Opinion 09-08

January 29, 2009

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

NOTE: This opinion has been modified, in part, by Joint Opinion 09-192 and 09-231 (a judge "may engage a third party to market and sell his/her photographs to the general public").

Digest:         A full-time judge whose hobby is photography may not offer photographs, “spec images” or photographic sessions for sale to the general public. The judge may nonetheless accept occasional requests from friends, neighbors and colleagues to purchase the judge’s photographs or to have the judge make portraits or sports/action photographs for compensation. The judge may also liquidate a currently existing collection of prints on a one-time basis without referring to the judge’s official position or prepare for publication a book that includes new photographs, subject to the restrictions applicable to publishing a creative work.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C), 100.4(A), 100.4(A)(1) - (3); 100.4(D)(1)(a), 100.4(D)(3), 100.4(H); 100.4(H)(1) - (2); Opinions 08-72; 06-141; 06-105; 05-149; 03-02; 99-145 (Vol. XVIII); 96-134 (Vol. XV); 95-74 (Vol. XIII); 94-113 (Vol. XIII).

Opinion:

         A full-time judge whose hobby is photography indicates that friends or colleagues sometimes ask him/her for a print of one of his/her photographs or request him/her to take their portraits. While the judge has complied with such requests gratuitously, he/she asks whether it is permissible to sell certain items to supplement his/her income. In particular, the judge asks whether it is permissible (1) to offer “spec images” to the general public, either online, in a gallery, or compiled and printed in a book; (2) to offer such “spec images” for sale through a stock photography agency, normally done online as a licensing transaction; (3) on an ad hoc basis, to charge a session or sitting fee for a private modeling session or portrait sitting and to charge for any prints the subject wishes to purchase; (4) to take specific sports/action images, upon request, and to charge for prints that the requestor wishes to purchase; or (5) to maintain an online portfolio offering images for sale or offering his/her services as a paid photographer, without mentioning his/her judicial position. The judge emphasizes that “this is a hobby” and anticipates that the earnings would be minimal at best.

         A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). While a judge may engage in extra judicial activities that do not cast doubt on the judge’s capacity to act impartially as a judge, do not detract from the dignity of judicial office, do not interfere with the proper performance of judicial duties, and are not incompatible with judicial office (see 22 NYCRR 100.4[A] [1] - [3]).

The Committee has received a growing number of inquiries from full-time judges who seek to supplement their incomes through extra-judicial activities. In response to another inquiry, the Committee advised, “[w]hile the Committee sympathizes with the present financial situation of all New York State Judges, the Rules Governing Judicial Conduct [with exceptions not applicable here] nonetheless prohibit a full-time judge from … being an ‘active participant of any business entity’… (22 NYCRR 100.4[D][3])” (Opinion 08-72).

The Committee previously has advised that the term “business entity” as used in section 100.4(D)(3) of the Rules Governing Judicial Conduct means “an enterprise organized for profit” (Opinion 96-134 [Vol. XV]). In Opinion 94-113, the Committee advised that whether a judge’s activity in buying and selling carpets incidental to a hobby as a collector constitutes an impermissible business activity presents a “question of fact and of degree involving such considerations as frequency of sales and continuity” (Opinion 94-113 [Vol. XIII]). In response to a follow-up inquiry from the same judge, the Committee wrote that if the judge is “engaged in a continuing activity of buying and selling carpets, although personally you may regard the activity as a hobby, that activity, in fact, constitutes a business and is not permissible” (Opinion 95-74 [Vol. XIII]). The Committee further advised, however, that a “substantially one-time liquidation” of carpets would be permissible, preferably “by consignment to an auction house or dealer” (id.). And, a full-time judge with a collection of sports memorabilia who has not engaged in an ongoing business of selling sports memorabilia may dispose of the collection by direct sale to dealers, on consignment, at auction, or a substantially one-time liquidation (see Opinion 03-02).

A judge may also engage in creative activities for which he/she will receive compensation, such as writing and publishing a book of fiction, or developing and producing an album of his/her songs written by the judge, but the judge must ensure that his/her judicial position is not exploited in the promotion of his/her creative works (see 22 NYCRR 100.2[C]; 100.4[A]; 100.4[D][1][a]; Opinions 06-105; 05-149; 99-145 [Vol. XVIII]). The judge may retain an agent for marketing and sales of such creative work (see Opinion 05-149). Similarly, a full-time judge may play music in a band on “rare occasions” (approximately three to five times a year) for compensation, as long as the band itself is not a business enterprise, and the judge’s involvement is not publicized (see Opinion 06-141 relying on 22 NYCRR 100.4[H][1]).

Therefore, it is the Committee’s view in the present inquiry that the inquiring judge may accept occasional requests from friends, neighbors, or colleagues to purchase photographs that the judge has taken in the course of the judge’s hobby, except to the extent that such individuals currently have business before the judge’s court (see 22 NYCRR 100.2).

The judge may also accept occasional requests from friends, neighbors, or colleagues for portraits, modeling sessions, and specific sports/action images, for which the judge may charge, again except to the extent that such individuals currently have business before the judge’s court (see id.).

The judge may liquidate a collection of currently existing prints on a substantially one-time basis, either online, in a gallery, or through an agency, subject to restrictions set forth in the cited opinions and the rules, and, as the judge suggests, without mentioning the judge’s official position (Opinions 03-02; 95-74 [Vol. XIII]). Such liquidation may include a compilation of existing prints into a book.

With respect to publishing a book of photographs, the Committee finds a close analogy to a publishing a fictional work or producing an album of original songs. Therefore, the judge may prepare such a book and publish it commercially or through self-publication in the manner and subject to the restrictions described in the opinions cited above relating to works of fiction and music (Opinions 06-105; 05-149; 99-145 [Vol. XVIII]).

Except as indicated, the judge may not offer photographs or photographic sessions for sale to the general public, such as by offering “spec images” or by maintaining an online portfolio or some other continuing offer (22 NYCRR 100.4[D][3]; Opinions 95-74 [Vol. XIII]).

Compensation for permissible extra-judicial activities is subject to the provisions of 100.4(H), including certain reporting requirements (22 NYCRR 100.4[H][2]).