We’ve all had our photograph taken, usually knowingly, but sometimes unknowingly. But imagine if you discovered a photograph of yourself on a billboard advertising a debt-consolidation company, or if you discovered a photograph of yourself in an art display in Times Square taken while you were sunbathing in your swimsuit at the beach. Under what circumstances can you restrict the use of your photograph, and under what circumstances are you entitled to financial compensation for its use?
You might be surprised to learn that there is no common law right to privacy in the State of New York. Instead, a limited statutory right to privacy is created by Civil Rights Law §§ 50 and 51, which set forth specific instances in which the use of someone’s image without their consent is prohibited, as well as the penalties that may be imposed for violations. Determining whether there has been a violation begins with a review of the specific limitations placed on the rights to images and their uses as described in § 50 of the Civil Rights Law.
Civil Rights Law § 50. Right of Privacy
“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor. “
Civil Rights Law § 50 is fairly self-explanatory, in that it makes it a criminal offense to use the name, portrait or picture of someone for advertising or trade purposes without first obtaining that person’s written consent. The key language here is “advertising or trade purposes.” If someone is displaying your image for some other purpose, it is probably not a violation of the statute, and you are not eligible for relief under §§ 50 or 51 of the Civil Rights Law (for a discussion of what constitutes advertising or trade purposes with respect to displaying an image, you can read our article on that topic next week).
There are certain obvious instances that would qualify as “advertising or trade purposes,” such as the use of your image to sell products on a billboard or in a newspaper advertisement without your consent. This type of clear violation would make you eligible to bring an action for damages and to seek an injunction under Civil Rights Law § 51, which is discussed further below.
However, most disputes involve situations in which the violation may not be so evident. What if you paid to enter a museum, only to find pictures of yourself hanging on the walls, and collages of your image on various mugs and gifts available for sale in the museum’s gift shop? In 2000, this very scenario happened to Charlotte Dabney at the Whitney Museum of American Art.
A photographer had taken a picture of her years before, and an artist used her image, without her knowledge or consent, to create artistic collages. Dabney sued the museum and the artist, and lost. A Federal District Court Judge held that the use of a person’s image in a work of art is a constitutionally protected form of free speech exempt from Civil Rights Law §§ 50 and 51. In other words, regardless of whether you have consent, you can use someone’s name, portrait or picture in a work of art (a discussion of what qualifies as a work of art will be the focus of a future article).
Just as §§ 50 and 51 of the Civil Rights Law place no restrictions on works of art, they also place no restrictions on news or editorial publications. A newspaper, magazine or editorial website can post a picture of you to help sell its publications without your consent, as long as a reasonable relationship exists between your image and the subject matter contained in the article. So, for example, a reporter for a newspaper can take a picture of you on the beach in your bathing suit, without your consent, and print it on the front cover of the newspaper, as long as the story accompanying it reasonably relates to your image.
Sometimes there are circumstances in which the publisher believes he or she has permission to publish your image, but is mistaken. In these circumstances, the publisher of the image can still be held liable. If someone gives verbal permission for his of her image to be displayed for advertising or trade purposes, for example, the publisher of the image can be held liable under Civil Rights Law §§ 50 and 51 if that person later changes his or her mind. This is because § 50 of the Civil Rights Law requires that consent must be given in writing if an image is used for advertising or trade purposes. This is one legal quagmire that a well written and executed model release form would avoid. However, it should be noted that prior oral consent often serves to reduce any award of punitive damages if a model release form was not used.
Even if written consent is given, the publisher must also ensure that the photograph is published in a manner outlined in the contract that gives consent. For example, if a person signs a model release granting use of his or her image for advertising purposes for a period of one year, and the photograph is published after the expiration of that year, the publisher can be held liable under Civil Rights Law §§ 50 and 51.
Even in situations where a publisher legitimately purchases a photograph from a stock photography company to use specifically for an ad, the publisher can be held liable if the stock photography company failed to properly acquire written consent from the person whose image is displayed. Essentially, if someone knowingly uses someone else’s name, portrait, or picture for advertising or trade purposes, even if they are mistaken as to consent or use, they can still be held liable.
Once liability is established, Civil Rights Law § 51 provides the legal authority to maintain an equitable action for an injunction to remove the image, and to pursue punitive damages against the person or company who used the name, portrait or picture without consent.
New York Civil Rights Law § 51. Action for Injunction and for Damages
“Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. But nothing contained in this article shall be so construed as to prevent any person, firm or corporation from selling or otherwise transferring any material containing such name, portrait, picture or voice in whatever medium to any user of such name, portrait, picture or voice, or to any third party for sale or transfer directly or indirectly to such a user, for use in a manner lawful under this article; nothing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; and nothing contained in this article shall be so construed as to prevent any person, firm or corporation from using the name, portrait, picture or voice of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith; or from using the name, portrait, picture or voice of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith. Nothing contained in this section shall be construed to prohibit the copyright owner of a sound recording from disposing of, dealing in, licensing or selling that sound recording to any party, if the right to dispose of, deal in, license or sell such sound recording has been conferred by contract or other written document by such living person or the holder of such right. Nothing contained in the foregoing sentence shall be deemed to abrogate or otherwise limit any rights or remedies otherwise conferred by federal law or state law.”
It’s interesting to note that Civil Rights Law § 51 provides for certain exceptions to liability that Civil Rights Law § 50 does not. For example, anyone “practicing the profession of photography” is allowed to display photographs they have taken of others for trade purposes in furtherance of their photography business, regardless of whether a signed release was obtained. However, if the subject of a photograph notifies the photographer in writing that he or she does not want the image to be displayed in connection with the photographer’s business, and a release has not been obtained, the photographer has a duty to immediately cease publication of the image. If the photographer continues to display that person’s image, he or she may be liable for damages under § 51 of the Civil Rights Law.
Civil Rights Law § 51 provides that a jury must determine whether damages will be awarded, and must also determine the amount of damages, if any. Additionally, there is a one-year statute of limitations for Civil Rights Law §§ 50 and 51 claims. The time to file a claim runs from the date of the most recent violation of the statute, which is usually the date the offending material was first published.