New York

The right to privacy in New York is governed solely by a misappropriation statute. N.Y. Civ. Rights Law §§ 50, 51.

Intrusion: An HBO camera crew filmed models posing naked on New York City streets for a program called “Real:Sex.” A bystander who saw a crowd gathered around the models stopped to see what was happening, was filmed as part of the crowd, and appeared on the program in introductory footage as part of the crowd and in a close-up. She had no invasion of privacy claim because she voluntarily joined a crowd gathered at a newsworthy event, and her embarrassment alone could not support an invasion claim. Gaeta v. Home Box Office, 645 N.Y.S.2d 707 (N.Y. Civ. Ct. 1996).

Consent to being photographed may be implied by a highly public lifestyle, which makes the person a subject of public interest. However, a photographer was found to have harassed Jackie Onassis by constantly tailing her, jumping about to position himself for photos, bribing doormen for a chance to get closer to her, and romancing family servants to learn her schedule. Galella v. Onassis, 487 F.2d 896 (2d Cir. 1973). Nine years later, the photographer was found in contempt of an earlier injunction against such behavior. Galella v. Onassis, 533 F.Supp. 1076 (S.D.N.Y. 1982).

A television interview with a mentally impaired criminal defendant, who was found incompetent to stand trial, was intrusive because even though the defendant consented to the interview, his doctor did not. Delan v. CBS, 445 N.Y.S.2d 898 (N.Y. App. Div. 1981), modified, 458 N.Y.S.2d 608 (N.Y. App. Div. 1983).

A television crew that was invited by a humane society investigator to accompany him could not claim that either the newsworthiness of the official’s search of a house or custom implied the consent of the homeowner for the media to enter the house. A court upheld the homeowner’s right to bring trespass charges against the media. Anderson v. WROC-TV, 441 N.Y.S.2d 220 (N.Y. Sup. Ct. 1981).

By accompanying federal agents on a search of an apartment, a television news crew may have become a “state actor,” and thus, may have violated the constitutional privacy rights of a woman and her son. Ayeni v. CBS Inc., 848 F.Supp. 362 (E.D.N.Y. 1994).

Misappropriation: A town justice sued an artist for creating an oil painting caricaturing him; the court found that the painting and its publication were artistic expressions that were entitled to First Amendment protection, and so was the publication of the justice’s name and photograph in conjunction with the caricature. Altbach v. Kulon, 754 N.Y.S.2d 709 (N.Y.A.D. 3 Dept. 2003).

A man brought an invasion of privacy claim against the co-creators of the television show “Seinfeld,” alleging that a character on the show was based on him. He did not state a valid misappropriation claim, however, because the defendants did not use his actual name (although they did use his last name), film him, or make use of his photograph in any way, except in one episode in which he willingly appeared briefly as an actor. Costanza v. Seinfeld, 719 N.Y.S.2d 29 (N.Y. App. Div. 2001).

A model brought a commercial misappropriation claim against a magazine for using her photograph to illustrate a sexual advice column about a teenage girl who had sex with multiple partners. The court held that just because someone’s likeness was used primarily or solely to increase circulation of a newsworthy article, that does not mean it was used for “trade purposes” within the meaning of the civil rights privacy law. The court further found that when a plaintiff’s picture is used to illustrate an article on a matter of public interest, there can be no liability under civil rights privacy law unless the picture has no relationship to the article with which it is packaged, even if a false impression was created. Messenger v. Gruner + Jahr Printing and Pub., 727 N.E.2d 549 (N.Y. 2000).

A man who had been held hostage alleged that a magazine’s photograph essay falsely reported that a new play portrayed his family’s experience. The U.S. Supreme Court held that the man would have to prove that the magazine published the essay with knowledge of falsity or with reckless disregard for the truth. Time, Inc. v. Hill, 385 U.S. 374 (1967).

The privacy rights of a woman who was photographed at a psychiatric facility walking with the mother implicated in a well-publicized child-beating death were not violated because the photograph was related to a news story about a matter of public interest. The court also rejected an intentional infliction of emotional distress claim against the photographer, who used a telephoto lens. Howell v. New York Post Co., 612 N.E.2d 699 (N.Y. 1993).

A doctor was awarded $75,700 for her identified depiction in the background of a picture in a medical centers promotional calendar. , 587 N.E.2d 275 (N.Y. 1991).

A couple whose family photograph illustrated a magazine article about caffeine and fertility could not sue for misappropriation, even though the photograph was taken years earlier for another purpose. The court held there was a link between the newsworthy article about fertility and the picture of a large family. , 566 N.E.2d 141 (N.Y. 1990).

A man misidentified in a photograph as the person berating the mayor had no cause of action because the picture was newsworthy and was not used for advertising purposes. , 492 N.E.2d 1228 (N.Y. 1986).

