Welch v. Mr. Christmas Inc.

• Decision Date: 07 October 1982
• Citation: 440 N.E.2d 1317,454 N.Y.S.2d 971,57 N.Y.2d 143
• Parties: , 440 N.E.2d 1317, 8 Media L. Rep. 2366 Charles C. WELCH, Respondent, v. MR. CHRISTMAS INCORPORATED, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 971

454 N.Y.S.2d 971

57 N.Y.2d 143, 440 N.E.2d 1317, 8

Media L. Rep. 2366

Charles C. WELCH, Respondent, v. MR. CHRISTMAS INCORPORATED, Appellant.

Court of Appeals of New York.

Oct. 7, 1982.

Dennis G. Jacobs, New York City, for appellant

James P. Costello, New York City, for respondent.

OPINION OF THE COURT

MEYER, Judge.

Knowledge is not an element of the cause of action created by section 51 of the Civil Rights Law for compensatory damages and injunctive relief, nor will a written consent of the person whose name, picture or portrait is used which, by its terms, has expired at the time of the use complained of protect against the award of such relief under the statute. Neither malice nor recklessness need be shown for recovery in such an action of exemplary damages, it being sufficient for recovery of such damages to prove that "defendant shall have knowingly used" plaintiff's name, portrait or picture. The question whether a sufficient showing of knowing use to permit recovery of exemplary damages in the instant case not having been preserved for our review, the order of the Appellate Division, 85 App.Div.2d 74, 447 N.Y.S.2d 252, should be affirmed, with costs.

Plaintiff, a professional actor, and defendant, a manufacturer of artificial Christmas trees, entered into a one-year contract in November, 1973, whereby for a $1,000 fee plaintiff agreed to appear in a television commercial advertising defendant's product. The contract also contained an option for the use of the commercial in 1974. Defendant distributed prints of the commercial to its local distributors who, in turn, arranged air time for broadcast of the commercial. In 1974, without prior notice or payment to plaintiff, defendant used the commercial. The parties subsequently entered into a financial settlement for the exercise of the 1974 option. In March, 1975, plaintiff, through the Screen Actors Guild, cautioned defendant that the term of permissible use of the commercial had expired and that negotiations were required for any further use of the commercial. Nevertheless, the commercial was aired during the 1975 Christmas season in Rochester, New York.

Plaintiff then commenced this action under section 51 of the Civil Rights Law. ¹ At trial, a Mr. Dauphin testified that he witnessed plaintiff's commercial being telecast in Rochester, New York, in November, 1975, long after plaintiff's consent to its use had expired. Dauphin also testified that the commercial contained a "tag line", a message indicating the local distributor responsible for the commercial's airing, but he could not recall the name of the distributor mentioned. There was, however, no testimony that defendant arranged or paid for the air time during which the commercial was exhibited or had actual knowledge that it was to be exhibited by that distributor at that time. Defendant, on the other hand, failed to demonstrate that it took any steps to recall the prints or limit the dissemination of the commercial after the contract period expired. To the contrary, its president testified that defendant had actively encouraged the maximum use of the commercial in order to sell Christmas trees and had placed no restrictions on the use of the commercial by its distributors, and was sure that he had not received back all of the prints sent out.

The jury returned a verdict for plaintiff in the amount of $1,000 compensatory damages and $25,000 exemplary damages. The Trial Judge held the latter award excessive and reduced it to $15,000, but denied defendant's postverdict motion for judgment notwithstanding the verdict (CPLR 4404, subd. ), and after reconsideration of the latter motion upon reargument, adhered to his original decision.

The Appellate Division, over a partial dissent, affirmed the judgment and order below. The majority held the evidence concerning defendant's failure to prevent a distributor's use of plaintiff's commercial sufficient to justify compensatory damages under section 51 of the Civil Rights Law. It also held morally culpable conduct unnecessary for an award of punitive or exemplary damages under the statute and that the evidence supported the factual conclusion that defendant acted knowingly. The dissenter voted to modify in part by striking the punitive damage award because he viewed the dispute as a breach of contract action in which such damages were recoverable only for intentional wrongdoing.

Defendant appeals to our court as of right. ² It does not dispute that the November, 1975 use was for the purpose of trade but contends that (1) plaintiff having given a written consent can recover only for breach of contract, (2) it cannot be held for compensatory damages for a use by its distributor, (3) recovery of punitive damages can only be had upon a showing of malice or recklessness, and (4) the knowing use required for recovery of exemplary damages under the statute has not been shown. For the reasons hereafter stated, we affirm.

I

Section 51 of the Civil Rights Law authorizes injunctive relief to and the recovery of compensatory damages by an individual whose name, portrait or picture is used within the State for advertising or trade purposes without his or her prior written consent (Andretti v. Rolex Watch, U.S.A., 56 N.Y.2d 284, 286, 452 N.Y.S.2d 284, 437 N.E.2d 264; Arrington v. New York Times Co., 55 N.Y.2d 433, 439, 449 N.Y.S.2d 941, 434 N.E.2d 1319; Brinkley v. Casablancas, 80 A.D.2d 428, 440, 438 N.Y.S.2d 1004). ³ Pointing to the fact that plaintiff's prior written consent was in fact obtained, defendant argues that it can only be held liable in contract.

Here, however, the time limitation upon the use of the commercial had expired at the time of use. The right to withhold consent to a use includes the right to limit the period within which the consent remains in effect. Within the meaning and purpose of the statute, use after expiration of the effective period of consent is no less an invasion of privacy than is use without consent (Adrian v. Unterman, 281 App.Div. 81, 89, 118 N.Y.S.2d 121, affd. 306 N.Y. 771, 118 N.E.2d 477 see Booth v. Curtis Pub. Co., 15 A.D.2d 343, 352, 223 N.Y.S.2d 737, affd. 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812 privacy as she has not relinquished"]; and Bunnell v. Keystone Varnish Co., 254 App.Div. 885, 5 N.Y.S.2d 415, affg. 167 Misc. 707, 4 N.Y.S.2d 601 ). Plaintiff's statutory action is not foreclosed by the previously effective but now expired consent.

II

No more helpful to defendant, for several reasons, is its contention that it cannot be held under the statute because it did not use the commercial. Defendant does not suggest, nor could it in view of the nature of the commercial, ⁴ that plaintiff's picture was not used for the purpose of advertising its product. Rather it argues that it has not been shown either that it used or directed use of the commercial in 1975 or that it knew prior to that use that the commercial would be used by the distributor.

Knowledge is not an element of the cause of action for compensatory damages or injunctive relief under the statute. This necessarily follows from its express requirement as to exemplary damages that "defendant shall have knowingly used" another's name, portrait or picture without consent, and the omission in the earlier portion of the same sentence dealing with compensatory damages of any modifier similarly limiting the use made compensable (Lerman v. Chuckleberry Pub., 496 F.Supp. 1105, 1109). Whether the claimed lack of knowledge concerns, as here, the use or, as in Lerman, the absence of consent is, as to compensatory damages, irrelevant in view of the wording of the statute. Nor need it be shown that defendant arranged for or directed use of the commercial by its Rochester distributor in 1975. The evidence that defendant actively encouraged maximum use of the commercial by its distributors who were expected to make their own arrangements for air time and neither placed any restriction upon the period within which it was to be used by the distributors nor made any effort at the expiration of the consent period or following the March, 1975 warning from the Screen Actors Guild to recall prints of the commercial from the distributors furnished a more than sufficient basis for holding d...