Cohen v. Herbal Concepts, Inc.

• Decision Date: 20 November 1984
• Citation: 482 N.Y.S.2d 457,472 N.E.2d 307,63 N.Y.2d 379
• Parties: , 472 N.E.2d 307 Susan COHEN et al., Respondents, v. HERBAL CONCEPTS, INC., et al., Defendants, and The Hearst Corporation et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 457

482 N.Y.S.2d 457

63 N.Y.2d 379, 472 N.E.2d 307

Susan COHEN et al., Respondents, v. HERBAL CONCEPTS, INC., et al., Defendants and The Hearst Corporation et al., Appellants.

Court of Appeals of New York.

Nov. 20, 1984.

Lola Sullivan Reynolds, Ralph P. Huber and Nancy K. Nadler, New York City, for appellants.

Herman Schmertz, New York City, for respondents.

OPINION OF THE COURT

SIMONS, Judge.

Plaintiffs bring this action pursuant to section 51 of the Civil Rights Law seeking damages from defendants for publishing photographs of them for advertising purposes. It is conceded for purposes of this appeal that plaintiffs are the persons shown in the photographs and that defendants used the photographs as claimed without their consent. The legal issue submitted is whether a photograph of the nude plaintiffs, mother and child, which shows their bodies full length as viewed from a position behind and to the right of them, and which does not show their faces, reveals sufficiently identifiable likenesses to withstand defendants' motions for summary judgment. We hold that it does.

The action arises from these facts.

On the July 4th weekend in 1977, plaintiffs were visiting friends in Woodstock, New York, and Susan Cohen and her four-year-old daughter, Samantha, went bathing in a stream located on their friends' private property. Without their consent, defendant James Krieger took photographs of plaintiffs and subsequently sold them to defendant Herbal Concepts, Inc., a seller and advertiser of consumer products. Herbal Concepts used one of the photographs in an advertisement for Au Naturel, a product designed to help women eliminate body cellulite, those "fatty lumps and bumps that won't go away". The advertisement appeared in two editions of House and Garden, which is published by defendant Conde Nast Publications, Inc., and in single editions of House Beautiful and Cosmopolitan, which are published by defendant Hearst Corporation. Ira Cohen subsequently recognized his wife and daughter in the advertisements while reading one of the magazines and this action followed.

Plaintiffs Susan and Samantha Cohen alleged causes of action seeking compensatory and exemplary damages based upon violations of section 51 of the Civil Rights Law and defamation and plaintiff Ira Cohen alleged causes of action seeking damages for loss of his daughter's services and loss of consortium. Defendants moved first for summary judgment on the defamation and derivative causes of action and Special Term granted those motions. They then moved for summary judgment on Susan and Samantha Cohen's causes of action based upon section 51 of the Civil Rights Law. Special Term granted those motions also and dismissed the complaint in its entirety. Plaintiffs appealed to the Appellate Division from the second order. It reversed and reinstated the privacy causes of action and granted defendants Hearst and Conde Nast leave to appeal to this court. 100 A.D.2d 175, 473 N.Y.S.2d 426.

Special Term dismissed the privacy actions because it concluded "the identities of the plaintiffs cannot be determined from the picture." Although the Appellate Division Justices were unanimous for reversal, they differed in their reasons for doing so. Two Justices held that section 51 requires only an identifiable likeness capable of being recognized by others, not an identifiable facial representation. They thus concluded that the identification of plaintiffs was a question for the jury. Two other Justices concurred, stating that in their view it was sufficient that the picture was of the plaintiffs and that plaintiffs could identify it as such. Justice Asch agreed with Special Term that plaintiffs' privacy causes of action lacked merit because neither person in the advertisement was capable of being identified. He concurred in the result, however, after finding that plaintiffs possessed a valid claim for unjust enrichment.

The history of New York's privacy statute has been recited before and need not be repeated here (see Shields v. Gross, 58 N.Y.2d 338, 461 N.Y.S.2d 254, 448 N.E.2d 108; Arrington v. New York Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941, 434 N.E.2d 1319, cert. den. 459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994; Flores v. Mosler Safe Co., 7 N.Y.2d 276, 280-281, 196 N.Y.S.2d 975, 164 N.E.2d 853; Prosser and Keeton, Torts ch. 20). Although the tort has assumed various forms in other jurisdictions (see Restatement, Torts 2d, § 652A et seq.), in New York privacy claims are founded solely upon sections 50 and 51 of the Civil Rights Law. The statute protects against the appropriation of a plaintiff's name or likeness for defendants' benefit. Thus, it creates a cause of action in favor of "person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without * * * written consent". The action may be brought to enjoin the prohibited use and may also seek damages for any injuries sustained including exemplary damages for a knowing violation of the statute. We are concerned in this case with the appropriation of plaintiffs' likenesses. Defendants claim that there has been no wrong because even if the photograph depicts plaintiffs, they are not identifiable from it.

The statute is designed to protect a person's identity, not merely a property interest in his or her "name", "portrait" or "picture", and thus it implicitly requires that plaintiff be capable of identification from the objectionable material itself (see Allen v. Gordon, 86 A.D.2d 514, 515, 446 N.Y.S.2d 48, affd. 56 N.Y.2d 780, 452 N.Y.S.2d 25, 437 N.E.2d 284; Wojtowicz v. Delacorte Press, 58 A.D.2d 45, 48, 395 N.Y.S.2d 205, affd. 43 N.Y.2d 858, 403 N.Y.S.2d 218, 374 N.E.2d 129; Loftus v. Greenwich Lithographing Co., 192 App.Div. 251, 182 N.Y.S. 428; Ali v. Playgirl, Inc., 447 F.Supp. 723, 726; Negri v. Schering Corp., 333 F.Supp. 101, 103; Levey v. Warner Bros. Pictures, 57 F.Supp. 40, 42; see, generally, Prosser and Keeton, Torts pp. 849-854). That is not to say that the action may only be maintained when plaintiff's face is visible in the advertising copy. Presumably, by using the term "portrait" the Legislature intended a representation which includes a facial reproduction, either artistically or by photograph, but if we are to give effect to all parts of the statute, it applies also to the improper use of a "picture" of plaintiff which does not show the face. Manifestly, there can be no appropriation of plaintiff's identity for commercial purposes if he or she is not recognizable from the picture and a privacy action could not be sustained, for example, because of the nonconsensual use of a photograph of a hand or a foot without identifying features. But assuming that the photograph depicts plaintiff, whether it presents a recognizable likeness is generally a jury question unless plaintiff cannot be identified because of the limited subject matter revealed in the photograph or the quality of the image. Before a jury may be permitted to decide the issue, to survive a motion for summary judgment, plaintiff must satisfy the court that the person in the photograph is capable of being identified from the advertisement alone and that plaintiff has been so identified.

The sufficiency of plaintiff's evidence for purposes of the motion will necessarily depend upon the...