Why Muslim Woman’s Suit Against AP for Hijab Photo Will Probably Fail
A Muslim woman has sued Associated Press (AP) and photographer Mark Lennihan for unspecified damages over the unauthorized use her likeness, claiming violation of her civil rights. The case is a legal long shot, but if she wins, wire services and freelance photojournalists—at least in New York state—would have to get the consent of everyone in the photographs they offer for licensing to publishers.
Fifi Youssef filed suit in a New York State court last week, claiming AP and Lennihan violated her rights of publicity under a state law that prohibits the use of anyone’s name, likeness or voice “for advertising purposes or the purposes of trade.”
According to the claim, Youssef was having coffee in a Starbucks coffee shop on December 16, 2015, wearing a hijab, when she was photographed without her knowledge by Lennihan. The picture shows Youssef staring downward at her cell phone.
Two days later, the image appeared for license on AP’s website, listed “as part of AP’s commerce trade,” according to the suit. Then, on December 21, The Washington Post published the photo as an illustration for an op-ed piece titled “As Muslim women, we actually ask you not to wear the hijab in the name of interfaith solidarity.”
“Clearly, the article attacks [Youssef’s] fundamental beliefs,” Youssef’s lawsuit says.
Youssef says in her claim that AP’s “sale” [ie, licensing for fees] of images—including the image of her—amounts to commercial use, in violation of the state law. But she faces an uphill battle.
The focus of New York’s right of publicity law “on advertising and trade means that a use designed to solicit sales of products or services is forbidden,” says Harvard University’s Digital Media Law Project on its website. “But this category of advertising uses is somewhat narrow [and] contains a long list of exceptions, which include protections for professional photographers against suits by their subjects.”
Nancy Wolff, an intellectual property attorney in New York, says the ruling in the case of Foster v. Svenson established “that the First Amendment trumps privacy and that a license or sale does not make a use commercial.” In that case, New York courts rejected arguments that art photographer Arne Svenson was violating New York’s right of publicity law by offering unauthorized photographs of the plaintiffs for sale in an art gallery.
“I have argued many times that the aggregation, display and offering for sale of images is a right under copyright [law] and outside any state right of publicity law,” says Wolff, who is not involved with the Youssef case, though she has done work for AP in the past. “You only look at the end use to determine if the right of publicity is invoked. Any other position would interfere with the distribution and licensing of images [and] with first amendment uses…No book , magazine or art print could ever be sold without the subjects’ consent.”
Such a result, she notes, “would be absurd.”
Significantly, Youssef did not name the end user–The Washington Post–as a defendant in her lawsuit, because a mountain of case law has given news organizations wide berth to publish images of individuals without permission under a “newsworthiness” exception to New York’s right of publicity law.
Arne Svenson Exonerated on Appeal in Privacy Invasion Case (subscription required)