The New York Times recently ran a piece on the dispute between photographer Philip-Lorca diCorcia and the subject of one of his photographs, Erno Nussenzweig. The photograph in question, Head #13, was one of a series taken in Times Square and exhibited at the Pace/MacGill Gallery. NY State law prohibits the unconsented use of identity within the State of New York 'for advertising purposes or for the purposes of trade.'" Mr. Nussenzweig made the argument that since the artist and his gallery were offering the photographs for sale, this consitituted trade. The judge disagreed. His decision is a good treatise on the case law regarding what is art and what is protected by the first amendment and includes a choice quote: "first amendment protection of art is not limited to only starving artists."
Nussenzweig also made the argument that his religion prohibited the use of "graven images" but the judge found that the Constitution's protection of freedom of religion only applies to actions of the government:
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. Simmon-Harris, 122 SCt 2460 (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: Quarnes v. Peterson, 728 F2d 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 AD2d 196 (4th dept.) the court held that the parents of [*8]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 NY2d at 442