"Do you know if Arrington appealed to the US Supreme Court?"- Ellis
Yes, Arrington was appealed to the U.S. Supreme Court. The Court denied certiorari, meaning it refused to hear the case. The denial of "cert" is not a judgment on the merits of a case, simply a reflection of the fact that not enough members of the Court believe that a case presents an issue of sufficient federal significance or that a case is in the wrong posture (because of its facts or legal underpinnings) to address an issue the Court wishes to take up.
"It is also worth pointing out that most of us don't have the immense legal & financial resources of the New York Times."- Ellis
And it is certainly true that someone like Arrington with sufficeint rescources could make a photographer's life miserable with a frivilous lawsuit. This is why I carry a business policy that would cover such a suit, despite the fact that I don't do all that much professional shooting.
"Does (Arrington) then imply that a photographer could walk down a public 'clothing optional' beach taking photographs of anyone and everyone, then publish those images in the local newspaper?"- Bob
In theory, it does, in that if you walk around nude in public in New York State, you should have no expectation of privacy, so long as an image taken of you was used for newsworthy purposes. In De Gregorio v. CBS, Inc., 473 N.Y.S.2d 922 (Supreme Court of New York, Special Term, New York County 1984), ... o.k. ... at this point, I'll explain that in New York, the "Supreme Court" is not the highest court in the state. The highest court is the "Court of Appeals of New York." (Don't even get me started on Pennsylvania.)
Anyway, De Gregorio sued CBS alleging an invasion of his right to privacy (Civil Rights Law, § 51), arising out of a television broadcast by CBS of a film of De Gregorio, a married man, walking hand-in-hand with an unmarried female co-worker on a city street. The court, holding for CBS, found that the five-second filmed sequence, a portion of a news documentary depicting people behaving in a romantic fashion, involved subject matter of public interest and did not constitute a use for advertising or trade purposes within the meaning of section 51. Also, there was no false representation in the broadcast, freedom of the press precluded any redress.
"'Cert. denied' means that in response to the appellant's request, Supreme Court refused to issue a 'writ of certiorari,' which is a formal request to send the case up for review. This makes the lower court's ruling the established case law."- Dave
To clarify, the Supreme Court let New York's highest court's ruling stand in Arrington by denying certiorari. As Arrington was a state court decision, it is binding precident in New York, but has no precidential value outside of New York. As the U.S. Supreme Court has pointed out with great annoyance on several occasions, when certiorari is denied, the denial should not be taken as either support or criticism of the lower court's ruling, whether the lower court in question is a state or federal court.
"(T)here are exceptions in the cases of giving publicity to a private person's private life, and in the case of publicity that puts a person in a false light."-
Regarding "false light," New York's highest court clarified Arrington last year in Messenger v. Gruner + Jahr Printing & Publ'g, 727 N.E.2d 549 (N.Y. 2000):
"(I)n Arrington, the New York Times Sunday Magazine used the plaintiff's photograph without his consent 'as the most prominent illustration of a feature article entitled 'The Black Middle Class: Making It''. Plaintiff alleged that the article expressed views with which he did not agree and that illustrating the article with his photograph was ''distorting' ... not only of black persons of 'middle class' status generally but also of himself, as its supposed exemplar, in particular'. He complained that 'others quite reasonably took the article's ideas to be ones he shared'. And, in his brief to this Court, Arrington argued, citing Binns v Vitagraph Co., that 'to the extent that publication of [his] photograph ... conveys the impression that he shares the views stated in the ... article, it is pure fiction' that is 'prohibited by the statute'. Still, we rejected plaintiff's allegation that he was entitled to recover under the Civil Rights Law, concluding that the newsworthiness exception applied as a matter of law. We declared that plaintiff's contention that the article portrayed him in a 'false light' was not cognizable, and that it would be 'unwise' for the courts 'to essay the dangerous task of passing on value judgments based on the subjective happenstance of whether there is an agreement with views expressed on a social issue'.
Again in Murray, plaintiff's photograph, taken while attending a St. Patrick's Day Parade in green regalia, appeared on the cover of the defendant's magazine. 'Directly above that photograph' was the caption, 'The Last of the Irish Immigrants' (Murray v New York Mag. Co., supra, 27 NY2d, at 408). The article discussed 'contemporary attitudes of Irish-Americans in New York City'. Although the Murray plaintiff was 'not of Irish extraction', we ruled that defendant was entitled to summary judgment, because the article was newsworthy and not advertising in disguise, and because a genuine relationship existed between the photograph and the article.
Thus, it is clear that a Civil Rights Law §§ 50 and 51 claim does not lie where a plaintiff's photograph is used to illustrate a newsworthy article. There are two limitations: first, there must be a real relationship between the article and the photograph (see, e.g., Thompson v Close-Up, Inc., 277 App Div 848 ['no connection' between photograph and article on dope peddling]), and second, the article cannot be an advertisement in disguise (see, e.g., Beverley v Choices Women's Med. Ctr., supra, 78 NY2d, at 752-753 [calendar was advertisement in disguise]). Of course, a Civil Rights Law claim may lie if a plaintiff's picture is used purely for trade purposes, and not in connection with a newsworthy article (see, Brinkley v Casablancas, 80 AD2d 428 [Civil Rights Law action lies for defendants' distribution of pin-up posters without plaintiff's consent])."
