Artist Philip-Lorca DiCorcia and Pace MacGill gallery have prevailed on summary judgment in the "privacy" lawsuit brought against them by the subject of one of DiCorcia's photographs ($). The suit was brought under New York Civil Right Law sections 50 and 51, which prohibits the use of someone's name or likeness without their consent "for advertising purposes or for the purposes of trade." The photograph of the plaintiff was produced and sold in an edition of 10 plus 3 artist's proofs, shown at Pace in the Fall of 2001, and included in a catalogue that accompanied the exhibition. Nevertheless, following cases involving the model Cheryl Tiegs (Simenov v. Tiegs, 159 Misc.2d 54 (N.Y. Civ. Ct. 1993)) and the artist Barbara Kruger (Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002)), the Court held that "artistic uses" are exempt from the privacy statute. The Court noted that "art can be sold, at least in limited editions, and still retain its artistic character" ("first amendment protection of art is not limited to only starving artists") and that "a profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes."
All of that seems right, and consistent with the prior caselaw. But the case also includes a (slightly more muddled) discussion of the more difficult question of the applicable statute of limitations. The limitations period under Sections 50 and 51 is one year -- but one year from when? The Court clearly rejected any rule based on plaintiff's discovery of the unathorized use. Instead, it noted that New York's First Department follows "the single publication rule" -- i.e., the statute begins to run from the first unauthorized use -- in which case, since he didn't bring suit until April 2005 (three and a half years after the Pace exhibition), plaintiff's claim was clearly time-barred. But since the single publication rule is "not universally followed in other departments" -- it cited Russo v. Huntington Town House, Inc., 184 A.D.2d 627 (2nd Dept. 1992), which endorsed a kind of "continuous wrong" doctrine, under which the statute runs from the last use, rather than the first -- the Court decided to reach the merits, which, as noted above, seemed pretty straightforwardly to favor the defendants. All in all, a good result for artists' rights.
