Ad
Ad
Ad
Pages: « 1 ... 6 7 [8] 9 10 »   Bottom of Page
Print
Author Topic: Art or Just Plain Creepy?  (Read 69178 times)
AFairley
Sr. Member
****
Offline Offline

Posts: 1194



« Reply #140 on: May 31, 2013, 11:38:43 AM »
ReplyReply

I am guessing that "right of publicity law" (that's the NY statute sued under) is well enough developed so that there is a relatively clear standard as to what "recognizable" means.  In that regard, see CHEATHAM v. PAISANO PUBLICATIONS, INC., 891 F.Supp. 381 (1995) where the court said:

In order to succeed in her claim, Plaintiff must have a notoriety which is strong enough to have commercial value within an identifiable group.
 
The Court has grave doubts that Plaintiff can establish the proof necessary to show a sufficiently wide notoriety for this case to go forward. The photographic replica does not display Plaintiff's face; because the photo was taken from behind and includes only her backside from her waist to her thighs. Plaintiffs cause of action under a right of publicity claim may arise only if her image is distinctive enough that her friends and customers recognized the replica drawing on the T-shirt and identified this drawing as her "image."

Plaintiffs assertions that friends and customers recognize her designs and that these unique designs have commercial value overcomes Defendants' motions to dismiss at this early stage. If the recognition of Plaintiff's image is sufficiently clear and sufficiently broad-based, it may be an unlawful appropriation for which Plaintiff could receive damages. For these reasons, Defendants' Motions to Dismiss the claim for appropriation of image are denied at this time.
.

In Cheatham, the unpermitted use was a photograph of a woman from the rear wearing clothing she had designed with a cutout that let her butt show.  The plainitff argued that although her butt per se might not be recognizable, she was recognizable because of the unique clothing she designed and wore (i.e., the image could only be her).  The court decided that there was a fact issue of how large this group who would recognize her from the clothing might be (if it existed) that required denial of the motion to dismiss.

Now, this just relates to the lawsuit for violation of rights of publicity, which I think is a loser.  I do think that a lawsuit for violation of right of privacy would have a high degree of success.  Taking photos from the shadows with a long telephoto and publicly displaying them?  Give me a break.  To me the law is pretty clear that you have a right of privacy in your home.  That right may not be violated if you have the blinds up and someone across the way can casually see through your window with their naked eyes.  But as soon as that person picks up the binocular or birding lens, he has have crossed the line.
« Last Edit: May 31, 2013, 11:56:21 AM by AFairley » Logged

RSL
Sr. Member
****
Offline Offline

Posts: 6512



WWW
« Reply #141 on: May 31, 2013, 12:52:41 PM »
ReplyReply

Recognizability is a red herring and isn't going to decide the issue. The real question is whether or not these people have a reasonable expectation of privacy inside their homes. In common law, yes. In most states, yes. In New York. . . who knows? We'll see.
Logged

AFairley
Sr. Member
****
Offline Offline

Posts: 1194



« Reply #142 on: May 31, 2013, 01:11:11 PM »
ReplyReply

Recognizability is a red herring and isn't going to decide the issue. The real question is whether or not these people have a reasonable expectation of privacy inside their homes. In common law, yes. In most states, yes. In New York. . . who knows? We'll see.

To the contrary, in the Foster lawsuit, recognizability is precisely what the case turns on because there is no straight breach of privacy claim in the case, only breach of right of publicity.  And I don't think the intentional infliction claim will/should survive a motion to dismiss. (Note that this claim is not premised on taking the pictures in the first place, but in not ceasing their publication after the Fosters complained.  However, the complaint admits that Svenson and the gallery pulled the photos after the Fosters complained, and that the continuing use was by third parties over which Svenson had no control.)  The lawsuit will only decide the claims actually pled and litigated.  Of course the Fosters may amend the complaint to add a straight invasion of privacy claim, as they should.  AFAIK Kravitz has not filed a lawsuit against Svenson.
« Last Edit: May 31, 2013, 01:16:04 PM by AFairley » Logged

nemo295
Guest
« Reply #143 on: May 31, 2013, 01:45:55 PM »
ReplyReply

It would have been far more interesting if Svenson had been sued for invasion of privacy. Then maybe we'd get some precedent for this kind of situation. But there's still time for Kravitz to come forward.
Logged
RSL
Sr. Member
****
Offline Offline

Posts: 6512



WWW
« Reply #144 on: May 31, 2013, 03:17:41 PM »
ReplyReply

You're right, Fairley. I was under the impression that Kravitz had filed suit. If there's a suit that claims right of publicity, Foster might as well forget it unless he's a lot more famous than he appears to be and makes money from appearing in public.
Logged

RFPhotography
Guest
« Reply #145 on: May 31, 2013, 03:21:18 PM »
ReplyReply

First, it's Kravetz, not Kravitz.

