Nussenzweig v. DiCorcia is a New York County, New York Supreme Court case allowing the display, publication and sale (at least in limited editions) of “street photographs” without the consent of the subjects of those photographs.
The photograph at issue was taken by diCorcia on the streets of Times Square in Manhattan. DiCorcia attached an elaborate system of strobe lights to construction scaffolding, and aimed them and his camera toward a fixed point on the sidewalk. From 20 feet away, he operated the camera’s shutter and the lights, collecting images of passers-by – including Nussenzweig – without their knowledge. Nussenzweig’s photograph was exhibited at the Pace/MacGill Gallery from September 6, 2001 through October 13, 2001, and published in a book entitled Heads, co-published by Pace/MacGill. DiCorcia created ten original edition prints of the photograph, and no more will ever be printed. The entire edition was sold for $US 20,000-30,000 each.
In 2005, Nussenzweig learned of the photograph and filed a lawsuit, claiming that diCorcia and Pace/MacGill had violated his privacy rights under New York law. Specifically, he claimed that their conduct violated Sections 50 and 51 of New York’s Civil Rights Law, which prohibits the use of a person’s likeness, without consent, “for advertising or for purposes of trade.” Pointing to the fact that diCorcia and Pace/MacGill sold and published the photograph of Nussenzweig for a profit, Nussenzweig argued that such uses constituted “purposes of trade.”
DiCorcia and Pace/MacGill argued that the uses at issue were means of artistic expression, and thus were protected speech under the 1st Amendment to the U.S. Constitution and analogous provisions of New York’s Constitution. They also argued that Nussenzweig’s lawsuit was barred by the applicable statute of limitations, as it was filed more than one year after the photograph was first placed on display and for sale.
In a decision dated February 8, 2006, the trial court ruled in favor of diCorcia and Pace/MacGill, and dismissed Nussenzweig’s lawsuit. It ruled that the defendants’ uses of Nussenzweig’s likeness were not “commercial,” but rather were forms of artistic expression protected by the 1st Amendment. Accordingly, the court held that Nussenzweig could not block the publication, display or sale of the photograph containing his likeness, and that he was entitled to no money from the photographer, the gallery or the book publisher. The court also dismissed the lawsuit as untimely, holding that Nussenzweig had only one year to file suit after the picture was first “published.”
In March 2007, the dismissal was affirmed by New York’s First Appellate Division. All five justices of the appellate court agreed that Nussenzweig’s complaint was barred by the statute of limitations. Two of the justices wrote a separate opinion expressly upholding the trial court’s decision on constitutional grounds, as well.
Nussenzweig has been given leave to appeal the case to New York’s highest court, the Court of Appeals. Argument before the Court of Appeals is currently scheduled for October 2007.