Photographer Protected Even When Art Offends Religious Beliefs

Nussenzweig v DiCorcia (Feb. 8, 2006), decided last Wednesday by a New York state trial court, involved a suit filed by Erno Nussenzweig, a Hasidic Jew, against Philip-Lorca DiCorcia, a professional photographer. DiCorcia took a series of photographs of persons passing through Times Square, including Nussenzweig. Without obtaining the consent of any of the individuals, DiCorcia used the photos in a gallery exhibition, and in a catalogue that was published to go along with the exhibit. Nussenzweig's religious beliefs are violated by the use of the photo. He believes that DiCorcia's use of his image violates the second commandment prohibition against graven images. Nussenzweig sued under New York's privacy law, but the court rejected his claim, finding that artistic works are protected by the First Amendment and are excluded from coverage under the privacy law:

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.... There is no state action complained of in this case, only the private actions of defendants. ...

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.... [C]onstitutional 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 ... the price every person must be prepared to pay for in a society in which information and opinion flow freely. [Thanks to Marc Stern via Religionlaw listserv for information.]