Myskina v. Conde Nast Publications, Inc

• Decision Date: 12 July 2005
• Docket Number: No. 04 Civ.6094 (MBM).,04 Civ.6094 (MBM).
• Citation: 386 F.Supp.2d 409
• Parties: Anastasia MYSKINA, Plaintiff, v. THE CONDÉ NAST PUBLICATIONS, INC., Gentleman's Quarterly, Mark Seliger, and Mark Seliger Studio, Defendants.
• Court: U.S. District Court — Southern District of New York

386 F.Supp.2d 409

Anastasia MYSKINA, Plaintiff, v.THE CONDÉ NAST PUBLICATIONS, INC., Gentleman's Quarterly, Mark Seliger, and Mark Seliger Studio, Defendants.

No. 04 Civ.6094 (MBM).

United States District Court, S.D. New York.

July 12, 2005.

COPYRIGHT MATERIAL OMITTED

Alexander Berkovich, Berkovich and McMenamin, New York, NY, for PlaintiffAnastasia Myskina.

Daniel M. Felber, Balsam Felber & Goldfield, New York, NY, for DefendantsCondé Nast Publications, Inc., Gentleman's Quarterly, Mark Seliger, and Mark Seliger Studio.

OPINION AND ORDER

MUKASEY, District Judge.

In this diversity action, plaintiffAnastasia Myskina sues defendantsCondé Nast Publications, Inc.("Condé Nast") and its magazine Gentleman's Quarterly ("GQ"),¹Mark Seliger, and Mark Seliger Studio² for violations of Sections 50and51 of New York Civil Rights Law, misappropriation, unjust enrichment, negligence, and breach of contract.The claims arise out of the alleged unauthorized dissemination of photographs taken of Myskina by defendants in connection with the October 2002"Sports" issue of GQ, and publication of these photographs in the July/August 2004 issue of the Russian magazine Medved.Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56.Because the parties have submitted affidavits and other exhibits, defendants' motion will be treated as one for summary judgment.SeeFed.R.Civ.P. 12(b);see alsoGroden v. Random House, Inc.,61 F.3d 1045, 1052-53(2d Cir.1995).For the reasons set forth below, defendants' motion is granted.

I.

Myskina, a Russian citizen, is the 2004 French Open champion who at the time of the filing of this complaint was ranked fourth among female professional tennis players worldwide.(Compl. ¶ 3;Defs.' Rule 56.1 Statement¶ 3)She was 20 years old at the time that the photographs at issue were taken.Condé Nast is a New York publishing company; GQ is one of its publications (Compl. ¶ 4;Defs.' Rule 56.1 Statement¶ 4) Seliger, who owns Seliger Studio, is a professional photographer who resides in New York.(Compl.¶ 6)

In July 2002, Condé Nast editor Beth Altschull contacted International Sports Advisors — a publicity agency that represented Myskina at the time — to inquire whether Myskina would be interested in being photographed in the nude by Seliger for the cover and interior of GQ's 2002"Sports" issue as part of a pictorial and profile of female tennis players.(Affidavit of Beth Altschull ("Altschull Aff.")¶ 3)Myskina expressed interest, and her agent instructed Kenneth Gantman, a 23-year-old administrative assistant at International Sports Advisors, to set up the appointment and accompany Myskina to the photoshoot.(Affidavit of Kenneth Gantman ("Gantman Aff.")¶ 4)Altschull and Gantman spoke on several occasions before the date of the photoshoot to agree on a convenient date and time for Myskina to come to New York and participate in the photoshoot.(GantmanAff. ¶ 5)

On July 16, 2002, Myskina arrived at the photoshoot with Gantman and Jens Gerpach, who was her coach and then-boyfriend.(AltschullAff. ¶ 7)Gantman claims that it was only at the photoshoot — and not during previous conversations with Altschull — that Altschull explained that the cover photograph of Myskina would depict her as "Lady Godiva" — lying nude on the back of a horse.(GantmanAff. ¶ 11)It is not clear from Altschull's affidavit whether she claims that this information was communicated before the date of the photoshoot.(AltschullAff. ¶¶ 2, 3)In any event, Myskina expressed concern about being photographed in the nude.(Affidavit of Anastasia Myskina ("Myskina Aff.")¶ 9)According to Myskina and Gantman, Altschull explained that Myskina would wear nude-colored underpants and have long hair taped to her body to cover her breasts and that, except for the Lady Godiva photographs to be published in the GQ issue, the photographs taken during the photoshoot would not be published anywhere.(MyskinaAff. ¶ 10;GantmanAff. ¶ 13)Myskina claims that only after this assurance did she agree to be photographed.(MyskinaAff. ¶ 11;GantmanAff. ¶ 14)

Before shooting began, Altschull presented Gantman with Condé Nast's standard release form ("Release") for models appearing in Condé Nast publications and informed him that absent his objection, she would ask Myskina to sign it.(Exs. A and B to Altschull Aff.;AltschullAff. ¶¶ 6-7)The Release, which is printed on Condé Nast letterhead, provides that the signatory model "hereby irrevocably consent[s] to the use of [her] name and the pictures taken of [her] on [a specified date] by [Condé Nast], ... and others it may authorize, for editorial purposes."(Exs. A and B to Altschull Aff.)The Release does not contain a merger clause.(Id.)Myskina's signature appears on the Release.(Ex. B to Altschull Aff.)

