Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379 (1984)
Under New York Civil Rights Law §§ 50 and 51, a plaintiff’s likeness is identifiable if a person familiar with the plaintiff could recognize them from the photograph or representation, even if the face is not visible.
Summary
Susan and Samantha Cohen sued Herbal Concepts, Inc. for using a photograph of them, taken without their consent, in an advertisement for a cellulite treatment. The photograph depicted them nude from the back. The New York Court of Appeals addressed whether the photograph was sufficiently identifiable to sustain a claim under New York Civil Rights Law §§ 50 and 51, which prohibits the use of a person’s likeness for advertising purposes without consent. The Court of Appeals held that the plaintiffs were identifiable because a jury could find that someone familiar with them could recognize them from the advertisement based on their hair, bone structure, body contours, stature, and posture.
Facts
Susan Cohen and her daughter Samantha were photographed without their consent while bathing in a stream on private property. James Krieger, the photographer, sold the photos to Herbal Concepts, Inc. Herbal Concepts used one of the photos in an advertisement for a cellulite treatment called Au Naturel, which appeared in several magazines. Ira Cohen, Susan’s husband and Samantha’s father, recognized his wife and daughter in the advertisement while reading one of the magazines.
Procedural History
The Cohens sued Herbal Concepts, Inc., James Krieger, and the publishers of the magazines for violating § 51 of the Civil Rights Law, defamation, loss of services, and loss of consortium. Special Term granted summary judgment for the defendants on all claims. The Appellate Division reversed the grant of summary judgment on the privacy claims under § 51 and reinstated those causes of action. Hearst and Conde Nast were granted leave to appeal to the Court of Appeals.
Issue(s)
Whether a photograph of nude plaintiffs, mother and child, which shows their bodies full length as viewed from a position behind and to the right of them, and which does not show their faces, reveals sufficiently identifiable likenesses to withstand defendants’ motions for summary judgment.
Holding
Yes, because a jury could find that someone familiar with the persons in the photograph could identify them by looking at the advertisement.
Court’s Reasoning
The Court of Appeals held that to sustain a claim under § 51 of the Civil Rights Law, the plaintiff must be identifiable from the objectionable material itself. The court clarified that this does not require the plaintiff’s face to be visible. The statute protects a person’s identity, not merely a property interest in their name, portrait, or picture. The court stated, “Manifestly, there can be no appropriation of plaintiff’s identity for commercial purposes if he or she is not recognizable from the picture.”
The court reasoned that whether a photograph presents a recognizable likeness is generally a jury question, unless the plaintiff cannot be identified because of the limited subject matter revealed in the photograph or the quality of the image. The court emphasized the importance of the identifiable characteristics displayed in the advertisement, such as the clarity of the photograph, the extent to which identifying features are visible, and the distinctiveness of those features.
Applying these principles to the case, the court found that the photograph of Susan and Samantha Cohen displayed sufficient identifiable characteristics. The court noted the good quality of the picture, the unobstructed view of the subjects, and the visibility of their hair, bone structure, body contours, stature, and posture. “Considering these factors, we conclude that a jury could find that someone familiar with the persons in the photograph could identify them by looking at the advertisement.” The court also considered Ira Cohen’s affidavit, in which he stated that he recognized his wife and daughter immediately, as prima facie sufficient evidence of identification.
The court distinguished several cases cited by the defendants, noting that in those cases, the photographs either lacked sufficient identifying characteristics or involved fictional characters with only coincidental similarities to the plaintiffs. The court emphasized that in this case, the similarity between the plaintiffs and the persons in the photograph was complete because the plaintiffs were, in fact, the persons in the picture.