the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle them to judgment in their favor, without the need for a trial. CPLR § 3212; Winegrad v. NYU Medical Center, 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). Only if the proponent meets this burden, will it then shift to the party opposing summary judgment, who must then establish the existence of material issues of fact that would require a trial of this action. Zuckerman v. City of New York, supra. When issues of law only are raised in connect with a motion for summary judgment, the court may and should resolve them, without the need for a testimonial hearing. See: Hindes v. Weisz, 303 A.D.2d 459, 756 N.Y.S.2d 601 (2nd dept. 2003).

On this motion, certain facts are not in dispute, or are conceded for purposes of the motion only.

Defendant DiCorcia is a professional photographer for over 25 years. His body of work has drawn international artistic acclaim and has been exhibited in fine art museums around the world, including but not limited to, the Museum of Modern Art (New York); The Whitney Museum of Art (New York), the Museo National Centrio de Arte Reina Sofia (Madrid) and Art Space Gizo (Tokyo).

Defendant Pace is a photographic and picture gallery that exhibits and sells photographic art, including the work of defendant DiCorcia. It considers itself one of the nation's leading art galleries specializing in art photography.  
Between 1999 and 2001 DiCorcia created a series of photographs, taken on the streets of New York, which he entitled "HEADS". In making those images, DiCorcia took candid, un-staged images of people in Times Square as they passed by a particular location. He used special lighting at the exact location where the photographs were taken. He later edited and selected the pictures to arrive at the final 17 photographs he included in the "HEADS" project. DiCorcia did not seek or obtain consent to photograph any of the people whose likenesses were included in this collection.

One of the photographs that is part of the project is of the plaintiff, Erno Nussenzweig. The photograph as presented is unmistakedly and readily identifiable as that of plaintiff. Neither of the defendants ever obtained plaintiff's consent to take, use, sell, exhibit or publish the photograph of plaintiff.

DiCorcia admits to creating 10 edition prints of the photograph of plaintiff, plus 3 artist's proofs. He claims that he will create no more original prints of the photograph.

The HEADS collection, including the photograph of plaintiff, was exhibited at the Pace Gallery from September 6, 2001 through October 13, 2001. A catalogue was published to coincide with the exhibition and the catalogue contained reproductions of all the photographs in the HEADS collection, including the photograph of plaintiff. According to defendant, a "substantial" number of catalogues were distributed to the public during the period of September through October 2001.

The Pace Gallery exhibition was open to the public and was advertised and reviewed in local and national media. Defendants provided reproduced reviews from such publications as The New York Times, Time Out New York and The Village Voice, which are periodicals of general circulation in New York City. Defendants also reproduced reviews of the exhibition in art periodicals of national circulation. In two reviews, W Magazine's September 2001 edition, and Art Forum Internationals' summer 2001 edition, the photograph of plaintiff was reproduced.

Although plaintiff denies defendants' claim that the exhibition was open to the public and advertised and reviewed in local and national media, he has not produced any evidence in support of his position. Shadowy semblances of issues are not sufficient to oppose summary judgment. American Savings Bank, FSB v. Imperato, 159 A.D.2d 444, 553 N.Y.S.2d 126 (1st dept. 1990). Upon examination, plaintiff's claim is really that the print media was not generally circulated in the orthodox Jewish community, of which he is a part. This supports his position that he did not know about the photograph until sometime in 2005.

Pace sold all 10 edition prints of the photograph, which were priced between $ 20,000 and $ 30,000 a piece. Defendants claim that the last print was sold in March 2003. Plaintiff claims, however, that shortly before he commenced this action (in April 2005) the photograph of him was still being offered for sale at Pace.

Plaintiff is an Orthodox Hasidic Jew and a member of the Klausenberg Sect, a sect that was almost completely destroyed during the Holocaust. He holds a deep religious conviction that the use of his image for commercial and public purposes violates his religion. In particular he believes that defendants' use of his image violates the second commandment prohibition against graven images.

