Photographer Philip-Lorca DiCorcia photographed people in New York’s Time Square to include in his HEADS collection. The collection included photographs of seventeen people, none of whom gave DiCorcia consent to use their likeness. One of the photographs is of Erno Nussenzweig, a Hasidic Jew who sued DiCorcia and the Pace/Macgill gallery for violation of privacy laws in the use of his likeness for trade purposes without his consent.
Failure to State a Cause of Action:
New York Civil Rights Laws §50 and §51, prohibits the use of one’s likeness “for advertising purposes or for the purposes of trade” without consent. DiCorcia claimed that art is exempted from New York’s privacy laws because it is protected as freedom of expression. Although DiCorcia sold some of the photographs featured in the collection, the photographs are still considered art and exempt from the privacy laws. The court upheld the constitutional exceptions to privacy law despite Nussenzweig’s claim that the photograph violated his religious beliefs.
Statute of Limitation:
The department of the New York Supreme Court that tried this matter follows single publication rule which maintains that the statute of limitations for a privacy claim begins to run after the first unauthorized use. The statute of limitations was not extended despite the plaintiff’s claim that he did not find out about the photograph until after the one year statute of limitation lapsed. Under the single publication rule, the one year statute of limitations had expired by the time Nussenzweig brought this action.
The single publication rule could be inaccurate if publication increases over time because the determination of whether something is art and exempt from privacy laws is often determined by how many times the work is published. Some courts have held that republication enables the statute of limitations to reset. Because the photograph was not republished at any point during the one year period of statute of limitations, the republication rule does not apply to this situation.