Brinkley v. Casablancas

• Citation: 80 A.D.2d 428,438 N.Y.S.2d 1004
• Parties: , 212 U.S.P.Q. 783, 7 Media L. Rep. 1457 Christie BRINKLEY, Plaintiff-Appellant, v. John CASABLANCAS et al., Defendants-Respondents.
• Decision Date: 14 May 1981
• Court: New York Supreme Court Appellate Division

Page 1004

438 N.Y.S.2d 1004

80 A.D.2d 428, 212 U.S.P.Q. 783, 7

Media L. Rep. 1457

Christie BRINKLEY, Plaintiff-Appellant, v. John CASABLANCAS et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

May 14, 1981.

A. Richard Golub, New York City, for plaintiff-appellant.

Melvin Simensky, New York City, of counsel (David M. Rubin, New York City, with him on brief; Gertsen, Scherer & Kaplowitz, New York City), for defendants-respondents Casablancas and Elite Model.

Ronald L. Nurnberg, New York City, of counsel (Kane, Kessler, Proujansky, Preiss & Nurnberg, P.C., New York City), for defendant-respondent Galaxy.

Norman L. Faber, New York City, of counsel (Hall, Dickler, Lawler, Kent & Howley, New York City), for defendant-respondent Spencer.

Before MURPHY, P. J., and KUPFERMAN, SULLIVAN, MARKEWICH and LYNCH, JJ.

SULLIVAN, Justice.

Plaintiff, a highly successful fashion model, whose photograph has appeared on the covers of nationally known magazines such as Harper's Bazaar, Mademoiselle, Ladies Home Journal and Sports Illustrated, has brought this action to enjoin the unauthorized publication, distribution and sale of a poster bearing her photograph in violation of her right of privacy under section 51 of the Civil Rights Law and to recover damages for injuries sustained as a result of this unauthorized, commercial use of her photograph. Named as defendants are her former model agency, Elite Model Management Corp., its president, John Casablancas, the publisher and distributor of the poster, Galaxy Publishing Corp., and two retail stores, Spencer Gifts Retail Stores, Inc., and Oomi Enterprises, Inc. ¹

In September 1979, Casablancas, in his personal capacity, entered into a licensing agreement with Galaxy for the production and worldwide distribution of a series of posters bearing the photographs of several top models, including plaintiff. Under the agreement Casablancas was obliged to furnish the models' photographs from which Galaxy would produce the posters. Galaxy's right to print, publish and vend the posters was conditioned upon Casablancas obtaining the consent of the models.

Plaintiff agreed to participate in the poster project and, after choosing the hair-stylist, makeup artist and bathing suit in which she posed, took part in a photographic session. While she was being photographed, a cable television production company filmed the session for use as part of a television special on the careers of America's foremost models. Eventually, the film of the photographic session was included in a program entitled "Beautiful, Baby, Beautiful", subsequently broadcast throughout the United States on three occasions in March 1980 by Home Box Office, a national cable television network. Plaintiff appeared in that broadcast in the same pose and bathing suit as in the subject poster. Additionally, a photograph of plaintiff, almost identical to the poster photograph, appeared with her consent in a print advertisement for the Home Box Office special.

In the two months following the photographic session plaintiff reviewed color transparencies and discussed the selection of the most suitable print for use in the poster production with Casablancas, members of his staff, and Michael Reinhardt, the photographer. She also reviewed poster proofs which Galaxy had developed from prints delivered by Casablancas. The photograph which eventually appeared on the poster was selected by plaintiff and accepted by Casablancas, Reinhardt and Galaxy. After some final retouching of the photograph, undertaken at plaintiff's request, Galaxy proceeded to print the poster and began commercial distribution in March 1980. Spencer, a "mass merchandiser", purchased 432 copies of the poster, none of which have been resold, without knowledge of any dispute over its distribution. Oomi purchased 24 posters, of which an unspecified number have been resold. Both purchases were without the knowledge or consent of plaintiff, Casablancas or Elite, although Galaxy contends that some time prior to October 3, 1979, Casablancas had orally confirmed that he had plaintiff's consent to proceed with the project. All parties concede that plaintiff never signed the customary written release authorizing distribution of a model's photograph or likeness.

Upon learning of the unauthorized sale of the poster, Casablancas, after first making an unsuccessful effort to secure plaintiff's written consent, terminated his contract with Galaxy. Less than one month later plaintiff commenced this action, and simultaneously sought a preliminary injunction against any further distribution of the poster.

Alleging an unauthorized commercial exploitation of her name and picture by the production and sale of "pin-up" posters bearing her likeness, with consequent injury to her feelings and wrongful invasion of her right of publicity, plaintiff sought a permanent injunction, as well as compensatory and exemplary damages against all the defendants under section 51 of the Civil Rights Law; an accounting, based on an alleged breach of fiduciary duty, of all profits received by Casablancas and Elite from the sale and distribution of the poster; and compensatory and exemplary damages against Casablancas, Elite and Galaxy for conspiracy to defraud.

