Public pictures, private lives

Folio: The Magazine for Magazine Management, May 15, 1995 by Lorraine Calvacca

A photographer receives oral permission to take pictures of a lesbian couple on their way to a commitment ceremony. The photographer later sends a complimentary print to the women and asks them to sign a model release. They decline. Six years later, the picture shows up in a national magazine, Popular Photography. The two women then sue for invasion of privacy and emotional distress.

So who gets the last word? The publisher does, at least in this particular case, as evidenced by the recent dismissal of the women's lawsuit against Popular Photography's parent, Hachette Filipacchi Magazines. "[Publishers] know that if you use a photograph in a matter of public interest, you are protected," says Slade Metcalf, the New York City-based attorney who represented Hachette against the plaintiffs.

The lawsuit stems from a picture of the two women - dressed as bride and groom - that appeared in the June 1994 issue of Popular Photography. The caption read: "Lesbian couple ... two women on their way to a commitment ceremony in a church in Greenwich Village." The picture, taken in 1988 by photographer Kathy Shorr, was part of a photo essay depicting some of the various passengers Shorr encountered during a stint as a chauffeur. (Although a separate lawsuit against Shorr was still pending in early April, it was expected to be dismissed as well.)

Newsworthy use

In her decision, New York Supreme Court Judge Diane A. Lebedeff ruled that the plaintiffs' right to privacy was not violated, based on Statute 50 of the Civil Rights Law, which prohibits the unauthorized use of a person's name, portrait or likeness "for advertising purposes or the purposes of trade, but permits unauthorized use of a person's likeness if it is in the public interest.

"In short," the decision states, "the photograph had a reasonable relationship to the remainder of the article concerning the various ways people celebrate major events in their lives. The increasing ability of the gay community to participate in ceremonies once reserved to the heterosexual population," the judge continues, "is a reflection of the progress of society and is newsworthy."

Although acknowledging that the judge's decision "conforms to New York State law," the attorney who represented the two women says the ruling sends a message of "anything goes" to publishers. "These were just two young ladies trying to keep their behavior quiet," says Woodside, New York-based lawyer Martin Shulman. "The bottom line is that publishers can get away with anything, so long as they can make some justification for newsworthiness, no matter how far-fetched. I don't think I would win if someone took a picture of me in my bedroom and published it." Shulman says it is unlikely he will appeal the decision.

"This case is not a precedent to establish that anything goes," argues New York City-based attorney Joel L. Hecker. "The court found that the photograph was in good taste, that there was no subterfuge."

Had the lawsuit been filed in another part of the country, Hachette max. have found itself on the losing side, notes New York City-based media lawyer Laurence Savell. "The laws of other jurisdictions are broader than New York's, such that the disclosure of private - albeit accurate - facts may be a ground for a claim elsewhere."