The Volokh Conspiracy
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Fifi Youssef was sitting in a Starbucks, minding her own business, when photographer Mark Lennihan photographed her. He then offered the photograph (shown above) for sale via the Associated Press's Web site. The photograph was used to illustrate an opinion column here at The Post, titled "As Muslim women, we actually ask you not to wear the hijab in the name of interfaith solidarity." (Disclosure: I also used it to illustrate a post linking to that column, but when Youssef politely asked me not to use it, I decided to replace it with another photo—just my own editorial decision; I use the photograph in this story, because it's more directly relevant to it.)
Youssef didn't like this use of her photograph, and more broadly didn't like her photograph being sold by Lennihan and the AP. "Plaintiff has been dismayed and deeply emotionally upset by defendants' use of her photograph for advertisement and trade purposes, classifying her as 'hijab, Muslim, Islam' [in keywords associated with the photograph on the AP site]." She also was apparently upset by some of the comments to the Post article, such as "I'm fine with muslim women wearing a scarf…just wear it where I don't have to look at it. It is against my religion to have to look at it because it reminds me of a religion that does not allow women to hold a job, drive a car, vote, walk out in public unescorted, get a decent education, etc." She has therefore sued Lennihan and AP, for using her likeness for the purpose of trade, in violation of New York Civil Rights Law § 51, the New York "right of publicity" statute.
She hasn't sued The Post, and I think that is a wise decision: The use of photographs, including stock photographs, to illustrate news stories isn't actionable under the right of publicity, which excludes news and opinion publications. (The one exception is nude or sexually themed photographs used by pornographic magazines, as to which the courts have sometimes allowed liability if the subject didn't consent to publication of the photo.)
Nor would publishing a photo be actionable as disclosure of private facts, because it shows only what the subject deliberately showed to people around her in public. And that's true of photographs being used simply to illustrate a generic phenomenon or practice, such as people playing soccer in a park or sitting in a headscarf at a coffee shop, and not just to illustrate a specific event in which the person participated. (I set aside here the use of a photograph to advertise some other products that aren't themselves related to the photographed person; thus, for instance, if Youssef's photograph was used to advertise halal meat, that would be an infringement of the right of publicity, whether the ad appears in a newspaper or elsewhere.)
But the lawsuit against the photographer and AP, I take it, aims to take advantage of a set of cases that is more plaintiff-friendly: the cases that (sometimes) impose liability when the speaker is just selling a person's image, with little or no extra material. Thus, for instance, courts have allowed people or their heirs to sue for selling busts of the people (the Martin Luther King Jr. case), prints with charcoal drawings of the people (the Three Stooges case) or cards depicting a person together with a short joke (the Paris Hilton case). And, most relevant here, a 2007 Illinois appellate decision allowed a lawsuit by singer James Brown against the Corbis stock photograph agency, based on Corbis's display of photographs of singer James Brown in "licens[ing] copyrights for stock photographs and images." The dispute there was mostly about whether federal copyright law preempted the state right of publicity, but it seemed that the court was assuming that the marketing of people's photographs could indeed violate the right of publicity.
The cases are not uniform on this. For instance, a court has held that the First Amendment protects an artist's painting that mostly consists of depiction of Tiger Woods. Likewise, a federal district court in Illinois disagreed with the holding in the James Brown case, and held that the sale of images for stock photograph purposes didn't infringe the right of publicity. Still, a lawsuit based on the use of a person's photograph just to sell the photograph is at least potentially viable, unlike a lawsuit based on the use of a person's photograph to illustrate a story.
But not in New York, I think. New York's right of publicity, which applies in this case, is written quite narrowly and has been read narrowly:
Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without … written consent first obtained … may … sue and recover damages …. But nothing contained in this article shall be so construed as to prevent any person, firm or corporation from selling or otherwise transferring any material containing such name, portrait, picture or voice in whatever medium to any user of such name, portrait, picture or voice, or to any third party for sale or transfer directly or indirectly to such a user, for use in a manner lawful under this article ….
New York courts have recognized that use of photographs to illustrate newspaper articles isn't covered by the statute (even though newspaper publishing is indeed a "trade"). And this means that Lennihan and AP are free to sell "material containing" Youssef's "picture" "for use in a manner lawful under this article," such as news coverage.
To be sure, a New York trial court decision in Nolan v. Getty Images, Inc. suggested that a stock photography service could be liable if an image it sold was then used for advertising purposes (perhaps even for public service advertisements), on the theory that such advertising use is not "lawful." But here The Post's use was indeed lawful, for the reasons discussed above. Also, Youssef might argue that the photographs could eventually be used for unlawful commercial advertising purposes in the future. But I don't see how that would strip Lennihan and AP of the "selling … for use in a manner lawful" defense, given that both the actual and most likely foreseeable and intended use of the photograph was a lawful newspaper use.
So there'll be no occasion here, I think, for an interesting discussion of First Amendment constraints on the right of publicity (for more on that, see this post about a case now pending before the U.S. Supreme Court). Instead, I just think the New York courts will find that Youssef has no claim under the New York statute.