NY photographer of young, nude Brooke Shields dies

NY photographer famous for nude 1970s images of Brooke Shields, then age 10, has died

Dec 08, 2010 06:05 EST

Garry Gross, a fashion photographer known for his 1970s nude images of Brooke Shields, taken when she was 10 years old, has died in Manhattan, his sister said Tuesday. He was 73.

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Branka Ruzak

In this photo Nov. 8, 2009 photo released by Branka Ruzak, photographer Garry Gross is photographed with a puppy named "Pixie" in New York. Gross, a fashion photographer known for his 1970's nude images of Brooke Shields, taken when she was 10 years old, has died in Manhattan, his sister said Tuesday, Dec. 7, 2010. He was 73. Gross, who in later years became a certified as a dog trainer, had turned to photographing portraits of canines. (AP Photo/Branka Ruzak)

His sister, Linda Gross, said he died Nov. 30 from a heart attack at his home in the Greenwich Village neighborhood. "He'll be sorely missed by family and friends alike," his sister said when reached by The Associated Press by telephone at his studio.

Though Garry Gross earned his reputation as a celebrity image-maker - his pictures graced the covers of albums by Whitney Houston and Lou Reed - in 2002 he switched careers and became certified as a dog trainer.

Most recently, he had turned to photographing portraits of canines, including such notable dogs as talk show host Rachael Ray's pit bull Isaboo.

But it was the 1970s images of Shields that marked his career most significantly.

In 1975, the actress' mother, Teri Shields, consented to allow her daughter, then a child model, to be photographed nude for a Playboy Press publication. She and her mother earned $450 for the shoot, which included a full-frontal nude image of the girl standing in a bathtub.

When Shields' acting career took off years later, she said she was embarrassed by the continued circulation of the images. At 17, Shields sued Gross in New York to stop him from selling the images, arguing they were an invasion of her privacy and caused her embarrassment.

But after a lower court granted her an injunction, the state's Court of Appeals decided 4 to 3 that the teenager could not break the contract signed by her mother that allowed Gross to take the pictures.

The court said Gross could continue to market the photos except to pornographic publications.

The photo shoot continued to make headlines decades later. In 2009, one of the images, appropriated by American artist Richard Prince for a work, had to be withdrawn by the Tate Modern museum in London after Scotland Yard warned that the image could break obscenity laws.

Jane Feldman, who managed the studio on Broadway and East 20th Street where the photographs of Shields were taken, said they were part of a series intended to explore young women coming of age.

"Garry saw it as art," she said. "It's an exploration, but it was done with great respect," she added. "Yes, it's intriguing, it's provocative."

But she said the protracted court battle cost him his career, saddling him with legal fees and marring his reputation among art directors.

"He went through periods of times where he was really angry about it," she said.

Gross was born in New York City on Nov. 6, 1937. After college, he studied under photographers Francesco Scavullo, Lisette Model and Richard Avedon.

After winning the court case against Shields in 1981, Gross went to Italy, where he worked for an agency. Upon returning to the U.S., he left the fashion industry and became a dog trainer in 2002.

It was while training dogs that he became interested in photographing them and soon grew interested in the plight of senior dogs, his sister said.

"He was very concerned about the destiny of old dogs," Linda Gross said. "When their owners die, they end up in shelters. But people don't typically want to take them home."

She said he had hoped to produce a book about aging dogs and had taken many photographs for the yet-unpublished work.

Shields v. Gross , 58 N.Y.2d 338, 448 N.E.2d 108, 461 N.Y.S.2d 254, 9 Media L. Rep. 1466 (N.Y. 1983)

This case illustrates several important aspects related to consent and commercial use:

• The case is decided on New York State law. While the general principles of consent are common to all states, the validity of a specific consent will depend on the law in the state where the consent is enforced.
• The language of the consent is a central element in defining the scope of the consent.
• The power of the person granting consent is a critical to the validity of the consent.
• The greater the lapse of time between the granting of the consent and the use of the consent, the greater the liklihood that it will be challenged.

Headnote:

The infant plaintiff cannot maintain an action pursuant to section 51 of the Civil Rights Law to recover damages for the republication of nonpornographic nude photographs of plaintiff, taken by defendant photographer when plaintiff was a professional model, or enjoin future use of the photographs in nonpornographic publications, since plaintiff's parent executed prior unrestricted consents for use of the photographs in favor of defendant, which consents are valid under the statute and may not be disaffirmed by the infant; furthermore, the consents are not void because the parties failed to comply with the provisions of section 3-105 of the General Obligations Law requiring prior court approval of certain contracts for the services of infant artistic performers, as contracts involving infant professional models do not fall within said statute.

