Empire State Building Owners Sue Photographer for Taking Topless Photograph on the 86th Floor Observatory

See the complaint, and a New York Daily News story:

Empire State Building management has filed a $1.1 million lawsuit against photographer Allen Henson for taking pictures of a topless woman at the skyscraper’s packed 86th floor observatory in August.

Here’s one of the photos, which I imagine originally didn’t contain the black rectangle; the Daily News story has more.

The owners’ theory is that the photographer (Allen Henson) is guilty of tortious trespass, for which the owners seek $100,000 compensatory damages and $1 million punitive damages. But while I sympathize with their disapproval of the photographer’s behavior — to quote the complaint, “[i]n order to continue to attract visitors, including families, to the Building and the Observatory, … ESB has to maintain both the image and the fact that the Building and the Observatory are … [an] appropriate place for families and tourists” — I just don’t see how their theory is sound.

It’s true that a property owner can allow people onto its property only on the condition that they behave in a particular way, and exceeding this consent might constitute tortious trespass. To quote the Restatement (Second) of Torts § 168, “A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” But, according to the Complaint itself, no such condition was clearly expressed to visitors. The Complaint says,

The admission ticket for the Observatory states, in pertinent part, that ESB “may refuse admission or expel any person whose conduct is objectionable.”

But that, on its face, simply reserves ESB’s right to kick people out, or not let them in. It doesn’t purport to legally limit the scope of visitors’ conduct, especially since the word “objectionable” is so vague that it can’t be understood as anything other than “We can kick you out if we don’t like what you’re doing.” Then the Complaint says,

In addition, ESB has specific rules that it requires commercial photographers and filmmakers to follow in order to apply for and obtain permission from ESB to use the Building and the Observatory in commercial film and photo shoots. As set forth on the section of ESB’s official website titled “Film & Photo Shoots”:

The Empire State Building receives requests to use its trademarked image in films and photo shoots throughout the year.

We will consider requests that:
• Showcase ESB positively, respectfully and responsibly
• Feature ESB, and not just views/skyline shots from its Observatory

To request permission for filming or a photo session, please submit the following information:
• Film I production company
• Contact name, title …

But the Complaint doesn’t claim that these rules were made known to Henson. And while commercial use of the building’s trademarks might be trademark infringement even without notice to the user, the photos shown in the Daily News article don’t, in my view, infringe the building’s trademarks or even use them. (Indeed, the owners didn’t claim trademark infringement in their complaint.) So it seems that the trademark use policy wouldn’t even apply to Henson’s behavior.

Indeed, if the Building owners were right in their legal analysis, they could sue people for $1.1 million not just for taking topless photos, but for taking any photos that are seen as “objectionable,” or that don’t “[s]howcase ESB positively [and] respectfully.” The Building owners might be able to impose such obligations on visitors, for instance by requiring all visitors to specifically agree to them (and defining the obligations more precisely). But the general policies they mention in the Complaint don’t, I think, impose any such general obligations as to conduct such as Henson’s.

Note that whether property owners can ban female toplessness from a place of public accommodation if they don’t ban male toplessness would be an interesting question of public accommodation discrimination law. I’m inclined to say that, just as many courts have concluded that Title VII’s ban on sex discrimination in employment doesn’t necessarily preclude different dress codes for male and female employees, courts might conclude likewise as to public accommodation antidiscrimination law and different nudity prohibitions for male and female visitors; but it’s not clear. It’s also not clear whether the Building owners do have different rules for men and women; they might prohibit male toplessness, too. (Compare People v. Santorelli (1992), which held that female toplessness in public isn’t generally illegal in New York, but avoided reaching the Equal Protection Clause challenge to the statute involved there.)

UPDATE: Words from the photographer, in the Village Voice: