Cohen v. Herbal Concepts, Inc.

• Decision Date: 08 March 1984
• Citation: 473 N.Y.S.2d 426,100 A.D.2d 175
• Parties: , 10 Media L. Rep. 1561 Susan COHEN, et al., Plaintiffs-Appellants, v. HERBAL CONCEPTS, INC. (in default) Defendant, and The Hearst Corporation, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 426

473 N.Y.S.2d 426

100 A.D.2d 175, 10 Media L. Rep. 1561

Susan COHEN, et al., Plaintiffs-Appellants, v. HERBAL CONCEPTS, INC. (in default) Defendant and The Hearst Corporation, et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

March 8, 1984.

H. Schmertz, New York City, for plaintiffs-appellants.

R.P. Huber, Forest Hills, for defendant.

L.S. Reynolds, Staten Island, for defendants-respondents.

Before CARRO, J.P., and ASCH, SILVERMAN, BLOOM and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered on June 24, 1982, unanimously reversed, on the law, without costs and without disbursements, the motion denied and the first and second causes of action reinstated.

KASSAL, J., concurs in a memorandum in which CARRO, J., concurs.

ASCH, J., concurs in a separate memorandum.

SILVERMAN, J., concurs in a separate memorandum in which BLOOM, J., concurs, all as follows.

KASSAL, Justice (concurring).

Plaintiffs appeal from an order which granted the motions by defendants, The Hearst Corporation ("Hearst"), The Conde Nast Publications, Inc., ("Conde Nast") and James Krieger ("Krieger"), for summary judgment dismissing the first and second causes of action alleging an invasion of plaintiffs' right to privacy under New York Civil Rights Law §§ 50 and 51.

The issue is whether the photograph, concededly published in magazines for advertising purposes, amounts to a portrait or picture of the plaintiffs within the contemplation of the statute and whether the identity of plaintiffs, as the subject of the photograph, poses a factual issue to await the trier of the facts. Special Term concluded, as a matter of law, that the identity of the plaintiffs could not be determined from the picture and dismissed the complaint. To the contrary, the identification of the plaintiffs is a factual issue, susceptible to proof at trial and inappropriate for summary disposition on the fact-finding analysis engaged in by Special Term.

On the weekend of July 4, 1977, plaintiffs were visiting their friends, Mr. and Mrs. Henderson, at the Henderson home in Woodstock, New York. During the weekend, Susan Cohen and her child, Samantha, were bathing in the nude in a stream located on private property, when Ira Cohen observed Krieger taking photographs of his wife and daughter as they entered the water. While Krieger denies having taken any photographs, Cohen claims that Krieger admitted that he had taken them and that he had a right to do so. Some time later, while flipping through a magazine, Mr. Cohen recognized his wife and daughter in a photograph which appeared as part of an advertisement for Au Natural, a product used to fight cellulite, manufactured by Herbal Concepts. The photograph appeared in advertisements in three magazines, House Beautiful and Cosmopolitan published by Hearst, and House and Garden, published by Conde Nast. The photograph depicts two nude persons, a woman carrying a small object in her left hand, leading a young girl by the right hand through shallow water. Although the faces of neither are visible, the rear and side of the subjects can be seen. The mother appears lean, with a long, thin neck and distinctive short, free-flowing hair. Her waist and arms are slender and her right breast is visible, as is the area of the buttocks, with what appear to be two dimples appearing above. The advertisement reproduces the photograph next to the advertising copy, which describes the product and is addressed to women with "fatty lumps and bumps that won't go away."

The action as originally commenced contained six causes of action, the first two to recover under the Civil Rights Law and the third through sixth sounding in defamation. On a prior motion, Special Term concluded that the photograph was not defamatory per se and dismissed the last four causes of action since special damages had not been alleged. In his opinion, the justice at Special Term expressed the view that, from the picture, it was impossible to identify either person since no faces were visible.

Following that determination, defendants moved for summary judgment dismissing the first two causes, relying upon the prior opinion and claiming that, as a matter of law, the advertisement did not portray a clear representation of the plaintiffs. In essence, it was argued that since their faces were not depicted, it was impossible to identify them. Krieger also denied having taken, sold or published the photograph. His attorney, contending that plaintiffs could not be identified, relied upon the position of Special Term on the prior motion as dispositive on the legal insufficiency of the remaining causes of action. In opposition, Mr. Cohen stated that he had recognized his wife and daughter from the photograph and that several friends had also recognized them.