A newspaper’s publication of a photograph of a black man, taken in a public place, to illustrate an article on the upward mobility of blacks was not misappropriation because his name was not used, and the photograph was published for illustrative, not commercial, purposes. But the photographer and agency that supplied the picture to the newspaper were liable under a state misappropriation law. The law subsequently was amended to protect freelancers supplying photographs for use as news. , 433 N.Y.S.2d 164 (N.Y. App. Div. 1980), , 55 N.Y.2d 433 (1982), , 459 U.S. 1146 (1983).

The use of an athlete’s photograph was found merely incidental to a magazine advertisement because the magazine carried accurate articles about the athlete. , 48 A.D.2d 487 (N.Y. App. Div. 1975), , 352 N.E.2d 584 (N.Y. 1976).

A magazine cover depicting a spectator watching a parade was not misappropriation because the parade was a newsworthy event. , 267 N.E.2d 256 (N.Y. 1971).

A newspapers use of a reproduced cover featuring an activist to solicit subscriptions did not misappropriate the activist’s image. , 524 N.Y.S.2d 186 (N.Y. App. Div.), , 529 N.E.2d 425 (N.Y. 1988).

An episode of Howard Sterns’ television show included a skit in which a married woman gave Stern a massage, and her husband’s photograph appeared during the broadcast. The husband’s misappropriation claim was dismissed because the newsworthiness exception extends to comedic performances., 19 Med. L. Rptr. 1769 (N.Y. Sup. Ct. 1991), , 592 N.Y.S.2d 581 (N.Y. App. Div. 1992).

A newspaper illustrated an article about young drug dealers with a drawing that a freelance artist based on posed photographs of youths not involved in the drug trade; no misappropriation claim existed because there was no showing that the newspaper was at fault. , 501 N.Y.S.2d 971 (N.Y. App. Term 1986).

The publication of a photograph of nude sunbathers in a guide book on nude beaches was not misappropriation because the photograph was taken with the consent of the sunbathers and was used to illustrate a book about a matter of public interest. , 496 N.Y.S.2d 219 (N.Y. App. Div. 1985).

A man who alleged his photograph appeared in a magazine for homosexuals, with false statements attributed to him, stated both misappropriation and libel claims. , 470 N.Y.S.2d 196 (N.Y. App. Div. 1983).

A mentally disabled patient who appeared briefly in a documentary about institutionalization had no misappropriation claim regardless of whether there was valid consent because the appearance was incidental, and the documentary was of public interest. , 458 N.Y.S.2d 608 (N.Y. App. Div. 1983).

The female boxer who alleged that another woman was identified as her in magazine stated a misappropriation claim because, although the nude picture of her would be newsworthy, the picture of a woman misidentified as her would not be newsworthy. To prevail, the boxer would be required to prove knowledge of falsity or reckless disregard for the truth. , 457 N.Y.S.2d 308 (N.Y. App. Div. 1982).

Displaying a woman’s photograph during a talk show did not violate the misappropriation statute because the broadcast about relationships between mothers and daughters was of public interest. , 21 Med. L. Rptr. 1959 (N.Y. Sup. Ct. 1993).

The photograph of a “disappeared” agent and his wife did not misappropriate her image because the photograph had a “real relationship” to an article of public interest. , 15 Med. L. Rptr. 1623 (N.Y. Sup. Ct. 1988).

The use of a boys photograph without consent in a book was not actionable because the public had an interest in the subject matter, a child’s initiation into an education system through enrollment in a preschool program. , 15 Med. L. Rptr. 1367 (N.Y. Sup. Ct. 1987).

A female police officer depicted during a television news segment about premenstrual syndrome had no misappropriation claim because the use was incidental and introduced a report of public interest. , 9 Med. L. Rptr. 2111 (N.Y. Sup. Ct. 1983).

A newspaper that published a photograph of men ogling a woman with an article about a feminist rally later republished the photograph to illustrate an article about psychological rape. The men had no misappropriation claim regarding the second article because the photograph depicted a precise activity discussed in a report of public interest. , 5 Med. L. Rptr. 1799 (N.Y. Sup. Ct. 1979).

Babe Ruth’s heirs had no claim over the use of Ruths likeness in a calendar because the statutory right to privacy does not survive death, and New York does not recognize a common-law right to privacy. , 894 F.2d 579 (2d Cir. 1990).

Republication of a magazine cover in an advertisement for subscriptions was found to be an incidental use and not a misappropriation. , 789 F.2d 164 (2d Cir.), , 479 U.S. 932 (1986).

A woman allegedly depicted as a prostitute in the opening credits of the film had no misappropriation claim because her appearance was fleeting and incidental. The court also held that the mere publication of private, personal facts did not give rise to an intentional infliction of emotional distress claim. , 19 Med. L. Rptr. 1057 (S.D.N.Y.1991).

An actress who appeared nude in a film did not have a misappropriation claim over a magazine’s use of an image taken from the film because the image was newsworthy. , 498 F. Supp. 401 (S.D.N.Y. 1980).

A classical guitarist was entitled to relief under the misappropriation statute when a record company put a picture of another man, dressed in a tuxedo jacket but without trousers, on his album jacket. , 3 Med. L. Rptr. 2324 (S.D.N.Y. 1978).