I am guessing that "right of publicity law" (that's the NY statute sued under) is well enough developed so that there is a relatively clear standard as to what "recognizable" means. In that regard, see CHEATHAM v. PAISANO PUBLICATIONS, INC., 891 F.Supp. 381 (1995) where the court said:
In order to succeed in her claim, Plaintiff must have a notoriety which is strong enough to have commercial value within an identifiable group.
The Court has grave doubts that Plaintiff can establish the proof necessary to show a sufficiently wide notoriety for this case to go forward. The photographic replica does not display Plaintiff's face; because the photo was taken from behind and includes only her backside from her waist to her thighs. Plaintiffs cause of action under a right of publicity claim may arise only if her image is distinctive enough that her friends and customers recognized the replica drawing on the T-shirt and identified this drawing as her "image."
Plaintiffs assertions that friends and customers recognize her designs and that these unique designs have commercial value overcomes Defendants' motions to dismiss at this early stage. If the recognition of Plaintiff's image is sufficiently clear and sufficiently broad-based, it may be an unlawful appropriation for which Plaintiff could receive damages. For these reasons, Defendants' Motions to Dismiss the claim for appropriation of image are denied at this time..
In Cheatham, the unpermitted use was a photograph of a woman from the rear wearing clothing she had designed with a cutout that let her butt show. The plainitff argued that although her butt per se might not be recognizable, she was recognizable because of the unique clothing she designed and wore (i.e., the image could only be her). The court decided that there was a fact issue of how large this group who would recognize her from the clothing might be (if it existed) that required denial of the motion to dismiss.
Now, this just relates to the lawsuit for violation of rights of publicity, which I think is a loser. I do think that a lawsuit for violation of right of privacy would have a high degree of success. Taking photos from the shadows with a long telephoto and publicly displaying them? Give me a break. To me the law is pretty clear that you have a right of privacy in your home. That right may not be violated if you have the blinds up and someone across the way can casually see through your window with their naked eyes. But as soon as that person picks up the binocular or birding lens, he has have crossed the line.