Case History:

Special Term found that the photographs were not pornographic and, on defendant's stipulation, permanently enjoined defendant from using the photographs in pornographic publications. The Appellate Division modified the judgment and granted plaintiff an injunction permanently enjoining defendant from using the pictures for purposes of advertising or trade. Special Term found that the consents executed by plaintiff's mother were valid and unrestricted as to time and use, which findings were accepted by the Appellate Division.

The Court of Appeals modified the Appellate Division order by striking the further injunction against the use of the photographs for advertising and trade purposes and, as modified, affirmed, holding, in an opinion by Judge Simons, that the infant plaintiff is bound by the terms of the valid, unrestricted consents to the use of her photographs executed by her mother, which she may not disaffirm, and that no prior court approval of the contract with defendant for the infant's services was required under section 3-105 of the General Obligations Law, which does not apply to contracts for the services of infant professional models. Shields v Gross, 88 AD2d 846.

Court of Appeals ruling:

Order modified, with costs to defendant, in accordance with the opinion herein and, as so modified, affirmed.

Court of Appeals opinion:

Judge Simons (Chief Judge Cooke and Judges Jones and Wachtler concur):

The issue on this appeal is whether an infant model may disaffirm a prior unrestricted consent executed on her behalf by her parent and maintain an action pursuant to section 51 of the Civil Rights Law against her photographer for republication of photographs of her. We hold that she may not.

Plaintiff is now a well-known actress. For many years prior to these events she had been a child model and in 1975, when she was 10 years of age, she obtained several modeling jobs with defendant through her agent, the Ford Model Agency. One of the jobs, a series of photographs to be financed by Playboy Press, required plaintiff to pose nude in a bathtub. It was intended that these photos would be used in a publication entitled "Portfolio 8" (later renamed "Sugar and Spice"). Before the photographic sessions, plaintiff's mother and legal guardian, Teri Shields, executed two consents in favor of defendant. * After the pictures were taken, they were used not only in "Sugar and Spice" but also, to the knowledge of plaintiff and her mother, in other publications and in a display of larger-than-life photo enlargements in the windows of a store on Fifth Avenue in New York City. Indeed, plaintiff subsequently used the photos in a book that she published about herself and to do so her mother obtained an authorization from defendant to use them. Over the years defendant has also photographed plaintiff for Penthouse Magazine, New York Magazine and for advertising by the Courtauldts and Avon companies.

In 1980 plaintiff learned that several of the 1975 photographs had appeared in a French magazine called "Photo" and, disturbed by that publication and by information that defendant intended others, she attempted to buy the negatives. In 1981, she commenced this action in tort and contract seeking compensatory and punitive damages and an injunction permanently enjoining defendant from any further use of the photographs....

Historically, New York common law did not recognize a cause of action for invasion of privacy ( Arrington v New York Times Co., 55 NY2d 433; Roberson v Rochester Folding Box Co., 171 NY 538). In 1909, however, responding to the Roberson decision, the Legislature enacted sections 50 and 51 of the Civil Rights Law. Section 50 is penal and makes it a misdemeanor to use a living person's name, portrait or picture for advertising purposes without prior "written consent". Section 51 is remedial and creates a related civil cause of action on behalf of the injured party permitting relief by injunction or damages (see Arrington v New York Times Co., supra, at p 439; Flores v Mosler Safe Co., 7 NY2d 276, 280). Section 51 of the statute states that the prior "written consent" which will bar the civil action is to be as "above provided", referring to section 50, and section 50, in turn, provides that: "A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor" (emphasis added). ...

It should be noted that plaintiff did not contend that the photographs were obscene or pornographic. Her only complaint was that she was embarrassed because "they [the photographs] are not me now." The trial court specifically found that the photographs were not pornographic and it enjoined use of them in pornographic publications....

Finally, it is claimed that the application of the statute as we interpret it may result in unanticipated and untoward consequences. If that be so, there is an obvious remedy. A parent who wishes to limit the publicity and exposure of her child need only limit the use authorized in the consent, for a defendant's immunity from a claim for invasion of privacy is no broader than the consent executed to him (see Welch v Mr. Christmas, 57 NY2d 143, supra; Adrian v Unterman, 281 App Div 81, affd 306 NY 771).