A few thoughts on Marc's point about limits on common law
rights:
1) I may be mistaken, but my recollection is that the New York
right to control commercial use of one's likeness is a creature of
statute, not common law; New York courts refused to recognize such a
right when it was first urged to them around 1900, and the legislature
stepped in with a fairly narrow statute.
2) Even in those states that have recognized a common-law right
to control commercial use of one's likeness, limitations that allow news
uses and artistic uses (though not commercial advertising uses), are
routine *aspects* of the right, often developed by the courts alongside
those rights. There's no categorical common-law right to stop people
from photographing you without your consent; the right has always been
substantially qualified.
3) More broadly, it seems to me that even if some departures
from extremely old common-law entitlements might be state action, I'm
not sure the same is true for much more modern developments. The right
to control use of one's name or likeness, such as it is, is basically
about 100 years old. It was developed during the era when legislative
revisions of common-law principles had become commonplace. If a court
creates a legal principle that the legislature thinks is unsound, it
seems to me that the legislature can properly erase that principle, and
return things to the state in which they were before the court-made
principle (at least setting if the erasure is prospective, in the sense
that it doesn't apply to specific property rights vested in specific
people before the erasure).
4) But if one wants to look at legislative restrictions on
really longstanding common-law rights, consider two:
a) As I understand it, the tort of alienation of affections is
centuries old, though in most states it has been abrogated, either
legislatively or judicially. Say that John sincerely believes that
Pete's luring away John's wife Mary violates John's religious
principles, and contributes to undoing a sacred bond that John and Mary
had (much as Nussenzweig sincerely believes that di Corcia's
photographing of him violates Nussenzweig's religious principles). John
sues Pete for alienation of affections. Pete replies: The alienation
of affections tort had been abolished by the state legislature decades
before. John's response: Ah, but that abrogates what would otherwise
have been my common-law right, and thus violates the Free Exercise
Clause. What result?
b) The "common-law copyright," which was a perpetual right to
bar the republication of one's unpublished works (and the unpublished
works of one's ancestors, from whom this right descended to you), had
been recognized for at least 200 years, but in 1976 Congress abrogated
the right. Henceforth, unpublished works are covered by copyright, but
the copyright will indeed eventually expire. In 1980, Prophet Paul
writes some sacred writings that are passed around his inner circle in
an unpublished form. Paul dies the next year, and 70 years after his
death, the copyright falls into the public domain. Someone who is
writing about the Prophet's religion republishes them, but Paul's heirs
sue: The Prophet's writings, they say, should be covered by common-law
copyright, which never expires, and publishing them also happens to be
sacrilege. The publisher replies: The copyright in unpublished works
has been limited by Congress to a term of life + 70 years. The
Prophet's heirs' response: Ah, but that abrogates what would otherwise
have been our common-law right, and thus violates the Free Exercise
Clause. What result?
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern
> Sent: Friday, February 10, 2006 6:53 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: New yORK Lawsuit
>
>
> A state statute immunizes the photographer from what would
> otherwise be a common-law right. Why is not that state
> action? Marc Stern
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Samuel V
> Sent: Friday, February 10, 2006 9:37 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: New yORK Lawsuit
>
> Would "allowing the reproduction of his image without his
> consent" really be "state interference?" Government inaction
> in failing to protect someone's alleged private rights is
> pretty consistently deemed not to be state action, isn't it?
> That is, absent some equal protection violation.
>
> The claim of a "right" not to have his picture published
> seems to me analogous to a "right" of Muslims not to be
> offended by publication of pictures of Mohamed.
>
> Sam Ventola
> Denver, Colorado
>
> On 2/10/06, Marc Stern <[EMAIL PROTECTED]> wrote:
> >
> >
> >
> >
> > Today's NY Law journal reports on Nussenzweig v. di Corcia
> in which a
> > Hassidic Jew with religious objections to be photographed sued a
> > photographer who took a surreptitious picture of the plaintiff and
> sold 10
> > prints for between 20-30000 dollars. New York law permits artists to
> use
> > other persons images for artistic, but not for commercial, purposes.
> The
> > narrow question was whether the sale of a few copies of the picture
> for
> > substantial sums artistic or commercial. In the course of holding it
> was the
> > former, the court (according to the law journal) noted that New York
> law
> > favors freedom of artistic expression. For some reason, the court
> thought it
> > irrelevant to observe that the protection of those first amendment
> rights
> > came at the expense of other first amendment rights that of the
> plaintiff to
> > freely practice his faith without state interference, here
> in the form
> of
> > allowing the reproduction of his image without his consent.
> >
> > Marc Stern
> > _______________________________________________
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