Panel Dismisses Privacy Claim Brought
by Justice Satirized  by Artist as Demon

By John Caher
New York Law Journal
February 10, 2003

An appellate panel in Albany last week partially reversed one of its own judges in a peculiar case involving a mid-Hudson artist who satirized a local town justice as a horned devil.

The Appellate Division, Third Department, said the newest member of the court, Justice Anthony T. Kane, erred by preserving the town judge's privacy claim against the artist. However, the Third Department said Justice Kane properly cited the artist for criminal contempt for violating an injunction that should not have even been in effect.

Altbach v. Kulon, 92378, arises out of a dispute between the town judge in Liberty, Sullivan County, and a local artist. Artist Franciszek C. Kulon was arrested in 1998 and charged with possessing a stolen gun. Liberty Town Justice Jeffrey S. Altbach, filling in for the town judge in Neversink, set bail as recommended by the prosecutor. Later, the case was dismissed.

Kulon then caricatured Justice Altbach as a goat-hoofed, horned demon with a tail. To promote the opening of his art gallery, Kulon distributed flyers displaying his oil painting of Justice Altbach. The flyers included a small reproduction of a photograph of Justice Altbach that appeared in a yellow page advertisement for his law practice.

Justice Altbach sued Kulon for defamation and obtained an injunction barring Kulon from displaying or distributing the painting or any depiction of the judge while the case was pending. Justice Kane, then a trial judge in Sullivan County, dismissed the defamation claim, but allowed the town judge to amend his complaint to add a privacy cause of action under Civil Rights Law §§ 50 and 51. The injunction remained in effect.

Early last year, Kulon violated the preliminary injunction and promoted his painting on the Internet. He also posed with his artwork for a picture in the local newspaper. Justice Kane imposed a fine of $3,850 for civil contempt and $500 for criminal contempt.

In its decision last week, the Third Department justices said their colleague should have dismissed Justice Altbach's privacy-based Civil Rights Law claims. The appeals panel said that the painting itself, as Justice Kane found, was clearly "a caricature and parody of [Justice Altbach] in his public role" and protected under the First Amendment, and was excepted from the privacy provisions in state law. However, the panel also said that Kulon's use of the photograph was "part and parcel of the parody," and therefore similarly protected even though the town judge's name and likeness was used without permission to promote the artist's enterprise.

Although the Third Department said Justice Kane should have dismissed the privacy claim and vacated the preliminary injunction, it pointed out that there was an injunction in place and Kulon violated the court order.

"There can be no dispute that defendant's conduct in publicizing the painting violated the original injunction," Justice Robert S. Rose wrote in an opinion joined by Justices Thomas E. Mercure, Karen K. Peters, Edward O. Spain and John A. Lahtinen.

However, the appellate court said that civil contempt was not appropriate since that remedy is available only when the offending conduct prejudices the rights of another party. Here, the court said, Justice Altbach "had no protected privacy right regarding [Kulon's] use of the painting, name or photograph," and therefore could not sustain damages compensable through a civil contempt finding.

Gerald Orseck of Liberty argued for Justice Altbach. Stephen Bergstein of Thornton, Bergstein & Ullrich in Chester appeared for Kulon.

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