Defendants moved to dismiss the complaint for failure to state a cause of action. ² In opposing plaintiff requested the court to treat the motions as motions for summary judgment (CPLR § 3211and to grant her partial summary judgment on the issue of liability on her right of privacy claims (CPLR § 3212³ Holding that section 51 of the Civil Rights Law was never intended to afford a cause of action for invasion of privacy to one who, with the legitimate expectation of sharing in the profits, willingly and knowingly participates in a project which will publicize her name and picture, Special Term granted defendants partial summary judgment and dismissed the right of privacy claims, from which determination this appeal is taken. Inasmuch, however, as only plaintiff has appealed, our concern is solely whether a triable issue of fact exists as to the right of privacy causes of action.

Until the enactment in 1903 of sections 50 and 51 of the Civil Rights Law (L.1903, ch. 132, §§ 1, 2), the right of privacy had not "as yet found an abiding place in jurisprudence." (Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 556, 64 N.E. 442.) In Roberson, the Court of Appeals had found legally insufficient a complaint which sought injunctive relief and damages for injured feelings and mental distress due to the unauthorized distribution of lithographic prints of a young woman's photograph to advertise flour. Noting the absence of any allegation that plaintiff was libeled by the publication for which, of course, the common law would have provided a remedy, the court suggested that the protection of the right of privacy was a matter for legislative enactment. Prompted by the holding in Roberson, the Legislature enacted sections 50 and 51 of the Civil Rights Law at its next session. (See Rhodes v. Sperry & Hutchinson Co., 193 N.Y. 223, 227, 85 N.E. 1097, aff'd. sub nom. Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 31 S.Ct. 490, 55 L.Ed. 561.) Section 50 provides a penal sanction while section 51 provides a cause of action for both injunctive relief and monetary redress when, without his or her written consent, a person's "name, portrait or picture is used within this state for advertising purposes or for the purposes of trade." ⁴

Since its purpose "is remedial and rooted in popular resentment at the refusal of the courts to grant recognition to the newly expounded right of an individual to be immune from commercial exploitation" (Flores v. Mosler Safe Co., 7 N.Y.2d 276, 280-281, 196 N.Y.S.2d 975, 164 N.E.2d 853; see Lahiri v. Daily Mirror, 162 Misc. 776, 779, 295 N.Y.S. 382), section 51 of the Civil Rights Law has been liberally construed over the ensuing years. Where First Amendment guarantees are involved, however, its application has been restricted "to avoid any conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest." (Spahn v Julian Messner, Inc., 18 N.Y.2d 324, 328, 274 N.Y.S.2d 877, 221 N.E.2d 543, vacated and remanded 387 U.S. 239, 87 S.Ct. 1706, 18 L.Ed.2d 744, aff'd. on rearg. 21 N.Y.2d 124, 286 N.Y.S.2d 832, 233 N.E.2d 840.) "of speech and the press under the First Amendment transcends the right to privacy." (Namath v. Sports Illustrated, 80 Misc.2d 531, 535, 363 N.Y.S.2d 276, aff'd 48 A.D.2d 487, 371 N.Y.S.d 10, aff'd. 39 N.Y.2d 897, 386 N.Y.S.2d 397, 352 N.E.2d 584.) Thus, the right of privacy of those who, voluntarily or otherwise, have become public figures and in whose activities a legitimate public interest exists, is significantly curtailed. (Koussevitzky v. Allen, Towne & Heath, 188 Misc. 479, 68 N.Y.S.2d 779, aff'd. 272 App.Div. 759, 69 N.Y.S.2d 432.) "a person has sought publicity he cannot at his whim withdraw the events of his life from public scrutiny." (Goelet v. Confidential, Inc., 5 A.D.2d 226, 228, 171 N.Y.S.2d 223.)

A public figure does not, however, surrender all right to privacy. Although his privacy is necessarily limited by the newsworthiness of his activities, he retains the "independent right to have personality, even if newsworthy, free from commercial exploitation at the hands of another." (Booth v. Curtis Publishing Co., 15 A.D.2d 343, 351, 223 N.Y.S.2d 737; see Gautier v. Pro-Football, 304 N.Y. 354, 359, 107 N.E.2d 485; Binns v. Vitagraph Co., 210 N.Y. 51, 103 N.E. 1108.)

In considering the specific issues presented we note at the outset that the sale of the poster was a use of plaintiff's photograph for trade purposes. Defendants do not contend otherwise. Rather, they claim that by performing in the television broadcast "Beautiful, Baby, Beautiful", plaintiff waived her right of privacy to any likeness and image extracted...