There is no line drawn or test to be administered to decide whether or not something qualifies as an “artistic expression” in New York as there might be in other states such as California. But, it does not take much to qualify something as a “form of expression” in New York, for all the work must do is convey some ideas or feelings of the artist to the intended audience. See e. g. , University of Notre Dame Du Lac, 256 N. Y. S. 2d at 301 (despite Twentieth Century-Fox using the University of Notre Dame’s name, logo, and image without the university’s consent, the court allowed for the release and distribution of the movie and book, both entitled “John Goldfarb, Please Come Home,” which express the author’s feelings toward college football, thereby qualifying the works as “forms of expression”); Altbach v. Kulon, 754 N. Y. S. 2d 709 (App. Div. 2003) (an oil painting of a plaintiff depicted with devil horns and a tail expressing the artists’ disdain for the plaintiff, as well as the flyers containing the original painting, were correctly considered to be “artistic expressions… that are entitled to protection under the First Amendment and excepted from New York’s privacy protections”);
Hoepker v. Kruger, 200 F. Supp. d 340, 348 (S. D. N. Y. 2002) (Kruger’s composite, which she produced by “[cropping] and [enlarging] Hoepker’s photographic image, [transferring] it to silkscreen and, in her characteristic style, [superimposing] three large red blocks containing words ‘It’s a small world but not if you have to clean it’” was considered a form of expression by the court); Foster v. Svenson, 7 N. Y. S. 3d 96, 97 (App. Div. 015) (artist, Arne Svenson secretly took pictures of people in their homes for an exhibition entitled “The Neighbors” in order to “comment on the ‘anonymity’ of urban life”, and this was considered a form of expression by the court). No consent in needed to use someone’s image for an advertisement purpose if the advertisement is directly related to an artistic, educational, or informative expression that is considered to be newsworthy or of the public’s concern.
Compare Finger v. Omni Publishing International, 566 N. E. 2d 141 (N. Y. 1990) (court approved Omni Publishing’s use of a family photo without the family’s consent in the June 1988 issue of the Omni magazine because the photograph was used “to illustrate a related news article on fertility…a topic of legitimate public interest… within the ‘newsworthiness exception’ to the prohibitions of Civil Rights Law”), and Foster, 7 N. Y. S. d at 100 (Svenson’s images of a family taken without the family’s consent “themselves constitute the work of art, and art work is protected by the First Amendment, any advertising undertaken in connection with the promotion of the art work was permitted”), and Booth v. Curtis Pub. Co. , 223 N. Y. S. 2d 737, 742 (App. Div. 1962) (Booth’s ruling was reversed because the Appellate Division saw that “incidental advertising related to the sale and dissemination of the news medium itself may not… invoke the statute’s penalties”), with Beverley v. Choices Women’s Med. Ctr. , Inc. , 587 N. E. 2d 275 (N. Y. 991) (the plaintiff won her case against Choices because they included her picture in a calendar without her consent, and the medical center’s “name, logo, address and telephone number on each page… glowing characterizations and endorsements concerning the services Choices provides, leave no doubt that the calendar is commonly recognized as quintessential advertising material”). No consent is required to use someone’s image for a trade purpose if the item being traded is directly related to an artistic, educational, or informative expression protected by the newsworthiness and public concern exemption.
In other words, if the First Amendment protects an artistic expression, the sale or profit made off of said art does not strip it of its First Amendment protection. See, Stephano v News Group Publs. , 474 N. E. 2d 580, 586 (N. Y. 1984) (Court of Appeals maintained that the fact that News Group used the plaintiff’s photo without his consent “in its column solely or primarily to increase the circulation of the magazine and therefore its profits… does not mean that the defendant has used the plaintiff’s picture for trade purposes within the meaning of the statute”); Foster, 7 N. Y. S. d at 100 (Svenson’s images of a family taken without the family’s consent remained under the protection of the First Amendment despite “the fact that profit might have been derived from the sale of the art work”); Simeonov v. Tiegs, 602 N. Y. S. 2d 1014, 1017 (Civ. Ct. 1993) (New York Civil Court allowed artist Simeonov to sell bronze busts of a former model without her consent because “part of the protection of free speech under the United States and New York State Constitutions is the right to disseminate the ‘speech’ and that includes selling it, at least under certain circumstances”); Altbach, 754 N. Y. S. 2d at 709 (App. Div. 2003) (the court found the defendant’s advertisements and internet sales of his caricature painting of the plaintiff fell outside the jurisdiction of the right of privacy because his actions were “exempt as part of, or ancillary to, an artistic expression”). In a similar vein, no consent is required to use someone’s image for merchandizing purposes as long as the merchandising is directly related to an original artistic expression; thereby the value of the merchandise is not derived solely from the individual or their accomplishments.
Compare Hoepker, 200 F. Supp. 2d at 353 (plaintiff was allowed to sell images of the Kruger Composite on trinkets in the gift shop without Dabney’s consent owing to the fact that “Dabney’s image was affixed to various gift items not to flaunt her visage, but because the gift items reproduced the Kruger Composite, a work of art displayed by the Whitney”), and ETW Corp. v. Jireh Publ’g, Inc. , 332 F. d 915, 936 (despite selling his original art work representing the exact likeness of Tiger Woods as mass-produced posters, the district court granted summary judgment to the artist because “celebrities have come to symbolize certain ideas and values in our society and have become a valuable means of expression in our culture”), with Brinkley v. Casablancas, 438 N. Y. S. 2d 1004, 1011 (App. Div. 981) (Brinkley was able to enjoin Casablanca’s production and sale of a poster depicting the plaintiff because she had not given consent and despite being a newsworthy figure, the newsworthiness and public concern exemption “privilege does not extend to commercialization of [her] personality through a form of treatment distinct from the dissemination of news or information”), and Martin Luther King, Jr. , Center for Social Change, Inc. v. American Heritage Products, Inc. , 296 S. E. 2d 697, 701 (Ga. 1982) (American Heritage Products had to cease the sale of Martin Luther King, Jr. usts because “it is unfair that one should be permitted to commercialize or exploit or capitalize upon another’s name, reputation or accomplishments merely because the owner’s accomplishments have been highly publicized”).
Richard Prince’s “New Portraits” qualifies as a form of expression because the exhibition in its entirety works to express the artist’s desire to highlight American culture’s evolving conception of what a portrait is and to comment on what this evolution says about modern America.
Furthermore, it appears that Mr. Prince’s fair use defense against any claims Ms. Moss could allege concerning advertisements, trade, and merchandising would succeed in court. The advertisements using Ms. Moss’ likeness were directly related to the exhibition and were done so in order to raise awareness of the exhibition and to increase attendance at the museum so that an already protected work of artistic expression could be seen by more people.
It has been shown that in many cases, once an artistic expression is given protection of the First Amendment and thereby granted the “newsworthiness and public concern exemption” then to profit off of such artwork does not diminish the protection and exemption it possessed originally. Lastly, since the merchandise uses the artistic expression in its entirety, it will most likely be considered exempt from the right of privacy following the same train of thought used for advertisement and trade. Overall, Ms. Moss should not bring any claims against Richard Prince at this time.