Second, some of the images do, apparently show faces, https://www.courthousenews.com/2013/05/24/57929.htm

Third, the suits do include privacy matters, not just publicity rights.  It's not uncommon for a lawyer to sue under a variety of statutes in an attempt to get a judgement from one or more, or to force a settlement.
Logged
nemo295
Guest
« Reply #146 on: May 31, 2013, 04:20:02 PM »
ReplyReply

First, it's Kravetz, not Kravitz.
whatever.
Quote
Second, some of the images do, apparently show faces, https://www.courthousenews.com/2013/05/24/57929.htm
The Fosters contend that their childrens' faces were clearly recognizable--to them. Of course, what might seem obvious to a parent might not be so obvious to a jury. We will see. It's also worth noting that Svenson removed some of the photos from the galleries when the Fosters asked him to.
Quote
Third, the suits do include privacy matters, not just publicity rights.  It's not uncommon for a lawyer to sue under a variety of statutes in an attempt to get a judgement from one or more, or to force a settlement.
The primary cause cited in the lawsuit is misappropriation of their likeness. Invasion of privacy is the second cause and the rationale for it, as outlined in the suit, is poorly argued. They are going to have a tough time convincing a judge of just how Svenson's photographs put their children in danger. Why should faceless photographs of their children put them in harm's way more than, say, allowing them to be seen in a public place, like in a school playground or at a public pool? I'm not an expert on the modus operandi of perverts, pedophiles and kidnappers, but it seems to me that there are a thousand every day situations more likely to attract the attention of these people than Svenson's photographs. Unless they're accustomed to putting potato sacks over their kids' heads when they leave home, it would seem they have little to worry about from Svenson's images.

And let's be honest here, Svenson's camera is the least of their worries. At least he's an established artist with a respectable bio. There are thousands if not hundreds of thousands of telescopes owned by people living in highrises in Manhattan. You see them all the time, sitting in apartment windows in New York and every other big American city. Their owners aren't using them to look at the stars. They're looking into peoples' homes. Those are the real pervs. And then there are the myriad random passersby on the street with cellphone cameras who can easily see them through their big open windows. Who knows who they might be? The Fosters complaining about invasion of privacy, when they're living in a fish bowl in Manhattan, is completely disingenuous. It's much like the scene in "Casablanca" where Claude Rains feigns shock at the discovery of gambling in Rick's club. You're living in the Big Apple, sweethearts. You're not in Kansas any more, so don't waste our time by complaining that you shouldn't have to contend with the hard realities of living where you do. Unless you're a total moron you keep your blinds closed if you don't want people to see you, because otherwise they will see you. And you will never have the luxury of knowing who they are or what might be going on in their heads. So instead of freaking out about Svenson they should take this as their wakeup call and thank him, because maybe now these idiots will begin to take some responsibility for their own privacy in the big city.
« Last Edit: May 31, 2013, 06:06:36 PM by Doug Frost » Logged
RFPhotography
Guest
« Reply #147 on: May 31, 2013, 05:55:21 PM »
ReplyReply

whatever.

Nice to see that you have the requisite level of respect for other people.  You're not worth wasting time on.
Logged
AFairley
Sr. Member
****
Offline Offline

Posts: 1194



« Reply #148 on: May 31, 2013, 06:03:54 PM »
ReplyReply

Well, Kravetz has not filed a lawsuit either as far as I can tell.  There is a hearing on a motion for preliminary injunction in the Foster case set for June 18th.  The Fosters want to enjoin Svenson from photographing the building, among other things.  Interestingly, in the moving papers, Foster's attorney says that Svenson's conduct is a violation of NY's anti-surviellance law.  I have only been able to find one of the images online (#12) but looking at it I would say that Foster's claim that the children are "clearly recognizable" is quite a stretch.

@BobFisher, why so huffy? Your initial post that Doug Frost responded to was rather brusque itself, don't you think?  I don't see why we shouldn't be able to have a civil discussion about this.
« Last Edit: May 31, 2013, 06:07:43 PM by AFairley » Logged

nemo295
Guest
« Reply #149 on: May 31, 2013, 06:07:44 PM »
ReplyReply

Nice to see that you have the requisite level of respect for other people.  You're not worth wasting time on.

oh yes, because nitpicking about the mispelling of names in internet forums is such a noble calling. don't make me laugh.
« Last Edit: May 31, 2013, 06:35:58 PM by Doug Frost » Logged
jjj
Sr. Member
****
Offline Offline

Posts: 3637



WWW
« Reply #150 on: June 01, 2013, 03:02:56 PM »
ReplyReply

Doug, after ignoring everything that counters your spurious arguments and facts shows them to be innacurate, you are now resorting simply being more and more rude.
Not surprising though as you think being a peeping tom is fine and dandy.
And even less surprising is the fact that you are anonymous. Which is ironic considering your disregard for others privacy.



Logged

Tradition is the Backbone of the Spineless.   Futt Futt Futt Photography
nemo295
Guest
« Reply #151 on: June 02, 2013, 02:36:06 PM »
ReplyReply

Doug, after ignoring everything that counters your spurious arguments and facts shows them to be innacurate, you are now resorting simply being more and more rude.
Not surprising though as you think being a peeping tom is fine and dandy.
And even less surprising is the fact that you are anonymous. Which is ironic considering your disregard for others privacy

Deliberate distortion of my argument shows either a total disregard of the truth or the inability to grasp basic concepts. Take your pick. You're only interested in diatribe, not dialogue.

