Before the enactment of Sections 50 and 51 of the New York Civil Rights Law, the New York state courts did not recognize any of the privacy torts. The legislature passed the statutes in direct response to the decision in Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902). To state a valid cause of action for violations of Section 50 and 51 of the New York Civil Rights Law, a plaintiff must allege that: (1) defendants used his or her image; (2) his or her image or likeness was used for commercial and business purposes (as opposed to being used in matters relating to legitimate public interest); and (3) that the use of his or her image was unauthorized without plaintiff’s consent.1
New York courts have consistently held that these statutes are to be “narrowly construed” and “strictly limited” to “nonconsensual commercial appropriations of the name, portrait or picture of a living person.”2 The “newsworthiness exception,” which is a question of law for the courts, is “broadly construed to include, ‘not only descriptions of actual events, but also articles concerning political happenings, social trends, or any subject of public interest.’”3 The courts have explained that “[w]hether an item is newsworthy depends solely ‘on the content of the article’—not the publisher’s ‘motive to increase circulation.’”4
New York courts also apply an “incidental use” exception, under which the use of the plaintiff’s image is “fleeting” or “de minimus” in the broader context of the medium at issue, e.g. book, film, etc.5
b. Text of Statutes
1) N.Y. Civ. Rights Law § 50 – Right of privacy
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.
2) N.Y. Civ. Rights Law § 51 – Action for injunction and for damages
Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. But nothing contained in this article shall be so construed as to prevent any person, firm or corporation from selling or otherwise transferring any material containing such name, portrait, picture or voice in whatever medium to any user of such name, portrait, picture or voice, or to any third party for sale or transfer directly or indirectly to such a user, for use in a manner lawful under this article; nothing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; and nothing contained in this article shall be so construed as to prevent any person, firm or corporation from using the name, portrait, picture or voice of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith; or from using the name, portrait, picture or voice of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith. Nothing contained in this section shall be construed to prohibit the copyright owner of a sound recording from disposing of, dealing in, licensing or selling that sound recording to any party, if the right to dispose of, deal in, license or sell such sound recording has been conferred by contract or other written document by such living person or the holder of such right. Nothing contained in the foregoing sentence shall be deemed to abrogate or otherwise limit any rights or remedies otherwise conferred by federal law or state law.
1) D’Andrea v. Rafla-Demetrious, 972 F. Supp. 154 (E.D.N.Y. 1997)
Procedural Posture: Defendants moved for judgment as a matter of law on plaintiff former resident’s claim for invasion of privacy arising from publication of photograph in hospital’s residency brochure.
Law: N.Y. Civ. Rights Law §§ 50-51
Facts: Plaintiff was a resident in the hospital between 1986 and 1989, and he agreed to be photographed for a brochure discussing the hospital’s medical internships and residencies. Although he noted that he wanted to be consulted prior to a publication of his photograph, he did not object when his photo was published in the 1989 brochure. He only brought this claim based on both the 1989 and 1992 brochures when he raised other related claims for tortious interference against the hospital and his former program coordinator.
Outcome: The court granted the motion for judgment as a matter of law under the “incidental use” doctrine because the use of the plaintiff’s photograph in the brochure “was unquestionably incidental to the main purpose of the document, i.e., to provide information about Methodist’s programs to prospective interns and residents. His photograph did not provide any information about the curriculum or opportunities available at Methodist. To the contrary, the testimony of Dr. Hill was that D’Andrea’s photograph was selected from among many by an independent brochure designer (who was not otherwise associated with the hospital) for the purpose of filling up space on a page. D’Andrea was one of 42 people included in such photographs).”6 The court also noted that the facts that some colleagues could recognize his photograph was irrelevant, and regardless, “the mere fact that the subject of an advertisement might be recognizable does not preclude application of the incidental use doctrine.”7
Special Notes: The parties’ dispute led to three separate cases referenced herein; the other two cases are cited for tortious interference and prima facie tort.8
Outcome: The court dismissed plaintiff’s claim for relief under the newsworthiness exception. The court then dismissed plaintiff’s remaining claims for unjust enrichment and quantum meruit because “under New York law, common law claims for unjust enrichment related to unauthorized use of a person’s image or likeness are subsumed under §§ 50-51.”9
Special Notes: Applying the newsworthiness exception to §§ 50-51.
