Defendant, a photographer, took a photo of a Hasidic Jew walking on the streets of New York City, without permission. This photo was included in an advertised and well-publicized exhibit open to the public, and some of the publications and reviews of the exhibit included a copy of this photo. In addition, a few copies of the picture were sold for amounts between $20,000 and $30,000. The subject of the picture sued the photographer for violating civil rights laws which bar the unauthorized use of another’s likeness in a commercial venture. He alleged also that this photo violated his religious beliefs. In addition to finding that plaintiff’s time to sue had expired, the court agreed with the photographer that the civil rights laws at issues were applicable only to bar an unauthorized use in connection with advertising and/or trade. Because the photos were art and not advertising or trade they were therefore excluded from these laws. The court held also that the photo was protected free speech even though significant sales were made, noting that the fact that profits were earned did not defeat the defense of free speech.
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