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Foster v. Svenson

Sup Ct, New York County

August 1, 2013

MARTHA G. FOSTER and MATTHEW FOSTER, Individually and on behalf of their minor children, DELANEY FOSTER and JAMES FOSTER, Plaintiffs,
ARNE SVENSON, Defendant. Index No. 651826/2013 Mot. Seq.: 001

Unpublished Opinion



Defendant is a photographer, who, using a telephoto lens and shooting from his own apartment in Manhattan, took photographs of the interiors of apartments in a neighboring building. The neighboring building boasted a mostly glass facade, with large windows into each unit. The photographs were taken over a period of time and included still life photographs as well as photographs of people living in those apartments. Some photographs included children. The photographs were assembled into an exhibit entitled "The Neighbors." Defendant did not have permission to photograph the "neighbors."

Plaintiffs move by Order to Show Cause for a preliminary injunction, seeking to prevent the dissemination and display of certain photographs. Further, plaintiffs seek to prevent current dissemination, display or sale in any and all media of such photographs and images. Specifically, Plaintiffs seek "an immediate end to the dissemination of two photographs showing the Fosters' children's faces and partially-clad bodies."

Plaintiffs became aware that they and their minor children were being photographed by way of an article that appeared in a local newspaper. Images of their children appeared in the paper, and an article attributed the following explanation to Defendant: "The Neighbors don't know they are being photographed; I carefully shoot from the shadows of my home into theirs." More particularly, a photograph of one of the Foster children, shows the child's face, and is "clearly identifiable." This image has appeared on television programs and in the media featuring Defendant. Plaintiffs claim the location of the Fosters' apartment has been made known as well, which Plaintiffs allege compromises the security and safety of the children.

Plaintiffs never consented to the use of these images of their children, and did not want them used, disseminated or sold. Plaintiffs engaged an attorney and demanded, in writing, that Defendant stop showing the photographs of the children. Thereafter, Plaintiffs filed and served the instant action and application for a Preliminary Injunction, pursuant to New York's Civil Rights Law §§ 50 and 51 and CPLR §§ 6311 and 6313.

New York's Civil Rights Law §50 states, in pertinent part:
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.
New York's Civil Rights Law §51 states, in pertinent part:
Any person whose name, portrait, picture or voice is used within this state ... for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person ... so using his name, portrait, picture or voice, to prevent and restrain the use thereof. . . But. . . nothing contained in this article shall be so construed as to prevent any person, firm or corporations 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.

The Court of Appeals has stated basic principles concerning the right of privacy.

First, recognizing the legislature's pointed objective in enacting sections 50 and 51, we have underscored that the statute is to be narrowly construed and "strictly limited to non consensual commercial appropriations of the name, portrait or picture of a living person." . . . Second, we have made clear that these sections do not apply to reports of newsworthy events or matters of public interest. . . This is because a newsworthy article is not deemed produced for the purposes of advertising or trade. Additionally, these principles reflect "constitutional values in the area of free speech." . . . Third, this Court has held that "newsworthiness" is to be broadly construed. . . . includes . . . social trends or any subject of public interest. . . . Significantly, the fact that a publication may have used a person's name or likeness "solely or primarily to increase the circulation" of a newsworthy article - and thus to increase profits - does not mean that the name or likeness has been used for trade purposes within the meaning of the statute. Messenger v. Jahr Printing and Publishing, 94 N.Y.2d 436 at 441 (2000)(Internal citations omitted).

It is uncontested that the images taken by Defendant were taken without consent. Additionally, there is no view that the individuals photographed were themselves of public interest. The question then, is whether the photographs used by the photographer in a show or as examples of his art qualified as a commercial use or for the purpose of advertising or trade.

To establish entitlement to a preliminary injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable harm in the absence of an injunction, and (3) a balance of the equities in favor of granting the injunction. (See, CPLR ...

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