3) Candelaria v. Spurlock, No. 08-1830, 2008 WL 2640471 (E.D.N.Y. July 3, 2008)
Procedural Posture: Considering motion to dismiss by plaintiff, a McDonald’s employee, alleging claims under NY Civil Rights Law §§ 50-51, arising from her appearance in 3-4 seconds of “Super Size Me,” a documentary film about the dangers of fast food directed by defendant.
Law: N.Y. Civ. Rights Law §§ 50-51
Facts: Plaintiff, a McDonald’s employee featured in 3-4 seconds of “Super Size Me” without her consent regarding the unavailability of nutritional information to McDonald’s patrons. She alleged that she never consented to the use of her image, and that the defendant had unlawfully used hidden cameras to capture her image.
Outcome: The court dismissed the suit because both the “newsworthiness” and the “incidental use” exceptions applied. The movie was newsworthy because it focused on a “genuine newsworthy issue,” and plaintiff’s appearance in 3-4 seconds was merely “incidental” to the film. Moreover, New York courts have interpreted the law to permit the use of a plaintiff’s image even where the plaintiff is unaware, so the use of “hidden cameras” was irrelevant. Further, plaintiff was filmed in a McDonald’s where she had no viable expectation of privacy: “Here, plaintiff was not filmed in her home or any other location in which she could reasonably be expected not to be filmed. She was at the counter of a McDonald’s, meeting dozens if not hundreds of members of the public in the course of her shift every day. She had no reasonable expectation of privacy while doing so.”10
Special Notes: Applying the “newsworthiness” and “incidental use” exceptions.
4) Messenger v. Gruner + Jahr Printing & Publ’g, 727 N.E.2d 549 (N.Y. 2000)
Procedural Posture: On certification from the Second Circuit regarding the following issue: “May a plaintiff recover under N.Y. Civ. Rights Law §§ 50-51 where the defendant used the plaintiff’s likeness in a substantially fictionalized way without the plaintiff’s consent, even if the defendant’s use of the image was in conjunction with a newsworthy column?”
Law: N.Y. Civ. Rights Law §§ 50-51
Facts: Plaintiff posed for photos for Young and Modern (“YM”) magazine without obtaining her parents’ consent when she was only 14 years old. The magazine published a column in a letter-to-the-editor in which the speaker, a 14-year-old girl, asked for advice about what to do after she had accidentally gotten drunk and had sex with her 18-year-old boyfriend and two of his friends. The photographs of plaintiff juxtaposed the column and appeared to illustrate it. Plaintiff sued for relief, alleging that the juxtaposition implied that plaintiff had authored the letter.
Outcome: The court answered the certified question in the negative and determined that plaintiff could not bring her claim. The court explained that by extending a “fictionalization” exception to the newsworthiness exception to a newsworthy article to a situation like that at issue here, “liability under Civil Rights Law § 51 becomes indistinguishable from the common-law tort of false light invasion of privacy.”11
5) Hurwitz v. United States, 884 F.2d 684 (2d Cir. 1989)
Procedural Posture: On appeal from lower court decision dismissing claim for invasion of privacy on statute of limitations grounds.
Law: Invasion of privacy
Facts: Plaintiff sued under the Federal Tort Claims Act for invasion of his privacy allegedly occurring when the Government opened a letter he had sent an acquaintance in the Soviet Union. He learned of the “invasion” thirteen years after the incident, when he later requested his CIA file under the Privacy Act of 1974.
Outcome: The court affirmed dismissal on the grounds that there is no common law invasion of privacy claim and that plaintiff “failed to state a cause of action recognized under New York law.”12
Special Notes: Because New York courts do not recognize a common law action for invasion of the right of privacy, “the unauthorized opening and copying of another’s mail does not give rise to an invasion of privacy claim in New York, whether it is styled ‘intrusion’ or otherwise.”13
6) Stephano v. News Group Publ’n, Inc., 474 N.E.2d 580 (N.Y. 1984)
Procedural Posture: On appeal from lower court order granting defendant’s motion for summary judgment and dismissing plaintiff’s complaint.
Law: N.Y. Civ. Rights Law §§ 50-51
Facts: Plaintiff, a professional model, sued defendant for a violation of his right to privacy, alleging that defendant used his picture for trade or advertising purposes without his consent. Plaintiff agreed to model for one magazine article, but he was featured in a later article as well. He sought $350,000 in damages for the alleged violation.
