New York Law Review

Tag: Right of Privacy

  • Nussenzweig v. diCorcia, 9 N.Y.3d 184 (2007): Statute of Limitations for Right of Privacy Claims

    Nussenzweig v. diCorcia, 9 N.Y.3d 184 (2007)

    The single publication rule applies to claims brought under New York Civil Rights Law §§ 50 and 51, meaning the statute of limitations begins to run from the date the offending material is first published, not from the date of discovery.

    Summary

    Photographer Philip-Lorca diCorcia took candid photographs of people in Times Square between 1999 and 2001 without their knowledge. One photograph included Erno Nussenzweig. DiCorcia exhibited and sold the photographs in the fall of 2001. Nussenzweig did not discover the use of his image until March 2005 and subsequently sued, alleging a violation of his statutory right to privacy under Civil Rights Law §§ 50 and 51. The defendants moved for summary judgment, arguing the one-year statute of limitations barred the claim. The New York Court of Appeals held that the single publication rule applied, and the statute of limitations ran from the initial publication date, not the date of discovery, barring Nussenzweig’s claim.

    Facts

    Between 1999 and 2001, Philip-Lorca diCorcia took candid photographs of individuals in Times Square without their consent or knowledge.

    In the fall of 2001, diCorcia exhibited these photographs at an art gallery owned by Pace/MacGill, Inc.

    Pace/MacGill published and sold a catalogue containing images on display, and created limited edition prints of each photograph for sale.

    One of the images was of Erno Nussenzweig.

    Nussenzweig did not learn of the photograph’s use until March 2005.

    Procedural History

    Nussenzweig commenced an action against diCorcia and Pace/MacGill, Inc., alleging violation of Civil Rights Law §§ 50 and 51.

    Defendants moved for summary judgment, arguing the claim was time-barred by the one-year statute of limitations.

    Supreme Court granted the defendants’ motion.

    The Appellate Division affirmed the Supreme Court’s decision and granted leave to appeal to the Court of Appeals, certifying the question of whether the order of the Supreme Court, as affirmed, was properly made.

    Issue(s)

    Whether the single publication rule applies to claims brought under Civil Rights Law §§ 50 and 51, such that the statute of limitations begins to run from the date of the initial publication, or from the date the plaintiff discovers the publication.

    Holding

    Yes, because the policy underlying the single publication rule – to prevent stale claims and protect defendants from defending actions after memories fade and evidence is lost – is equally applicable to statutory right of privacy claims under Civil Rights Law §§ 50 and 51.

    Court’s Reasoning

    The court applied the single publication rule, which states that a cause of action accrues on the date the offending material is first published, citing Gregoire v Putnam’s Sons, 298 NY 119, 125-126 (1948).

    The court reasoned that the policy behind statutes of limitations, as articulated in Gregoire, is to “ ‘spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost’ ” (id. at 125, quoting Chase Securities Corp. v Donaldson, 325 US 304, 314 [1945]).

    The court acknowledged that New York appellate courts have generally applied the single publication rule to statutory right of privacy claims. It cited cases such as E.B. v Liberation Publs., 7 AD3d 566, 567 [2d Dept 2004] and Castel v Sherlock Corp., 159 AD2d 233 [1st Dept 1990], while also noting the exception in Russo v Huntington Town House, 184 AD2d 627, 628 [2d Dept 1992], which held the statute of limitations runs from the date of the most recent violation.

    The Court found that the publishing event occurred no later than the fall of 2001, more than one year before Nussenzweig commenced suit. Therefore, his claims were time-barred.

  • 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.

  • Arrington v. New York Times Co., 55 N.Y.2d 433 (1982): Newsworthiness Exception to Privacy Rights

    55 N.Y.2d 433 (1982)

    The use of a person’s photograph in connection with a newsworthy article or matter of public interest does not constitute use for trade or advertising purposes under New York Civil Rights Law §§ 50 and 51, even if the publication seeks to increase circulation and profits, unless the photograph lacks a real relationship to the article or the article is an advertisement in disguise.

    Summary

    A professional model sued New York Magazine for using his photo in its “Best Bets” column without his consent, claiming violation of his statutory right to privacy and common-law right of publicity. The magazine featured the model wearing a bomber jacket, noting its price and availability at certain stores. The Court of Appeals held that the magazine’s use of the model’s photo fell under the “newsworthiness exception” to the Civil Rights Law because the article concerned a matter of public interest—fashion—and was not an advertisement in disguise. The Court clarified that in New York, the right of publicity is encompassed within the statutory right to privacy, thus no separate common law claim exists.

