Cohen v. Hallmark Cards, Inc.
| Decision Date | 12 July 1977 |
| Citation | 396 N.Y.S.2d 397,58 A.D.2d 770 |
| Parties | Scarlet COHEN et al., etc., Plaintiffs-Respondents, v. HALLMARK CARDS, INC., Defendant-Appellant. HALLMARK CARDS, INC., Third-Party Plaintiff, v. Ken HEYMAN, Third-Party Defendant. |
| Court | New York Supreme Court — Appellate Division |
J. T. Camche, New York City, for plaintiffs-respondents.
J. A. Cohen, New York City, for defendant-appellant.
Before LUPIANO, J. P., and BIRNS, SILVERMAN, LANE and LYNCH, JJ.
Judgment, Supreme Court, New York County, entered March 3, 1976, after a jury trial which, inter alia, awarded plaintiffs punitive damages in the total amount of $50,000, reversed on the law insofar as appealed from, to the extent of deleting the awards for punitive damages. Appellant shall recover of respondents $60 costs and disbursements of this appeal.
Ken Heyman, a professional photographer, had used Scarlet Cohen and her infant daughter as models and had taken photographs of them in October 1966 for commercial use. In 1971, Hallmark Cards, Inc. purchased photographs of the plaintiffs from Heyman, who assured Hallmark that he had obtained model releases for use of the pictures. The contract between Heyman and Hallmark stated in pertinent part: "All original photographs which you provide shall not infringe upon the rights of others . . .." Hallmark utilized these photographs in its publication entitled "Love Is Now."
On December 8, 1971 the plaintiffs, through counsel, wrote to Hallmark that its publication of the photographs constituted an invasion of privacy. The letter also demanded that all further publication of the photographs cease and that all copies already distributed be recalled. Hallmark did not respond to this letter but rather wrote to the photographer Heyman, referred to the December 8 letter, and requested photocopies of the model releases. Heyman on the advice of his own attorney, did not respond to Hallmark's letter. However, it is clear that, prior to and throughout this lawsuit, Heyman consistently maintained that Scarlet Cohen signed releases for both herself and her infant daughter.
The plaintiffs instituted this lawsuit seeking compensatory and punitive damages pursuant to Civil Rights Law, §§ 50 and 51. The jury verdict awarded $1 compensatory damages, $35,000 punitive damages to Scarlet Cohen, and $15,000 punitive damages to her daughter. This appeal is only related to the award of punitive damages.
Civil Rights Law, § 51, inter alia, allows for exemplary damages to be awarded upon proof of knowing use of a person's picture without prior written consent.
In the case at bar, Hallmark relied on the representations of the professional photographer that a written release was executed. When Hallmark received the letter from plaintiffs' counsel, it already had begun publication and incurred considerable expenditures of money. Hallmark had to weigh the written contract it had with a professional photographer, and his representation to them that he had obtained written releases, against an attorney's letter notifying Hallmark of an alleged impermissible use of certain photographs.
Under these circumstances, we find that there was insufficient evidence submitted to the jury to warrant a finding...
To continue reading
Request your trial
-
Cohen v. Hallmark Cards, Inc.
...insufficient evidence submitted to the jury to warrant a finding of knowing use of a photograph without written consent" (58 A.D.2d 770, 771, 396 N.Y.S.2d 397, 398). Accordingly, that court deleted the award of punitive damages as a matter of law. That decision cannot stand. The Appellate D......
-
Cohen v. Hallmark Cards, Inc.
...without written consent within the intendment of section 51 of the Civil Rights Law" (citations omitted) (Cohen v. Hallmark Cards, Inc., 58 A.D.2d 770, 771, 396 N.Y.S.2d 397, 398). We have now, on remittitur, been directed to review the facts within the guidelines enunciated by the Court of......