Outcome: The court affirmed the dismissal of plaintiff’s suit because the publication of the photograph was protected by the newsworthiness exception to the law. The court rejected plaintiff’s argument that the photograph did not depict a newsworthy event because it was a posed picture of a professional model taken at a photographic session staged by the defendant. The court explained, “the event or matter of public interest which the defendant seeks to convey is not the model’s performance, but the availability of the clothing item displayed. A fashion display is, of necessity, posed and arranged. Obviously, the picture of the jacket does not lose its newsworthiness simply because the defendant chose to employ a person to model it in a controlled or contrived setting.”14 Moreover, the court noted that the fact that the magazine published the photo to increase its circulation was a nonissue because “[a] contrary rule would unreasonably and unrealistically limit the exception to nonprofit or purely altruistic organizations which are not the only, or even the primary source of information concerning newsworthy events and matters of public interest.”15
7) Simon v. Time Warner Cable, Inc., 918 N.Y.S.2d 400 (N.Y. Gen. Term 2010)
Procedural Posture: Plaintiff sued defendants, among them, Idea Village and Blue Moon Studios for unjust enrichment seeking $100,000 compensatory damages, costs and punitive damages for the alleged illegal use of his image without his permission. Defendants moved to dismiss all claims for failure to state a cause of action and for lack of jurisdiction.
Law: N.Y. Civ. Rights Law §§ 50-51
Facts: Plaintiff had a Talent Agreement with Blue Moon Studios for use of his image and participated in an infomercial for a razor for $1500. Plaintiff argued that after the agreement had expired, he discovered that his image was still being used on television commercials, on the internet, and on product packaging in New York and throughout the United States. He sent all of the defendants an invoice for the use of his image and certain defendants sent him a check, while others did not. Blue Moon Studios and Idea Village asserted that plaintiff had no cause of action because under the Talent Agreement, plaintiff “irrevocably” assigned his rights to his likeness to them. Defendants also argued that the court had no jurisdiction over them because they are both New Jersey companies without agents/offices in New York, the contract was negotiated in New Jersey, and the commercial was produced in New Jersey. The court dismissed Blue Moon Studios as a defendant for lack of jurisdiction, but denied the remainder of the motion to dismiss because plaintiff alleged all of the elements required to establish a cause of action for violation of Civil Rights Law against the remaining defendants.
Outcome: The court granted the motion to dismiss as to Blue Moon Studios, but allowed the rest of the action to proceed.
Special Notes: Plaintiff’s complaint alleged that “after the Usage Term expired, plaintiff discovered that his Images were being used in television and internet advertisements, without plaintiff’s prior knowledge or authorization . . .” and that he informed Idea Village “directly or indirectly through defendant Ingrid, of the unauthorized use and/or assignment of the Images.”16 The court held that “[w]hen viewing plaintiff’s allegations as true, as the Court must on a motion to dismiss, plaintiff has alleged all of the elements required to establish a cause of action for violation of the Civil Rights Law as against Idea Village.”17
8) Gallon v. Hustler Magazine, 732 F. Supp. 322 (N.D.N.Y. 1990)
Procedural Posture: In addendum to earlier opinion, court considered plaintiff’s request for a damage award of $30K for persistent mental anguish arising from publication of nude photograph without her consent
Law: N.Y. Civ. Rights Law §§ 50-51
Facts: Plaintiff was a college student when her ex-lover took photographs of her in the nude without her consent. He later sold them to Hustler Magazine for their “Beaver Hunt” section, which features amateur photographs. Hustler claimed it ensured accuracy and legitimacy of releases before publication, but the evidence did not support a finding that the procedures were adequate.18 Regardless, “it [was] obvious that the research department did not even follow its own procedures in an attempt to verify the validity of the release in question. Although Hustler magazine had been constructively put on notice of deficiencies in its verification process. . . they did virtually nothing to alter their verification procedures regarding the screening of submissions to the Beaver Hunt section of the magazine.”19
Outcome: The court awarded the plaintiff $30K in damages, but held that defendant’s actions were not so “wanton” and willful that plaintiff should recover punitive damages.20
9) Garis v. Uncut-RawTV, Inc., No. CV06-503, 2011 WL 4404035 (E.D.N.Y. July 5, 2011)
Procedural Posture: Following district court’s entry of a default judgment for plaintiff, district court referred case to magistrate judge for an inquest to determine and recommend what damages, if any, were appropriate (including attorneys’ fees).