Myskina claims that Gantman was neither an agent nor a publicist at International Sports Advisors and did not represent himself as such to Altschull, anyone at GQ, or anyone at the studio where the photoshoot took place.(Myskina Rule 56.1 Statement¶ 8;GantmanAff. ¶ 3)Defendants claim that Gantman voiced no objection to the Release or to Myskina's signing it.(AltschullAff. ¶ 7)In addition to denying that he was ever presented with the Release, Gantman claims that he neither discussed the Release with Myskina nor observed her signing it.(GantmanAff. ¶¶ 16-17)Myskina does not recall signing or discussing a Release with Condé Nast.(Myskina Rule 56.1 Statement¶ 14)Moreover, Myskina claims that she could not have understood the terms of the Release (id.¶ 18) because at the time she was not fluent in English (MyskinaAff. ¶ 2) and "would not have signed [the Release] had it been explained to her that [it] would or might authorize GQ and Mark Seliger to publish, sell or disseminate her photographs from [the photoshoot] beyond publication of the Lady Godiva photograph for the 2002`Sports Issue' of GQ."(Myskina Rule 56.1 Statement¶¶ 18-19)

Myskina claims that she was photographed topless in blue jeans after Seliger finished with the Lady Godiva photographs and that these had "nothing to do with the `Lady Godiva' concept."(Myskina Rule 56.1 Statement¶¶ 20-22)She recalls that Seliger asked her whether he could take these topless photographs "for himself" so long as they were already in the studio.(Myskina Rule 56.1 Statement¶ 22;MyskinaAff. ¶ 20)She"told him he could only take these photographs if these photographs would not be published anywhere," to which he"understood and agreed."(MyskinaAff. ¶ 20)

Condé Nast eventually published Myskina's profile and a "Lady Godiva" photograph from the photoshoot, which appeared on both the issue's cover and in a two-page spread inside the issue.(Ex. C to Altschull Aff.)Myskina was not paid in connection with the publication of her photograph in GQ.(MyskinaAff. ¶ 4)

Pursuant to an agreement that went into force on February 20, 2002("Seliger Agreement"), Seliger is authorized by Condé Nast to exploit all photographs taken on assignment by Condé Nast for various uses, subject to certain restrictions, including an "exclusivity period" during which Condé Nast possesses the exclusive first right to publish photographs taken by Seliger on assignment for Condé Nast.(Affidavit of Linda Rice ("Rice Aff.")¶ 4)The exclusivity period for the July 16, 2002 photographs of Myskina expired on November 23, 2003, after which Seliger had the right to authorize publication of the photographs for "editorial syndication".(Id.¶¶ 5, 8;Seliger Agreementat 8)Seliger could authorize publication for "any commercial, merchandising or advertising purpose" only with Condé Nast's express written consent.(Seliger Agreementat 8)

On February 13, March 7, and March 20, 2004, Corbis Corporation("Corbis"), a photograph and fine art image licensing company, received images from the July 16, 2002 photoshoot from Seliger and placed them on the Corbis website.(Defs.' Rule 56.1 Statement¶ 15)Corbis was Seliger's exclusive agent for the syndication of his photographs for editorial purposes.(Defs.' Rule 56.1 Statement¶ 13;Affidavit of William Hannigan ("Hannigan Aff.")¶ 6)Around June 9, 2004, Corbis, through its authorized agent in Russia, licensed five of the July 16, 2002 photoshoot images to Medved.(Id.¶ 16)

In July 2004, these photographs appeared in the July/August 2004 issue of Medved (Compl. ¶ 15; Ex. B to Declaration of Alexander Berkovich("Berkovich Decl.")), and soon after on Medved's website.(MyskinaAff. ¶ 21; Ex. C to Berkovich Decl.)One of the photographs was published on the issue's cover, and the other four appeared inside.(Ex. B to Berkovich Decl.)Three, including the cover shot, depict frontal nudity and two appear to be versions of the Lady Godiva photograph that appeared in the October 2002 GQ issue.(Id.)

Meanwhile, Medved had approached Myskina after her French Open win about an interview and photography session.(MyskinaAff. ¶ 17)She"told them that [she] couldn't do it."(Id.)However, it appears that she granted the interview but not the photoshoot.(Ex. B to Affidavit of Robert Balsam)("Balsam Aff.") Medved represented to her that it would use an "on the court" action photograph of her by a Russian sports photographer.(Id.)

The Medved article, entitled "Nastya Myskina: The Champion's Private Life," included a biography of Myskina and excerpts from the interview, which covered her thoughts on her French Open win, press reports of her romantic life, and life on the professional tennis tour.(Ex. A to Balsam Aff.)

According to Myskina, Medved never notified her that it had acquired and intended to publish photographs taken of her by Seliger during the July 16, 2002 photoshoot.(MyskinaAff. ¶ 17)

Myskina claims that the publication of the photographs in Medved "are highly embarrassing and have caused [her...