When plaintiff first discovered the photograph of his image, he immediately contacted defendants regarding the use. DiCorcia responded that the photographs were not being used for either "advertising" or "trade" and that he believed he was within his legal rights to continue use the photograph of plaintiff in the manner he had been. This action ensued.

A. The Statute of Limitations

There is no dispute that a one year statute of limitations applies to actions brought under Civil Rights Laws §§ 50 and 51. CPLR § 215. The dispute between the parties is over when the cause of action begins to accrue. Defendants argue that the statute of limitations accrues from the first publication of the subject material, which in this case, was in 2001. Since this action was brought more than one year after that time, they argue that it is time barred. Alternatively, defendants argue that even using the last publication date as the date of accrual (e.g. 2003, as defendant claim), the complaint is still time barred.

Plaintiff raises two arguments in opposition. He argues that the statute of limitation begins to run as of the date of the last publication. Alternatively, he argues that the statute of limitations begins to run from the date of discovery of the wrong.

Plaintiff claims that there have been multiple republications of the photograph, each triggering a new statute of limitations. Relying primarily upon the "continuous wrong" doctrine explained by the court in Sporn v. MCA Records, Inc., 58 N.Y.2d 482, 448 N.E.2d 1324, 462 N.Y.S.2d 413 (1983), plaintiff argues that the statute of limitations runs from the last wrong. Thus plaintiff claims that since his attorney confirmed the availability of plaintiffs photograph for sale within the past year, he is within the one year statute of limitations.

In this department, the case law establishes that the statute of limitations on privacy claims begins to run from the first unauthorized use. Costanza v. Seinfeld, 279 A.D.2d 255, 719 N.Y.S.2d 29 (1st dept. 2001). See also: Cuccioli v. Jekyll & Hyde, 150 F. Supp. 2d 566 (SDNY 2001); Zoll v. Ruder Finn, Inc., 2004 U.S. Dist. LEXIS 144, 2004 WL 42260 (SDNY 2004) (NOR). This rule, commonly referred to as the "single publication rule" [see: Gregoire v. G. P. Putnam’s Sons, 298 NY 119, 81 N.E.2d 45 (1948)], was meant to stave off the multiplicity of suits which could arise from mass publication and the attendant problems of endless tolling of statute of limitations. Cuccioli v. Jekyll & Hyde, supra. The continuous wrong doctrine cannot revive an otherwise untimely privacy action. Costanza v. Seinfeld, supra.

While the single publication rule is the law of this department, it is not universally followed in other departments. Russo v. Huntington Town House, Inc., 184 A.D.2d 627, 584 N.Y.S.2d 883 (2nd dept. 1992). Because the issue of whether something is exempted art under New York's Privacy laws in some respects depends on the number of times something is published (see: Hoepker v. Kruger, 200 F. Supp. 2d 340 SDNY 2000), the application of a single publication rule may produce anomalous results in circumstances like those at bar, where the number of publications can increase over a period of time.

On the other hand, the courts have recognized that "republication" may set the statute of limitations running a new. See: Rinaldi v. Viking Penguin, Inc., 73 A.D.2d 43, 425 N.Y.S.2d 101 (1st dept. 1980) affd 52 N.Y.2d 422, 420 N.E.2d 377, 438 N.Y.S.2d 496 (1981). In this regard "republication" is extraordinarily difficult to establish and at a minimum requires some alteration of the subject matter or marketing to an entirely different audience. See: Ferber v. Citicorp Mtg., Inc., 1996 U.S. Dist. LEXIS 1210, 1996 WL 46874 (SDNY 1996) (NOR).

The first publication of plaintiff's photograph was in 2001. Under the single publication rule, the one year statute of limitations has expired. The facts presented do not support any conclusion that the photograph was republished within the one year period immediately preceding this action. The court concludes, therefore, that this action is barred by the statute of limitations under existing appellate authority of this department.