Law: N.Y. Civ. Rights Law §§ 50-51
Facts: Plaintiff Garis had a sexual encounter with defendant Sullivan, and he taped the encounter without her permission. He later, copied, distributed and sold the videotape without her consent, causing her severe emotional distress. The default judgment was entered against defendants where they failed to answer or otherwise move against plaintiff’s complaint. Plaintiff sought $1 M in damages, injunctive relief, and attorneys’ fees.
Outcome: The court granted plaintiff $50,000 in damages and no attorneys’ fees. Although plaintiff established that defendants’ actions had caused her emotional distress, the court found $1 M excessive because, “[t]he materials submitted by plaintiff do not indicate that plaintiff’s depression was severe. Furthermore, there were other contributing factors to plaintiff’s mental state [e.g., the death of her cousin]. Finally, because plaintiff sought treatment at a free clinic, there are no out-of-pocket expenses to be recovered as a result of her emotional distress.”21 The court granted an injunction because plaintiff “met her burden to establish success on the merits of her claim as is required for injunctive relief” and would be irreparably harmed by the continued distribution of her image.22 The court denied attorneys’ fees only because plaintiff had failed to present any facts or data to back up her request (e.g. no time sheets, etc.).
d. Practice Pointers
The New York statute is designed to enforce the right to be left alone. However, there are exemptions that reflect concern for “free dissemination of news and other matters of interest to the public,” and for “incidental uses” of a plaintiff’s image.23
The New York courts broadly construe the “newsworthiness” exception, and “[t]he exception applies not only to reports of political happenings and social trends . . . and to news stories and articles of consumer interest such as developments in the fashion world . . . but to matters of scientific and biological interest such as enhanced fertility and in vitro fertilization as well. Moreover, questions of ‘newsworthiness’ are better left to reasonable editorial judgment and discretion; judicial intervention should occur only in those instances where there is ‘no real relationship’ between a photograph and an article or where the article is an ‘advertisement in disguise.’”24
Although “[l]egitimate countervailing social needs may warrant some intrusion despite an individual’s reasonable expectation of privacy and freedom from harassment. . . the interference allowed may be no greater than that necessary to protect the overriding public interest.”25
The statute of limitations for violations of N.Y. Civil Rights Law §§ 50 & 51 is one year, and it begins to run on the first day of publication, and is not renewed for subsequent republications.26 However, “[t]he single publication rule does not apply where an item is published initially, but is then republished, not merely as a belated release of the original publication, but as a republication.”27 Courts considering whether a republication has occurred look at whether the item at issue has been “modified and revised” and also consider the type of merchandise on which the plaintiff’s image is used, etc.28 In Zoll, the court determined as a matter of law that the re-airing of a 1978 commercial featuring plaintiff as a 2000 re-release was not a republication where the commercial appeared in its original form.29
New York courts refuse to recognize “efforts to present statutory privacy claims as common law claims where the claim is based on alleged unauthorized use of a plaintiff’s image or likeness and have refused to exalt form over substance when a plaintiff attempts to do so. . . A number of cases have squarely held that common law unjust enrichment claims for unauthorized use of an image or likeness are subsumed by the Civil Rights Law. . . It seems clear that common law trespass claims are likewise subsumed by the Civil Rights Law . . . [since] New York does not recognize a common law property right in one’s image or likeness.”30
- 1. Simon v. Time Warner Cable, Inc., No. 108207/10, 2010 WL 4159526, at *5 (N.Y. Sup. Ct. Sept. 21, 2010) (citation omitted).
- 2. Lemerond v. Twentieth Century Fox Film Corp., No. 07 Civ. 4635, 2008 WL 918579, at *2 (S.D.N.Y. Mar. 31, 2008) (citing Messenger v. Gruner + Jahr Printing & Publ’g, 706 N.Y.S.2d 52, 54-55 (N.Y. 2000)); but see Beverley v. Choices Women’s Med. Ctr., Inc., 532 N.Y.S.2d 400, 404 (N.Y. App. Div. 1988) (holding that calendar created by abortion facility as part of “advertising budget” was unauthorized use of plaintiff’s picture for advertising purposes within the meaning of state statute prohibiting the appropriation of names/likenesses for appropriator’s benefit).
