Andrew kindly allowed me to publish his summary of the decision from his email (thank you!):
Here is my read on the opinion. The panel of five judges unanimously agreed with the trial court judge that the lawsuit against diCorcia should be dismissed. The judges as a group were able only to agree that the case wasnÂ’t filed quickly enough by Mr. Nussenweig — that the statute of limitations for filing a privacy lawsuit had run prior to the time Nussenweig filed his lawsuit. The five judges could not agree on whether the court had to reach Mr. NussenweigÂ’s privacy and First Amendment claims. One of the five judges, Judge Tom, however, wrote a concurring opinion for himself and Judge Malone to express views (but not the courtÂ’s view) on the privacy and First Amendment issues. IÂ’ve quoted some of the more interesting portions of the concurring opinion below.
In Judge TomÂ’s and MaloneÂ’s view Â“The sale of an individual’s image in a limited edition of 10 photographic prints for an aggregate of some $240,000 is a far cry from the use of a person’s likeness … . that Civil Rights Law ï¿½Â§ 50 and 51 were enacted to redress… . The publication of [Mr. NussenweigÂ’s] portrait in both the popular press and art media confirms that the image is “a matter of legitimate public interest to readers” so as to bring its use within the newsworthiness exception to the privacy statute… . Thus, the inclusion of the photograph in a catalog sold in connection with an exhibition of the artist’s work does not render its use commercial, as [Mr. Nussenweig] suggests … . If the image is a matter of public interest, it is immaterial whether that interest is satisfied by viewing the original in a museum, art gallery or private dwelling or by perusing a reproduction in an art magazine or other publication.Â”
Judge Tom also wrote Â“That profit may be derived from the sale of art does not diminish the constitutional protection afforded. As noted in Bery v City of New York (97 F 3d 689, 696 [2d Cir 1996], cert denied 520 US 1251 ), “paintings, photographs, prints and sculptures … always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection.” The public expression of those ideas and concepts is fully protected by the First Amendment, irrespective of whether an artist or speaker derives income from such expression (see e.g. Riley v National Fedn. of the Blind of N. Carolina, 487 US 781, 801 ; Time, Inc. v Hill, 385 US 374, 397 ; Hoepker 200 F Supp 2d at 350).
Judge TomÂ’s opinion also disagreed with Mr. NussenweigÂ’s argument Â“the courts must strike a balance between [one personÂ’s] right to freedom of expression and [anotherÂ’s] right to freedom of religion… . [and that the trial] Court’s decision to withhold the protection afforded by the privacy statute amounts to state action infringing on his right to practice his religion.Â”