Plaintiff's argument that the statute of limitations begins to run from the date he discovered that the photograph was published is also rejected. In general, the decision regarding whether the accrual date of a particular tort should run from the date it is discovered is a matter for the legislature to determine. See: CPLR §§ 213.8; 214 (c); Rothstein v. Tennessee Gas Pipeline Co., 204 A.D.2d 39, 616 N.Y.S.2d 902 (2nd dept. 1994) affd 87 N.Y.2d 90, 661 N.E.2d 146, 637 N.Y.S.2d 674 (1995). Judicial extensions of date of discovery doctrines are usually rejected. Martzloff v. City of New York, 238 A.D.2d 115, 655 N.Y.S.2d 43 (1st dept. 1997). The legislature has not adopted any statutory provision that permits the court to calculate the running of the limitations period from the time the unauthorized use is first discovered. In any event, given that the photograph was in the public arena since 2001, the fact that plaintiff was personally unaware of the photograph is not a basis to give him an enlargened statute of limitations.

Since however, there is a split of authority among the departments regarding the issue of the accrual of the statute of limitations, the issue is still open for interpretation by the Court of Appeals. The court will, therefore, go on to also consider the merits of the parties' arguments.

B. Failure to State a Cause of Action

Civil Rights Laws §§ 50 and 51 prohibit the unconsented-to use of identity within the State of New York "for advertising purposes or for the purposes of trade." The rights contained in these statutes are the exclusive remedies allowed in New York State for an unauthorized use of one's likeness. Howell v. Post, 81 N.Y.2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350 (1993). Right of privacy laws are intended to defend the average person from unwanted public exposure and the potential emotional damage thereby inflected. Weisfogel, Fine Arts v. Uncertain Protection: The New York Right of Privacy Statute and the First Amendment, 20 Columbia – VLA J.L. & Arts 91 (1995). New York's Privacy laws were enacted to strike a balance between the right to privacy, on the one hand and the right to first amendment free speech on the other. Arrington v. New York Times, 55 N.Y.2d 433, 434 N.E.2d 1319, 449 N.Y.S.2d 941 (1982). The elements of a privacy claim under Civil Rights Laws §§ 50 and 51 are: (1) use of plaintiff's name, portrait, picture or voice, (2) for advertising purposes or for trade, (3) without consent, and (4) within the State of New York. Hoepker v. Kruger, 200 F. Supp. 2d 340 (SDNY 2002).

Defendants concede facts that establish elements 1, 3 and 4 of a privacy cause of action. They claim, however, that as a matter of law, the photograph of plaintiff was not used for "advertising" or "trade" purposes. They claim that the photograph of plaintiff is "art" that is not expressly within the privacy protections under New York's statute and further, that art cannot constitutionally be within the protection of New York's privacy laws because it is constitutionally protected speech. U.S.C.A. Const. Amend I, NY Constitution, article I § 8.  

Plaintiff denies that the photograph is art. He argues that defendants' intended purpose was to sell the photograph and reproductions thereof. Plaintiff claims the sale and/or intended sale of the photograph constitutes a commercial use that is actionable under the privacy laws. He points to the actual sales made to support his argument and also to the fact that the exhibition was in a venue operating for profit (e.g. an art gallery) and not a museum.

Plaintiff further claims that no discovery has taken place in this case and that he needs to find out exactly the extent to which defendants are pursuing a commercial use of his likeness.

Plaintiff urges that privacy cases require a balancing of competing constitutional interests, and that this can only be accomplished after trial. Plaintiff argues that freedom of expression is not an absolute guaranty, but requires a trier of fact to weigh plaintiff's constitutional rights to privacy and his right to practice his religion against defendants competing interests.