Accordingly, New York courts observe a “newsworthiness” exception for “the nonconsensual use of a plaintiff’s image to depict ‘newsworthy events or matters of public interest.’” Id.
- 3. Id.
- 4. Gruner + Jahr Printing, 706 N.Y.S.2d at 55.
- 5. Candelaria v. Spurlock, No. 08-1830, 2008 WL 2640471, at *3 (E.D.N.Y. July 3, 2008).
- 6. D’Andrea v. Rafla-Demetrious, 972 F. Supp. 154, 157 (E.D.N.Y. 1997).
- 7. Id.
- 8. See supra at 27, 28, 36 & 37.
2) Lemerond v. Twentieth Century Fox Film Corp., No. 07 Civ. 4635, 2008 WL 918579 (S.D.N.Y. Mar. 31, 2008)
Procedural Posture: Considering motion to dismiss by plaintiff, alleging claims under NY Civil Rights Law §§ 50-51, as well as claims for unjust enrichment and quantum meruit, arising from his involvement in a scene in the movie Borat.
Law: N.Y. Civ. Rights Law §§ 50-51
Facts: Plaintiff sued under NY Civil Rights law for the publication of his image without his consent, after his image was captured in an opening scene of Borat. The question at issue was whether plaintiff’s image was used for “advertising purposes or for the purposes of trade” within the meaning of the statute. The court found that under the strict interpretation of the statute, the alleged violation fell under the newsworthiness exception: “Of course, the movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers. At its core, however, Borat attempts an ironic commentary of ‘modern’ American culture, contrasting the backwardness of its protagonist with the social ills [that] afflict supposedly sophisticated society.”
Lemerond v. Twentieth Century Fox Film Corp., No. 07 Civ 4635, 2008 WL 918579, at *3 (Mar. 31, 2008).
- 9. Id.
- 10. Candelaria, 2008 WL 2640471 at *5.
- 11. Gruner + Jahr Printing, 727 N.E.2d at 557.
- 12. Hurwitz v. United States, 884 F.2d 684, 686 (2d Cir. 1989)
- 13. Id. at 687.
- 14. Stephano v. News Group Publ’n, Inc., 474 N.E.2d 580, 585 (N.Y. 1984)
- 15. Id.
- 16. Id.
- 17. Id.
- 18. Gallon v. Hustler Magazine, 732 F. Supp. 322, 325 (N.D.N.Y. 1990).
- 19. Id.
- 20. Id. at 327.
- 21. Garis v. Uncut-RawTV, Inc., No. CV-06-5031, 2011 WL 4404035, at *4 (E.D.N.Y. July 5, 2011).
- 22. Id. at *3.
- 23. Beverley, 532 N.Y.S.2d at 404 (noting that the newsworthiness exemption “reflects Federal and State constitutional concerns for free dissemination of news and other matters of interest to the public”) (citation omitted). In Beverley, the court found that the calendar depicting plaintiff without her consent was an unauthorized use of plaintiff’s picture because the calendar was mainly an “advertisement for [defendant abortion facility]” even though it served an “educational” or “informative purpose.” Id.
- 24. Finger v. Omni Publ’n Int’l, Ltd., 566 N.E.2d 141, 144 (N.Y. 1990) (dismissing civil rights claim of family depicted in magazine photograph accompanying feature article on a recent study finding that caffeine may increase fertility).
- 25. Galella v. Onassis, 487 F.2d 986, 995 (2d Cir. 1973) (finding that photographer’s actions in attempting to capture photographs of Jacqueline Onassis and the Kennedy children were “obtrusive and intruding” and “far beyond the reasonable bounds of news gathering,” such that they were not protected by the First Amendment).
- 26. See Zoll v. Jordache Enter., No. 01 Civ. 1339 (CSH), 2002 WL 31873461, at *7 (S.D.N.Y. Dec. 24, 2002) (explaining the “single publication rule” under New York law).
- 27. Id. at *8.
- 28. Id. at *10.
- 29. Id. at *11.
- 30. Id. at *16 (noting that a person’s property right in his or her likeness or image “exists only pursuant to the statutory scheme created by the Civil Rights Law,” and without a common law property right to one’s image or likeness, no common law trespass claim can lie).