Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, April 28, 2006

Athlete Obtains Preliminary Injuction Against Custom Swimwear Manufacturer for Unauthorized Use of Image

South African Olympic champion Richard Schoeman entered into an agreement with custom swimwear manufacturer Agon Sports to allow his photograph to be used in its 2004 catalogue. Agon, however, used the photo in its 2005 catalogue, whereupon Schoeman's attorney asked Agon to desist from further use of Schoeman's image. Schoeman sued under New York Civil Rights Law [sections] 50 and 51 claiming violation of his right of privacy.

According to the court, "In order to establish liability for invasion of the right to privacy under New York's Civil Rights Law, the Plaintiff must demonstrate four elements; to wit: the defendant (1) used the plaintiff's picture for advertising or trade purposes (2) within New York (3) without Plaintiff's consent and (4) there was a direct and substantial connection between the appearance of plaintiff's name or likeness and the main purpose and subject of the work....The purpose of using Schoeman's picture was indisputably for advertising or trade. Schoeman, an Olympic gold and silver medalist swimmer, is well recognized within the international swimming community as a result of his great success and prowess in his sport. Defendant's catalogue is a publication used for the sole purpose of selling swimming apparel. Agon has admitted using Plaintiff's picture in its 2005 catalogue. Thus, Plaintiff's picture was directly and substantially used to increase sales of Agon's swimming apparel and, ultimately, generate profits. The fact that the product being sold is swimming apparel and that Plaintiff is a world renowned swimmer establishes that there is a direct and substantial connection between the use of Plaintiff's picture and the main purpose of the work....Civil Rights Law §§ 50 and 51 apply to any use of a person's picture or likeness for advertising or trade purposes whenever the Defendant has not obtained the person's written consent to do so. It would, therefore, apply in cases where the plaintiff generally seeks publicity, for commercial purposes but has not given written consent for a particular use....Schoenman, who has consciously sought to establish publicity value for his persona and likeness cannot be exploited by Agon without his consent or due compensation....It is undisputed that Plaintiff did not give Defendant consent to use his image or likeness in the Agon 2005 catalogue. Originally, in 2003, he did give his consent for the 2004 catalogue but nothing more. Plaintiff's consent expired in 2004. On or about February 14, 2005, Plaintiff's attorney sent a letter to Jennifer Escalas of Agon, demanding that Defendant cease and desist from any further use of his image in any manner whatsoever. Thus, it was patently clear to Agon that Plaintiff did not consent to Defendant's continued use of his image beyond the 2004 catalogue....The use of Plaintiff's picture was not "incidental" or "isolated". Schoeman's picture was directly related to the purpose of the catalogue. Even after written demand was made to cease and desist its unauthorized use, Agon used Plaintiff's picture for the purpose of selling its sports apparel. Therefore, under Civil Rights Law §§ 50 and 51, Schoeman has demonstrated a likelihood of success on the merits of the case."

However, the court limited the scope of the injunction. "It is undisputed that Schoeman's identity was impermissibly misappropriated for the purposes of trade and advertising. Therefore, he has suffered harm. However, the relief cannot be as broad as he seeks. Advertisements that have already been published are not subject to recall as a form of relief based on a violation of Civil Rights Law §51....Agon has already distributed the 2005 catalogues with Schoeman's picture in it. The recall of all of the catalogues distributed, many of which have been delivered to private residences, would be nearly impossible. Directing and enforcing a recall and retraction will place an unacceptable financial burden on Defendant, especially where Plaintiff can be fully compensated monetarily. Therefore, this branch of injunctive relief, seeking the recall of the 2005 Agon catalogue, must be denied. With respect to Agon's prospective use of Schoeman's picture, an injunction barring its further use must be granted....To allow Agon to continue to use Schoeman's picture in the future would violate his right to privacy. There can be no doubt but that as a world class athlete, Schoeman has a limited amount of the time in which he will remain an elite competitor and in the public eye. Thus, he has an absolute right to determine how to best exploit his talent and renown. Neither Agon nor anyone else should be permitted to deprive Schoeman of this well-earned right...."


"In the face of Agon's admitted knowledge that Schoeman withdrew his consent to the use of his image and likeness, it seems unlikely that the injunctive relief granted herein will be found to be improvident. However, since establishing an undertaking is mandatory to prevent an injunction from being voidable...the Court sets an undertaking in the sum of $1,000. "

Read the entire ruling here.

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