Friday, May 07, 2010

Book cover not artwork, subject to right of publicity claim

Yasin v. Q-Boro Holdings, LLC, 2010 WL 1704889 (Table) (N.Y.Sup.), 2010 N.Y. Slip Op. 50742(U), No. 13259/09 (Apr. 23, 2010)

Tasleema Yasin sued over the use of a photo of her, without her consent, for the cover of a work of fiction, Baby Doll. In 2005, Yasin hired photographer Frank Antonio Aleman to take photos of her “for the purpose of promoting her career as a singer and songwriter.” She signed no release. In 2008, she learned that her image was on the front cover of the book. (Defendants stated that the photographer had certified in writing that he had the necessary release.) She sued for commercial misappropriation under Civil Rights Law §§ 50 and 51, which bar using a person’s name, portrait or picture for advertising or trade purposes without first obtaining written consent.

Defendants argued that the picture wasn’t used for advertising or trade purposes, but was protected by the First Amendment. The court disagreed. The use here did not fall within the newsworthiness/public interest exception. There was no relationship between Yasin’s picture and the subject matter of the book, which was a pure work of fiction that in no way referenced her or used her as a character. Although the use of a person’s image in a work of art is constitutionally protected free speech, the photo here wasn’t “artwork.” Rather, its use on the cover was “purely for marketing and trade purposes; solely as a means to attract customers and generate sales.” Thus, the court granted a permanent injunction against further use of her image and summary judgment on the issue of liability.

Note: although the court cited Messenger v. Gruner & Jahr Printing & Publ’g, 94 N.Y.2d 436, 441 [2000], in explaining the cause of action, it did not discuss the facts of that case or distinguish it, creating at least an oddity: there’s a cause of action for appearing on the cover of an unrelated work of fiction, but not for appearing as an illustration of a newsworthy story that has nothing to do with the person depicted (as long as there’s a “real relationship” between the picture and the story, which there can be even if the person is not part of the story)—even though it’s the latter that is more likely to cause people to draw false conclusions about the person depicted.


6 comments:

Anonymous said...

Would you please post the full decision or a link to it.

Thanks.

Rebecca Tushnet said...

KAREN B. ROTHENBERG, J.

*1 The instant action by plaintiff, Tasleema Yasin (hereinafter Yasin), brought under Civil Rights Law §§ 50 and 51, concerns the use by defendants Q-Boro Holdings, LLC and Urban Books, LLC (hereinafter defendants) of a photograph of Yasin, without her consent, for the cover of its book entitled Baby Doll. Yasin moves for a permanent injunction prohibiting the further sale, display, and use of her image by defendants and for an award of partial summary judgment on the issue of liability. Defendants cross-move for summary judgment dismissing Yasmin's complaint in its entirety.

It is alleged that in 2005 Yasin hired photographer Frank Antonio Aleman to take her photos for the purpose of promoting her career as a singer and songwriter. Yasmin did not sign any release allowing Mr. Antonio or any other person to use her photograph. Sometime in June, 2008 Yasin learned that her image appeared on the front cover of the book. The book is a work of fiction, published by defendants, and it is commercially distributed by retailers such as Border Bookstores, Barnes & Noble, and Amazon.com. In May, 2009, Yasin's attorney sent cease and desist letters to defendants. Defendants' counsel responded that defendants, by written agreement with Mr. Antonio, in which Mr. Antonio certified that he had obtained the necessary release for the image, had acquired the right to use the photograph. Yasin instituted the instant action against defendants for commercial misappropriation of her picture in violation of the state's statutory right of privacy.

New York does not recognize a common-law right to privacy ( see Messenger v. Gruner & Jahr Print & Publ., 94 N.Y.2d 436, 441 [2000]. Instead, a limited statutory right to privacy is created by Civil Rights Law §§ 50 and 51. Under Civil Rights Law § 50, it is a misdemeanor to use a person's name, portrait or picture for advertising or trade purposes without having first obtained the written consent of such person. Civil Rights Law § 51 in turn, provides for civil and equitable redress. The elements of a cause of action under Civil Rights Law § 51 are (1) the use of a person's name, portrait, picture (2) for advertising purposes or for the purpose of trade, (3) without written consent ( see Molina v. Phoenix Sound, 297 A.D.2d 595, 597 [2002].

In the instant matter it is undisputed that defendant's used Yasin's picture without her written consent. The only issue therefore, is whether the picture was used for advertising' or trade' purposes.Here, defendants contend that their use of Yasin's picture in a fictional work is constitutionally protected under the First Amendment and does not violate Civil Rights Law § 51. The court disagrees and finds that the use herein was violative of the privacy statute.