    Facts

    Plaintiff, a professional model, agreed to model for a fall fashion article in New York Magazine. One photo from the session was used in the magazine’s “Best Bets” column, featuring a bomber jacket, its price (approximately $225), and where it could be purchased (Barney’s, Bergdorf Goodman, Bloomingdale’s). Plaintiff contended that he only agreed to model for the September 7 fall fashion article and did not consent to the August 31 “Best Bets” column use.

    Procedural History

    The trial court granted summary judgment to the defendant, New York Magazine. The Appellate Division reversed, finding factual questions regarding whether the photograph was used for trade purposes and whether the article was an advertisement in disguise. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order, dismissing the complaint.

    Issue(s)

    1. Whether the defendant used the plaintiff’s picture for trade or advertising purposes within the meaning of New York Civil Rights Law §§ 50 and 51 when it published his picture in the “Best Bets” column without his consent?
    2. Whether New York recognizes a common-law right of publicity independent of the statutory right to privacy under New York Civil Rights Law §§ 50 and 51?

    Holding

    1. No, because the article was a newsworthy item of public interest and was not an advertisement in disguise.
    2. No, because in New York, the right of publicity is encompassed within the statutory right to privacy under the Civil Rights Law.

    Court’s Reasoning

    The Court reasoned that New York’s statutory right to privacy, as codified in Civil Rights Law §§ 50 and 51, exclusively governs privacy rights in the state. The Court acknowledged the historical context originating from Roberson v. Rochester Folding Box Co., leading to the enactment of the statute to protect individuals from unauthorized commercial exploitation of their likeness. While the statute applies broadly to any unauthorized use of a person’s image for trade or advertising, it contains an exception for newsworthy events or matters of public interest, reflecting constitutional concerns for freedom of the press. This “newsworthiness exception” extends to consumer interest articles, including fashion news. The Court stated, “[A] ‘picture illustrating an article on a matter of public interest is not considered used for the purposes 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.’” The Court found the bomber jacket article to be a newsworthy item, even though the photograph was posed, because the public interest lay in the availability of the clothing item itself. The fact that the magazine sought to increase circulation and profits was not determinative. The plaintiff’s claim that the article was an advertisement in disguise, based on the inclusion of price and store information and the fact that those stores had previously advertised in the magazine, was deemed speculative and insufficient to overcome summary judgment. The Court also rejected the notion of a separate common-law right of publicity in New York, holding that the statute encompasses such rights.

  • Shields v. Gross, 58 N.Y.2d 338 (1983): Enforceability of Parental Consent Under Civil Rights Law §§ 50-51

    Shields v. Gross, 58 N.Y.2d 338 (1983)

    Under New York Civil Rights Law §§ 50-51, a written consent for the use of a minor’s image obtained from the minor’s parent or guardian is binding and cannot be disaffirmed by the minor, precluding a subsequent action for invasion of privacy based on that use.

    Summary

    Brooke Shields, a child model, sought to disaffirm consents her mother had signed allowing photographer Gary Gross to use nude photos of her. Shields claimed that the consents were invalid, and Gross’s continued use of the photos violated her right to privacy. The New York Court of Appeals held that because Civil Rights Law §§ 50 and 51 specifically allow a parent or guardian to consent on behalf of a minor, such consent is binding and cannot be disaffirmed. This decision balances the rights of minors with the needs of industries that employ them, providing certainty to those who rely on parental consent.

    Facts

    When Brooke Shields was 10 years old, her mother, Teri Shields, signed consents allowing photographer Gary Gross to take nude photographs of Brooke in a bathtub for a Playboy Press publication. The consents were unrestricted regarding time and use. The photos were used in “Sugar and Spice” and other publications, including a large display in New York City. Shields later used the photos in a book about herself, with her mother obtaining authorization from Gross. Years later, disturbed by the publication of the photos in a French magazine, Shields attempted to buy the negatives and then sued Gross, seeking to prevent further use of the photos.

    Procedural History

    The trial court initially granted a preliminary injunction but later dismissed the complaint, finding the consents unrestricted. However, the court permanently enjoined Gross from using the photographs in pornographic publications. The Appellate Division modified the judgment, enjoining Gross from using the pictures for advertising or trade. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether an infant model may disaffirm a prior unrestricted consent executed on her behalf by her parent and maintain an action pursuant to section 51 of the Civil Rights Law against her photographer for republication of photographs of her?

    Holding

    No, because under Civil Rights Law §§ 50 and 51, a written consent obtained from a minor’s parent or guardian is binding and cannot be disaffirmed by the minor.

