New York Law Review

Tag: Civil Rights Law § 51

  • Beverley v. Choices Women’s Medical Center, Inc., 78 N.Y.2d 745 (1991): Use of Physician’s Photo in Calendar is Advertising Purpose

    78 N.Y.2d 745 (1991)

    Using a person’s photograph, name, and professional title in a calendar distributed to promote a for-profit medical services business constitutes use for “advertising purposes” under New York Civil Rights Law § 51, and is not protected by the public interest/newsworthiness or public figure doctrines.

    Summary

    Dr. Cordia Beverley sued Choices Women’s Medical Center for using her photo, name, and title in a promotional calendar without her consent, alleging violation of New York Civil Rights Law § 51. The calendar, distributed to patients and referring physicians, featured Choices’ name and advertised its medical services. The Court of Appeals affirmed the lower courts’ decision that Choices used Beverley’s image for advertising purposes, thus violating her right to privacy. The Court rejected Choices’ arguments that the calendar’s theme of women’s rights or Beverley’s status as a physician provided an exception to the statute.

    Facts

    Choices, a for-profit medical center, created a calendar for 1985 promoting its services related to family planning. Choices distributed 10,000 copies free of charge. Each page featured Choices’ logo, address, and phone number, along with positive statements about the center’s medical care. The calendar highlighted historical dates and figures related to the women’s movement. A photo of Dr. Beverley taken at a 1983 women in medicine conference was used for June, without her consent. Dr. Beverley, an internal medicine and gastroenterology specialist, had no affiliation with Choices.

    Procedural History

    Dr. Beverley sued Choices for invasion of privacy and defamation. The Supreme Court granted summary judgment to Dr. Beverley on the privacy claim and denied Choices’ motion to dismiss the defamation claim. The Appellate Division modified, dismissing the defamation claim, and remitted for a trial on damages for the privacy claim. After the trial on damages, the Supreme Court awarded Dr. Beverley $50,000 in compensatory and $25,000 in punitive damages. The Appellate Division affirmed, and the Court of Appeals granted Choices leave to appeal.

    Issue(s)

    Whether Choices’ use of Dr. Beverley’s photo, name, and professional title in its promotional calendar constituted use for “advertising purposes” within the meaning of Civil Rights Law § 51.

    Whether Choices could avoid liability under Civil Rights Law § 51 by arguing the calendar addressed a matter of public interest (the women’s movement) or that Dr. Beverley was a limited-purpose public figure.

    Holding

    Yes, because the calendar, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of Choices’ medical services. The pervasive placement of Choices’ information and laudatory statements about its services demonstrated its advertising purpose.

    No, because Choices is a commercial advertiser and cannot unilaterally neutralize the statutory privacy protection by wrapping its advertising message in the cloak of public interest. Dr. Beverley was not a public figure in this context, and the use of her image was a deliberate, later publication in advertising literature, not a simultaneous reporting of a current event.

    Court’s Reasoning

    The Court reasoned that Choices’ calendar was clearly an advertisement because of the prominent placement of its name, logo, address, and positive endorsements. The Court emphasized the distinction between media enterprises reporting on newsworthy events and commercial advertisers using images for direct promotional purposes. The court stated, “[a] picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise.” Because Choices’ calendar was overtly an advertisement, the public interest exception did not apply. Further, the court distinguished this case from those involving the reporting of current events, noting that the use of Beverley’s image was a “deliberate later publication of a no longer current news item in an individual firm’s advertising literature”. The court concluded that Choices knowingly violated Dr. Beverley’s statutory privacy rights, thus affirming the punitive damages award.

  • Albert v. New York, 68 N.Y.2d 697 (1986): Written Consent Requirement for Privacy Actions Under Civil Rights Law § 51

    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.

  • Welch v. Mr. Christmas Inc., 57 N.Y.2d 143 (1982): Scope of Consent in Privacy Rights

    Welch v. Mr. Christmas Inc., 57 N.Y.2d 143 (1982)

    A defendant’s immunity from a claim for invasion of privacy is limited to the scope of the consent provided, and any use exceeding that consent constitutes a violation of New York Civil Rights Law § 51.

    Summary

    Welch sued Mr. Christmas Inc. for violating his right to privacy under New York Civil Rights Law § 51 by using his photographs beyond the scope of his consent. Welch had placed a limitation on the consent form after the photographs were taken. The court held that because the statute requires written consent, Welch had the right to limit his consent in any way he chose, even after the photos were taken, and any use beyond that limited consent constituted a violation. The court reinstated Welch’s claims, emphasizing that the consent defined the boundaries of permissible use.

    Facts

    Welch’s photographs were taken by Mr. Christmas Inc. Subsequently, Welch signed a consent form but added a limitation regarding the use of the photographs. Mr. Christmas Inc. used the photographs in a manner that exceeded the limitations Welch placed on the consent form.

    Procedural History

    The lower court dismissed Welch’s first, third, and fourth causes of action. The Appellate Division affirmed the dismissal. The New York Court of Appeals reversed the Appellate Division’s decision regarding the dismissal of the first, third, and fourth causes of action, reinstating those claims.

