Can A Visual Artist Use Another Person's Image In Visual Art?

Recent copyright infringement cases - including lawsuits against Richard Prince and Shepard Fairey - have sensitized the art community to the potential legal pitfalls associated with the use of another person's copyrighted photographs. But what about the subjects of those photographs? Do the subjects have a claim if a photographer uses their image without consent? According to a recent New York appellate court decision the answer under New York law clearly is "no" if the photographs are fine art. While the decision confirms the strong First Amendment protection for works of art, it troubles people who believe the subject's rights were violated because the photographs were taken through the windows of people's homes. Here's what happened.