Albert v. New York, 68 N.Y.2d 697 (1986)

Under Civil Rights Law § 51, written consent is explicitly required for the commercial use of a person’s likeness, and neither oral nor implied consent constitutes a complete defense to a privacy action, although they may mitigate damages.

Summary

This case clarifies the requirement for written consent under New York Civil Rights Law § 51, which governs the commercial use of a person’s likeness. The Court of Appeals held that written consent is mandatory, and neither oral nor implied consent provides a complete defense to a privacy action. However, such consent can be considered in mitigating damages. The court emphasized that any alteration to the written consent requirement must originate from the legislature. The defendant was granted the right to pre-trial disclosure to gather facts relevant to mitigating damages. The action was properly certified as a class action.

Facts

The specifics of the underlying factual scenario are not detailed in this memorandum decision. However, the case involves a privacy action under Civil Rights Law § 51, implying unauthorized commercial use of the plaintiffs’ likenesses. The core dispute revolves around whether oral or implied consent could serve as a defense against the claim.

Procedural History

The lower court granted the plaintiff’s motion for partial summary judgment as to liability, indicating that the defendant had used the plaintiffs’ likenesses without the required written consent. The Special Term certified the action as a class action. The Appellate Division’s order was appealed to the Court of Appeals. The Court of Appeals modified the Appellate Division’s order by granting the defendant’s motion for permission to proceed with pre-trial disclosure, and affirmed the order as modified.

Issue(s)

1. Whether oral or implied consent constitutes a complete defense to a privacy action under Civil Rights Law § 51.

Holding

1. No, because written consent is explicitly required by Civil Rights Law § 51, and any change to that requirement must come from the legislature.

Court’s Reasoning

The Court of Appeals based its decision on a strict interpretation of Civil Rights Law § 51 and relevant precedent. The court explicitly stated that “[w]ritten consent is explicitly required by the statute and any change in that unambiguous requirement must come from the Legislature.” The court cited Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 548-549 to support the principle that statutory changes should come from the legislature, not the courts. While oral or implied consent does not provide a complete defense, the court acknowledged that such consent is available as a partial defense in mitigation of damages, citing Lomax v New Broadcasting Co., 18 AD2d 229. Therefore, the defendant was entitled to pre-trial disclosure to gather facts relevant to the issue of damages. The Court found no abuse of discretion in the Special Term’s certification of the action as a class action.