I have previously commented on issues concerning photographers whose photos capture the likeness or image of a model, and the necessary balance to be maintained between the ability to use these images and the model's right of privacy.

The New York statute, as those in most other states, clearly prohibits use of such an image for purposes of advertising or trade, without written permission.

One exception to potential liability is when the image depicts a newsworthy event or concerns a matter of public interest, which is usually in connnection with a factual story or event. However this exception does not apply where use of the image does not have a real relationship to the story, or it is actually an advertisement in disguise.

A new wrinkle has risen, in a situation where the defendant has used a likeness of a person, without consent, in a fictional context, but in connection with a newsworthy matter.

The question has come up on appeal in the U.S. Second Circuit Court of Appeals, after a New York jury awarded $100,000 to a minor for invasion of privacy. The Appeals Court, in Messenger v. Gruner + Jahr, found that New York law was undecided on this issue, and in a procedural move, requested the New York Court of Appeals to state what the law is.

The facts, briefly stated, are that a teenager (an "aspiring model") posed for photos to be published in YM Magazine, which is owned by Gruner + Jahr. Written consent was given for use by the minor, but not by her parents, as required.

The magazine ran the image as part of its "Love Crisis" column - letters on that topic - with the headline "I got trashed and had sex with three guys." The author of the letter was not the model. The model sued for invasion of privacy, claiming others believed that she was the writer and that the story was truthful.

On appeal, the defendant argued that the newsworthiness of the subject matter (teenage sex) was a shield to the fictionized account.

This wrinkle will hopefully be "ironed out" by the New York Court of Appeals in an equitable manner.