    Issue(s)

    Whether a limitation placed on a consent form after photographs are taken, but before the use of those photographs, is effective to limit the scope of consent under Section 51 of the New York Civil Rights Law.

    Holding

    Yes, because Section 51 of the Civil Rights Law requires written consent, and absent estoppel, the timing of the consent does not limit the plaintiff’s right to define the scope of that consent.

    Court’s Reasoning

    The court reasoned that the defendant’s immunity from a privacy claim is “no broader than the consent executed to him.” The court emphasized the plaintiff’s statutory right to limit his consent in any way he deemed proper. The court stated, “Section 51 of the Civil Rights Law requires ‘the written consent’ of such person and, absent facts, not here pleaded, upon which an estoppel could be grounded, the fact that the consent was signed after, rather than before, the photographic session, imposed no limitation upon the absolute right granted plaintiff by the statute to limit his consent in any way he deemed proper or desirable.” Any use of the photographs beyond the granted consent gives rise to a cause of action under Section 51, and the plaintiff is not limited to a contract action. The court relied on its prior holding in Shields v. Gross, emphasizing that consent defines the boundaries of permissible use.

  • Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493 (1978): Sufficiency of Evidence for Punitive Damages in Privacy Rights Violations

    Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493 (1978)

    In a statutory right of privacy case, punitive damages can be awarded if the defendant knowingly used a person’s image for commercial purposes without consent, and the element of ‘knowingly’ can be established through evidence of actual knowledge or reckless disregard for the truth of whether consent was obtained.

    Summary

    A professional model and her daughter sued Hallmark for using their pictures in a publication without written consent, seeking compensatory and punitive damages under New York Civil Rights Law sections 50 and 51. Hallmark argued that the evidence was insufficient to prove it acted “knowingly,” a prerequisite for punitive damages. The Appellate Division agreed, but the Court of Appeals reversed, holding that there was sufficient evidence for a jury to conclude Hallmark acted with reckless disregard after being notified of the lack of consent. The case was remitted to the Appellate Division to determine if the jury’s finding was against the weight of the evidence.

    Facts

    Ken Heyman, a photographer, sold pictures of the plaintiff mother and daughter to Hallmark in June 1971 for use in a publication. Heyman assured Hallmark he had written releases from the plaintiffs. In November 1971, Heyman sought written releases from plaintiffs after selling the photos. On December 8, 1971, plaintiffs’ counsel notified Hallmark that the plaintiffs never consented to the use of their pictures and demanded they cease publication. Hallmark did not reply but asked Heyman for the releases. Heyman did not respond on the advice of his counsel. Hallmark ordered new printings of the publication on December 27, 1971, and February 10, 1972. Plaintiffs commenced an action in late December and served a complaint on February 23, seeking injunctive relief and damages.

    Procedural History

    The plaintiffs sued Hallmark in Supreme Court, seeking injunctive relief, compensatory damages, and punitive damages. The jury found in favor of the plaintiffs and awarded nominal compensatory damages and $50,000 in punitive damages. Hallmark appealed the punitive damages award. The Appellate Division reversed, finding insufficient evidence of knowing use without consent. The Court of Appeals reversed the Appellate Division’s decision and remitted the case for further proceedings.

    Issue(s)

    Whether there was sufficient evidence for the jury to find that Hallmark acted “knowingly” in using the plaintiffs’ pictures without their written consent, thereby justifying an award of punitive damages under Section 51 of the Civil Rights Law.

    Holding

    Yes, because based on the evidence, particularly Hallmark’s continued printing of the pictures after being notified of the lack of consent and after Heyman failed to provide the releases, it was not irrational for the jury to conclude that Hallmark acted with actual knowledge or reckless disregard for the truth.

    Court’s Reasoning

    The Court of Appeals distinguished between a determination that a verdict is against the weight of the evidence and a determination that there is insufficient evidence to support the verdict as a matter of law. The former requires a new trial, while the latter results in a final judgment. To determine whether a verdict is supported by sufficient evidence, the court must decide if there is any valid line of reasoning and permissible inferences that could lead rational people to the conclusion reached by the jury. The court emphasized that “it cannot be correctly said in any case where the right of trial by jury exists and the evidence presents an actual issue of fact, that the court may properly direct a verdict.” The court noted that while Hallmark may not have known about the lack of consent before December 1971, their actions after being notified, including failing to receive confirmation from Heyman and continuing to print the publication, created a question of fact for the jury regarding their knowledge. The Court cited Time, Inc. v. Hill, 385 U.S. 374. The court emphasized that imputation of knowledge may not be avoided by ignoring obvious warning signs and that the Appellate Division had the authority to review the jury’s factual findings to determine if they were in accord with the weight of the evidence. The court stated: “in many instances the imputation of knowledge, and its concomitant responsibility, may not be avoided by the simple expedient of closing one’s eyes, covering one’s ears, and holding one’s breath.”