The Tate Gallery has removed a photograph of the young Brooke Shields, based on an original by photographer Garry Gross, from an exhibit after police initiated an investigation. Gallery officials indicated they were working with law enforcement on the matter. In 1983 Ms. Shields attempted to enjoin Mr. Gross from publishing the photographs, but Judge Pierre Leval denied the injunction.

Under this circuit’s law, an applicant for a preliminary injunction must show irreparable harm and in addition submit proof sufficient to pass one of two tests: she must show either likelihood of success on the merits or serious questions for litigation with the balance of hardships tipping decidedly in her favor…. I find that she fails to show likelihood of success on the first branch and balance of hardships on the second.

…
It is not every day that the First Amendment is cited as authority requiring prior restraint of a publication through court censorship. Indeed, it is conventional wisdom that its thrust is decidedly in the opposite direction…. Plaintiff makes an elaborately constructed argument which depends, first, on a line of cases recently summarized in Gargiul v. Tompkins, supra, 704 F.2d 661, slip op. at 2696-97 (Oakes, J., concurring) to the effect that the First and other Amendments to the Constitution protect a right of privacy and, second, on a finding that the state court’s refusal to invalidate the consent is governmental action violating this right. There are no decisions giving clear support to the existence of such a cause of action….The closest may be Judge Cooper’s suggestion in Galella v. Onassis, 353 F. Supp. 196, 232 (S.D.N.Y. 1972), aff’d on other grounds, 487 F.2d 986 (2d Cir. 1973), that the Constitution might require of state law that it bar a photographer’s egregious harassment of his target.

However the hurdle plaintiff must overcome involves not merely whether a cause of action exists; it involves whether such a cause of action commands or authorizes an injunction against publication. As noted above, whatever support may be found for the existence of such a cause of action, the entry of an injunction barring publication is another matter….

Plaintiff has not shown that she is likely to succeed in obtaining a permanent injunction on the merits. Indeed it is doubtful whether there is a fair question for litigation on the availability of a permanent injunction against publication.

…

Plaintiff claims that she will suffer irreparable harm, embarrassment and personal distress from the publication of these photographs. A number of factors diminish the force of her contentions.

First, there has already been substantial dissemination of nude photographs of plaintiff. Some of the most revealing of those now before the court were previously exhibited in a magazine and in a fashionable shop window. Another nude photograph by a leading fashion photographer, Francesco Scavullo, was published in an album entitled Scavullo on Beauty. Plaintiff also appeared nude in the role of a child prostitute in the highly publicized and widely distributed feature film “Pretty Baby.”

Second, much of plaintiff’s recent commercial activity upon which her fame is based has been far more sexually suggestive than the photographs which have been shown to the court. These photographs are not sexually suggestive, provocative or pornographic; they do not suggest promiscuity. They are photos of a prepubescent girl in innocent poses at her bath. In contrast, defense counsel have submitted numerous samples of sex-oriented publicity concerning plaintiff. Particularly notable is her widely televised sexually suggestive advertisement for blue jeans. Recent film appearances have been sexually provocative (e.g., “The Blue Lagoon”, “Endless Love”). Plaintiff’s claim of harm is thus undermined to a substantial extent by the development of her career projecting a sexually provocative image.

Although it may be questioned whether she has made an adequate showing of irreparable harm, I do not make a finding on that issue. I do find that she has failed to show a balance of hardships tipping decidedly in her favor.

Highly relevant to this conclusion is the issue of successive injunctions, discussed above, and the resulting harm to defendants. Also, defendants have submitted convincing proof that their photographs are now highly marketable. They have been restrained from distributing them for two years. Whether the photographs will continue to be marketable, and for how long, is entirely speculative. Brooke Shields is now famous and apparently the subject of widespread public interest. The fragility of such reputations is obvious; with the smallest change in any of a number of directions public interest in the photographs could disappear. A bond is not a satisfactory protection. If defendants cannot market their photographs, it will be virtually impossible for them to show what profits might have been earned.

Defendant’s “victory” in the state courts has been a financial disaster for them. After two years of injunction and one completed lawsuit, plaintiff has not yet shown entitlement to the relief she seeks. Defendants have suffered substantial harm which would be compounded by further interim injunctive relief. They have been unfairly burdened by the litigation strategy of plaintiff’s lawyers. I find that the balance of hardship favors the defendants. They are now entitled to be free of court restraint.

The case is