Special Term dismissed the complaint, concluding "that the identities of the plaintiffs cannot be determined from the picture." That determination, however, is essentially a factual one and cannot be made upon motion for summary judgment, where the judicial function is limited to issue-finding, not issue-determination (Sillman v. Twentieth Century-Fox, 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387; Esteve v. Abad, 271 App.Div. 725, 727, 68 N.Y.S.2d 322). As has been recognized, summary judgment is a drastic remedy and should not be granted where there is any doubt of the existence of a triable issue (Moskowitz v. Garlock, 23 A.D.2d 943, 944, 259 N.Y.S.2d 1003) or where the issue is even arguable (Barrett v. Jacobs, 255 N.Y. 520, 522, 175 N.E. 275).

Civil Rights Law § 51 makes actionable the use within the state for advertising or trade purposes of the "name, portrait or picture" of "[a]ny person," without securing the consent of such person. This statutory right of privacy is limited in the sense that it is a legislative creation, no right of privacy having been recognized in this state until the enactment of sections 50 and 51 of the Civil Rights Law [Laws of 1903, Chapter 132, §§ 1, 2] (see Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442). In Roberson, the Court of Appeals found legally insufficient a prayer for injunctive relief and monetary damages for the unauthorized distribution of plaintiff's photograph in an advertisement for defendant's flour, the majority concluding that any protection to be accorded was a matter for legislative enactment and could not be effected by judicial pronouncement. That decision, it has been observed, resulted in the enactment of Civil Rights Law §§ 50 and 51 at the next session of the Legislature (see Flores v. Mosler Safe Co., 7 N.Y.2d 276, 280, 196 N.Y.S.2d 975, 164 N.E.2d 853).

The remedial nature of the statute affords protection against the commercial exploitation of one's "name, portrait or picture" and furnishes a remedy for the injury to a person's feelings and sentiments. Thus, in Flores v. Mosler Safe Co., supra, 7 N.Y.2d at 280-281, 196 N.Y.S.2d 975, 164 N.E.2d 853, the Court of Appeals observed:

"[T]he primary purpose of this legislation was to protect the sentiments, thoughts and feelings of an individual (Hofstadter, The Development of The Right to Privacy in New York [1954], p. 12). In construing the statutes it should be noted that although it is in part penal * * * the purpose of the statute 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 (Lahiri v. Daily Mirror, 162 Misc. 776, 779 ). Justice Shientag, in his opinion in the Lahiri case, in establishing a guide in the construction of these sections has said that 'A statute of this kind is not "to be obeyed grudgingly, by construing it narrowly and treating it as though it did not exist for any purpose other than that embraced within the strict construction of its words." It is "not an alien intruder in the house of common law, but a guest to be welcomed * * * as a new and powerful aid in the accomplishment of its appointed task of accommodating the law to social needs." ' (Lahiri v. Daily Mirror, supra, p. 779 )"

While the statutory scope is restricted in the sense that it only affords protection against the commercial exploitation of one's "name, portrait or picture," the section has been liberally construed (see Flores v. Mosler Safe Co., supra; Lahiri v. Daily Mirror, supra; Brinkley v. Casablancas, 80 A.D.2d 428, 432, 438 N.Y.S.2d 1004). In Brinkley, Justice Sullivan, in a scholarly and exhaustive analysis of the history and scope of the statute, similarly concluded that the underlying purpose was to protect against "the wrongful exploitation of his or her name or likeness," observing (80 A.D.2d at 440, 438 N.Y.S.2d 1004):

"The wrong consists of only two elements: the commercial use of a person's name or photograph and the failure to procure the person's written consent for such use. The damages that flow from the confluence of these two events should be compensable whether the injury is to one's feelings or to his 'propriety' interest."

Contrary to the construction adopted at Special Term and urged by defendants on this appeal, the statutory phrase "portrait or picture" does not require that there be an identifiable facial representation as a prerequisite to relief. The legislative scope affords far greater protection than that accorded by Special Term. The thrust of the statute extends to any commercial exploitation of one's "likeness," which includes any representation of the person. (Binns v. Vitagraph Co., 210 N.Y. 51, 57, 103 N.E. 1108; Brinkley v. Casablancas, supra, 80 A.D.2d at 440, 438 N.Y.S.2d 1004, Young v. Greneker Studios, Inc., 175 Misc. 1027, 1028, 26 N.Y.S.2d 357) Thus, almost 70 years ago, in Binns v. Vitagraph Co., supra, 210 N.Y. at 57, 103 N.E. 1108, our Court of Appeals observed:

"A picture within the meaning of the statute is not...