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 N.Y.2d 436, 727 N.E.2d 549, 706 N.Y.S.2d 52 (2000); Finger v. Omni Publs. Int., 77 N.Y.2d 138, 566 N.E.2d 141, 564 N.Y.S.2d 1014 (1990); Arrington v. New York Times, 55 N.Y.2d 433, 434 N.E.2d 1319, 449 N.Y.S.2d 941 (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 A.D.2d 655, 754 N.Y.S.2d 709 (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 A.D.2d 47, 524 N.Y.S.2d 186 (1st dept. 1988) lv to app den 72 N.Y.2d 808, 529 N.E.2d 425, 533 N.Y.S.2d 57 (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 F.2d 1188 (9th Circuit) cert den 493 U.S. 812, 110 S. Ct. 59, 107 L. Ed. 2d 26 (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 A.D.2d 655, 754 N.Y.S.2d 709 (3rd dept. 2003); Simeonov v. Tiegs, 159 Misc 2d 54, 602 N.Y.S.2d 1014 (NY Civ. Ct 1993); Hoepker v. Kruger, 200 F. Supp. 2d 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 III Productions, Inc. v. Gary Saderup, Inc., 25 Cal 4th 387, 106 Cal. Rptr. 2d 126, 21 P.3d 797 (2001) cert den 534 U.S. 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 S.E.2d 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 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. De Gregorio v. CBS, Inc., 123 Misc 2d 491, 473 N.Y.S.2d 922 (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.

Plaintiff's argument that summary judgment is premature because it has not yet had discovery is also rejected. Plaintiff speculates that if he was given the opportunity to obtain discovery, he might be able to show that defendants used the photograph for trade. Sheer speculation that discovery might yield useful information is not sufficient to defeat summary judgment. Lewis v. Safety Disposal System of Pa, Inc., 12 AD3d 324, 786 N.Y.S.2d 146 (1st dept. 2004).

Plaintiff argues that the use of the photograph interferes with his constitutional right to practice his religion. The free exercise clause, however, restricts state action. Zelman v. Simmons-Harris, 536 U.S. 639, 122 S. Ct. 2460, 153 L. Ed. 2d 604 (2002). There is no state action complained of in this case, only the private actions of defendants. Thus, this situation is distinguishable from circumstances where the government required a photograph that was claimed to be a violation of a fundamental religions belief. See: Quaring v. Peterson, 728 F.2d 1121 (CA 9th Cir. 1984). The issues raised by plaintiff do rise to constitutional consideration.

Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive. The sincerity of his beliefs is not questioned by defendants or this court. While sensitive to plaintiff's distress, it is not redressable in the courts of civil law. In this regard, the courts have uniformly upheld Constitutional 1st Amendment protections, even in the face of a deeply offensive use of someone's likeness. Thus, in Arrington, supra, the Court of Appeals recognized that an African American man's image was being used in a manner that conveyed viewpoints that were offensive to him. It nonetheless found the use of the image protected. In Costlow v. Cusimano, 34 A.D.2d 196, 311 N.Y.S.2d 92 (4th dept.) the court held that the parents of  children who died by suffocation when they trapped themselves in a refrigerator could not assert a privacy claim to prevent defendant from publishing an article with photographs of the premises and the deceased children, because the article was "newsworthy". These examples illustrate the extent to which the constitutional exceptions to privacy will be upheld, notwithstanding that the speech or art may have unintended devastating consequences on the subject, or may even be repugnant. They are, as the Court of Appeals recognized in Arrington, the price every person must be prepared to pay for in a society in which information and opinion flow freely. 55 N.Y.2d at 442.

The court, therefore, finds that plaintiff has failed to state a cause of action under New York Civil Rights Laws §§ 50 and 51. Summary judgment is granted on such basis and the motion to strike the affirmative defense is denied.


In accordance with the aforementioned,

It is hereby:

ORDERED that defendant, Philip-Lorca DiCorcia's motion for summary judgment dismissing the complaint is granted in its entirety; and it is further

ORDERED that defendant Pace-MacGill's cross motion for summary judgment dismissing the complaint is granted in its entirety; and it is further

ORDERED that plaintiff's motion to amend the complaint and strike defendant's DiCorcia's affirmative defense is denied; and it is further

ORDERED that the clerk is directed to enter a judgment in favor of defendants dismissing the complaint, with prejudice.

Any relief request not expressly granted herein is denied.

This shall constitute the decision and order of the Court.

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superseded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome here.