It is well settled that New York's privacy statute is strictly limited to “noncensual commercial appropriations of the name, portrait or picture of a living person” ( Finger v. Omni Publ'ns Int'l, 77 N.Y.2d 138, 141 [1990] ). These statutory provisions prohibit the use of pictures, names or portraits “for advertising purposes or for the purposes of trade” ( Finger v. Omni Publ'ns Int's, supra ). The privacy statute is narrowly construed and does not apply to “newsworthy events or matters of public interest” as such material is not deemed produced for advertising or trade purposes ( see Messenger v. Gruner & Jahr Printing & Publ'g, 94 N.Y.2d 436, 441 [2000] ). The exemption reflects both the legislative intent and a means of protecting “constitutional values in the area of free speech ...” ( Howell v. New York Post Co., 81 N.Y.2d 115 [1993] ).

Rebecca Tushnet said...

*2 When a person's image is used to illustrate an article on a matter of public interest it is not considered used for the purpose of trade or advertising in violation of the statute unless the image has no real relationship to the article ( see Dallesandro v. Henry Holt and Co., 4 A.D.2d 470 [1957] [Display of plaintiff's image on book cover did not come within the prohibition of the privacy statute as plaintiff was the subject of the book and the image was illustrative of a matter of legitimate public interest.] ); see also Murray v. New York Mag. Co., 27 N.Y.2d 406 [1971] [Defendant's use of a picture of plaintiff attending a parade for the front cover of its magazine did not violate Civil Rights Law § 51 as the photograph was related to the subject matter of an article in the magazine] ). If there exists a reasonable relationship between the image and the subject matter contained in an article, the use of the image is not actionable ( see Murray v. New York Mag. Co., supra ).

This exception also applies to fictionalized accounts of events in a person's life depicted in a film or novel ( see Rogers v. Grimaldi, 695 F.Supp.112 [1988] [use of Ginger Roger's name in title of movie not actionable as the title was related to the content of the movie]; Hicks v. Casablanca Records, 464 F.Supp. 426 [1978][right of publicity did not attach to fictionalized account of true incident that occurred in the life of Agatha Christie]; Frosch v. Grosset & Dunlap, Inc., 75 A.D.2d 452 [1965][use of Marilyn Monroe's name and images in biography' was not violative of the statute], as well as to work's of satire or parody ( see Hampton v. Guare, 195 A.D.2d 366 [1993][a play inspired by the true life events of plaintiff was not actionable]; University of Notre Dame Du Lac v. 20th Century-Fox Film Corp., 22 A.D.2d 452 [1965][film and novel parodying the University not actionable]; Altbach v. Julon, 302 A.D.2d 655 [2003][oil painting caricature of town justice not actionable]. When the primary purpose of the use is newsworthy' or of a public interest', incidental or ancillary commercial use of a person's image is not actionable ( see Nussenzweig v. DiCorcia, 11 Misc.3d 1051(A) [2006] ).

In the instant matter, the use of Yasin's picture on the front cover of the book Baby Doll does not fall within the newsworthy' or public interest' exception. It is undisputed that there is no relationship between Yasin's picture and the subject matter contained in the book; which is admittedly a pure work of fiction that neither references Yasin by name or otherwise identifies her as a character in the book.

Furthermore, although the use of a person's image in a work of art has also been held to be a constitutionally protected form of free speech exempt from the proscription of Civil Rights Law § 51 ( see Hoepker v. Kruger, 200 F.Supp.2d 340 [2002] [collage of plaintiff's image shown in museum and contained on various items sold in gift shop]; Simeonov v. Tiegs, 159 Misc.2d 54 [1993] [bronze bust of plaintiff's likeness]; Nussenzweig v. DiCorcia, supra [10 photographic prints of plaintiff's portrait] ), this court does not consider the instant photograph artwork'. Rather, the court finds that the use of Yasin's image on the front cover of defendants' book is purely for marketing and trade purposes; solely as a means to attract customers and generate sales.

Rebecca Tushnet said...

*3 In view of the foregoing, the defendants unauthorized use of Yasin's image on the front cover of the Baby Doll book violates her statutory right to privacy pursuant to Civil Right's Law § 51. Accordingly, plaintiff Yasin's motion for a permanent injunction is granted and the defendants' are prohibited from further selling, displaying, or using her image. Yasin's motion for summary judgment on the issue of liability for commercial misappropriation is granted and defendants' cross-motion for summary judgment dismissing Yasin's complaint is denied.

This constitutes the decision/order of the Court.

Anonymous said...

Thank you for posting the case.

I too find it odd in light of Messenger.

I'm even more confused by the art exception. As in, I have no idea until a judge says it's art whether it is art.

You can't put my photo on a non-fiction book to sell the book.

But you can sell my photo directly because that's "art" ? Or you can only sell up to 10 copies ? Or I have to prove I'm an "artist" ? What is the legal test for what is art ?

Do you just roll the dice and hope the judge likes your work and calls it art ?

Razzberry Jam said...

Using the image as part of a collage piece (IE one original artwork) is art.

Using the image as a book cover, selling individual prints, or putting it in an ad is not.

"Collaging" it together with other images as a digital piece in Photoshop is NOT art in the way that using it in a physical piece of art is. (Not a lawyer.)