But your quip about anonymity is genuinely hilarious, as it only underscores just how clueless you really are.
Logged
popnfresh
Guest
« Reply #152 on: June 02, 2013, 03:51:03 PM »
ReplyReply

Gentlemen, gentlemen...

There comes a time in every forum "discussion" when all one can do is agree to disagree. I think you've arrived at that juncture.
It's been fun watching the fur fly from the sidelines, but now you've all succeeded in beating this horse to death. It doesn't make sense to continue.
Logged
AFairley
Sr. Member
****
Offline Offline

Posts: 1194



« Reply #153 on: June 03, 2013, 11:13:42 AM »
ReplyReply

Gentlemen, gentlemen...

There comes a time in every forum "discussion" when all one can do is agree to disagree. I think you've arrived at that juncture.
It's been fun watching the fur fly from the sidelines, but now you've all succeeded in beating this horse to death. It doesn't make sense to continue.

+1.  I'll post links to Svenson's opposition brief to the motion for preliminary injunction when it's filed and available, probably in a week or so.
Logged

AFairley
Sr. Member
****
Offline Offline

Posts: 1194



« Reply #154 on: June 07, 2013, 06:29:10 PM »
ReplyReply

This should be a link to Svenson's opposition to the Fosters' application for preliminary injunction (document 33 on the docket)
https://iapps.courts.state.ny.us/webcivil/FCASeFiledDocsDetail?county_code=oeObwMAjh5KEtI7uYG_PLUS_AJA%3D%3D&txtIndexNo=5UZOjZMZveo_PLUS_maNIt5PwAQ%3D%3D&showMenu=no&isPreRji=N

He also has filed a motion to dismiss (no 28 on the docket).  The basis for the motion is that NYS has no common law right of privacy (which is likely why it was not pled as a basis for relief - I guess NYS does not follow the Restatement in this area), and that because the photographs are works of art, they do not fall within the scope of the statutes sued under, because the fact that a gallery offers the art for sale does not transmute it into a work for "trade purposes."  As to the emotional distress claim, under NY law that can't be used to do an end run around a failed right to privacy claim, the conduct is not sufficiently outrageous to support the claim as a matter of law, nor have the Fosters suffered severe enough emotional distress.

His equitable arguments are basically that other respected/recognized photographers have done the same (with examples), the project is over and he does not intend to take any more photos, he removed the photos the Fosters complained about from the gallery, he offered to talk to them about it but they filed the lawsuit instead of responding to him, he has not licensed them to any media outlets, and if news organizations show copies they got somehow, he can't control that.
« Last Edit: June 07, 2013, 06:42:48 PM by AFairley » Logged

RSL
Sr. Member
****
Offline Offline

Posts: 6512



WWW
« Reply #155 on: June 08, 2013, 06:44:04 AM »
ReplyReply

The real question is whether or not these people have a reasonable expectation of privacy inside their homes. In common law, yes. In most states, yes. In New York. . . who knows?

Now we know.
Logged

petermfiore
Sr. Member
****
Offline Offline

Posts: 629



WWW
« Reply #156 on: June 08, 2013, 06:54:09 AM »
ReplyReply

ART remains.


Peter
Logged

jjj
Sr. Member
****
Offline Offline

Posts: 3637



WWW
« Reply #157 on: June 11, 2013, 03:04:59 AM »
ReplyReply

Deliberate distortion of my argument shows either a total disregard of the truth or the inability to grasp basic concepts. Take your pick. You're only interested in diatribe, not dialogue.
No distortion necessary, you change your argument when facts counter your quite specific claims.

Quote
But your quip about anonymity is genuinely hilarious, as it only underscores just how clueless you really are.
Really as my identity here is known and you have no links to yourself or your work. Something I always find a bit suspect when someone in a photography forum does not link to examples of their work.
Logged

Tradition is the Backbone of the Spineless.   Futt Futt Futt Photography
RFPhotography
Guest
« Reply #158 on: June 11, 2013, 07:50:35 AM »
ReplyReply

The argument being made by the photographer that these people deserved what happened to them or that they gave tacit permission because they left their blinds open is akin to the rapist saying the woman wanted it or deserved it because of the way she was dressed.
Logged
Rob C
Sr. Member
****
Offline Offline

Posts: 12213


« Reply #159 on: June 11, 2013, 08:59:58 AM »
ReplyReply

The argument being made by the photographer that these people deserved what happened to them or that they gave tacit permission because they left their blinds open is akin to the rapist saying the woman wanted it or deserved it because of the way she was dressed.


And of course, every man knows, deep in his heart, that he's absolutely irresistible and therefore rape is impossibe because, in his case, No! can't possibly mean no; it's just a further tease.

;-)

Rob C
Logged

Pages: « 1 ... 6 7 [8] 9 10 »   Top of Page
Print
Jump to:  

Ad
Ad
Ad