    Court’s Reasoning

    The Court of Appeals reasoned that New York’s Civil Rights Law §§ 50 and 51, enacted in response to the lack of a common-law right to privacy, created a statutory right to privacy. The statute explicitly allows a parent or guardian to provide written consent on behalf of a minor, which then bars a subsequent civil action. The court emphasized that the Legislature has the power to abrogate an infant’s common-law right to disaffirm contracts, and in this case, it did so by creating a specific statutory framework for consent in the context of privacy rights. The court noted the practical implications for industries employing child models: “Sections 50 and 51 as we interpret them serve the same purpose, to bring certainty to an important industry which necessarily uses minors for its work.” The court distinguished child performers from child models, noting that the procedural requirements for court approval of contracts for performing artists under General Obligations Law § 3-105 are impractical for the typical child model’s career. The court stated: “Given the nature of the employment, it is entirely reasonable for the Legislature to substitute the parents’ judgment and approval of what is best for their child for that of a court.” The court further clarified that if a parent wishes to limit the publicity of their child, they must specify the limitations in the initial consent. Citing Welch v. Mr. Christmas, the court noted, “a defendant’s immunity from a claim for invasion of privacy is no broader than the consent executed to him.”

  • Andretti v. Rolex Watch U.S.A., Inc., 56 N.Y.2d 284 (1982): Written Consent and Parol Evidence in Right of Privacy Claims

    56 N.Y.2d 284 (1982)

    In a claim for violation of the right to privacy under New York Civil Rights Law sections 50 and 51, summary judgment is inappropriate where there is a factual dispute as to whether written consent to use a person’s name or likeness for advertising purposes was given, and parol evidence is admissible to clarify the intent behind an equivocal writing.

    Summary

    Mario Andretti, a race car driver, sued Rolex for using his name and picture in advertisements without his written consent, violating New York Civil Rights Law § 51. Andretti had accepted a Rolex watch and acknowledged membership in the “Rolex Club” in writing, also sending a signed photo to the Rolex president. The issue was whether this membership constituted consent for Rolex to use his likeness in advertisements. The Appellate Division granted summary judgment to Andretti. The New York Court of Appeals reversed, holding that a factual issue existed regarding the scope of Andretti’s consent, and parol evidence could be used to clarify his intent, making summary judgment inappropriate.

    Facts

    Mario Andretti was a well-known race car driver. Rolex published two advertisements featuring Andretti’s name and picture. Andretti had previously accepted a Rolex watch and acknowledged his membership in the “Rolex Club” in writing. He also sent a photograph of himself to the president of Rolex with a handwritten inscription indicating his pleasure at being a member of the “Rolex Club”. Andretti claimed he never gave written consent for Rolex to use his name and likeness in advertisements, as required by New York Civil Rights Law § 51.

    Procedural History

    Andretti sued Rolex in the Supreme Court, seeking damages under Section 51 of the Civil Rights Law. The Supreme Court denied Andretti’s motion for partial summary judgment on liability. The Appellate Division reversed the Supreme Court’s decision and granted Andretti’s motion for partial summary judgment. Rolex appealed to the New York Court of Appeals.

    Issue(s)

    Whether summary judgment is appropriate when there is a factual dispute regarding the scope of written consent to use a person’s name and likeness in advertising, and whether parol evidence is admissible to clarify the intent behind the written consent.

    Holding

    No, because a factual issue exists as to what membership in the Rolex Club entailed, i.e., whether plaintiff thereby consented to the use of his name and likeness in Rolex advertisements. Summary judgment for the plaintiff on the issue of liability was therefore improper.

    Court’s Reasoning

    The court reasoned that Section 51 of the Civil Rights Law requires prior written consent for the use of an individual’s name or likeness for advertising purposes. While Andretti acknowledged his membership in the “Rolex Club” in writing and sent a signed photo to Rolex, the court found that it was unclear whether this membership encompassed consent to use his name and likeness in advertisements. The court stated that “Factual issues exist as to what membership in the Rolex Club entailed, i.e., whether plaintiff thereby consented to the use of his name and likeness in Rolex advertisements.” The court emphasized that parol evidence may be introduced to establish that an equivocal writing signed by the subject of the photograph was intended as the expression of consent contemplated by the statute to the use of the name. Therefore, because there was a factual dispute regarding the scope of Andretti’s consent, summary judgment was inappropriate. The court referenced Arrington v New York Times Co., 55 NY2d 433, 439 to support its determination of the law.

  • 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.”