The owners of New York City's Empire State Building are suing a photographer for $US1.1 million ($1.22 million) over a set of topless photos taken from the skyscraper's observation deck.

Professional fashion photographer Allen Henson used his phone to take the photos last August and posted them on social media.

They were subsequently picked up by a local blog before featuring widely in US media.

Two days ago the building's owners lodged a suit in the US Supreme Court, alleging the photos constituted "forbidden behaviour" and they were "taken by Henson for commercial purposes".

"ESB was never notified about the plan for the photo shoot and [Henson] did not seek or obtain permission for the topless photo shoot from ESB at any time," court papers said.

"At the time that [Henson] and the model entered the observatory, it was crowded with visitors, including children."

The woman in the photos is Texan model Shelby Carter, whom Henson describes as a friend.

Henson, who woke up to news of the legal action when he saw a news story online, says it is bizarre to be sued because the photos were just "a bit of fun".

"I had a model friend in from Texas and we were up there and I thought it would be interesting," he said.

"Nobody seemed to mind. The girl has a wonderful pair of breasts but to be honest if you've seen the view up there it's pretty breathtaking and I don't think anybody noticed."

He insists that despite the photos being widely featured in the media, he has made no money from their use.

"I am a photographer by trade but at that moment it wasn't really a commercial situation by any means," he said.

"The main grounds for their lawsuit is that somehow I have taken from them by using these commercially which makes no sense to me because it's clearly not the case."

It is the latest in a series of topless photo controversies for the photographer, who was kicked out of a hip restaurant in the city's East Village last year after staging an impromptu photo shoot with the same model.

The Empire State Building owners say the lawsuit is justified because Henson's actions damaged the building's "business and reputation as a safe and secure family friendly tourist attraction".

Henson says a million-dollar lawsuit is extreme.

"I speculated and I couldn't really think about the logic behind it but for some reason I imagined somebody got drunk last night and said 'you know, let's sue this guy for a million dollars, why not?'," he said.