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Tuesday, July 29, 2008

New York Court Allows Model To Proceed Anonymously Against Firm, Production Company For Using Her Likeness in Advertising Without Permission

A New York trial court ruled that a model may proceed in her suit against a jewelry maker and a production company which used her performance without permission in an edited video.

"Plaintiff, a 37 year-old woman, has worked as a model, an on-air host for a cable network program, an actor and an elementary school teacher. She, at all times, "has worked hard to project a decent and wholesome image and has been extremely careful to avoid doing any work in the industry that would cheapen or tarnish her reputation, such as nudity, pornography or degrading depictions in any manner."

On November 2, 2007, plaintiff answered an advertisement on an actors' website, placed by Q2 Entertainment, Inc. (Q2), a production company. Mitchell Goldman is the principal of Q2. The ad stated it was casting for a viral web spot commercial for Szul Jewelry, Inc. and its subsidiary Szul.com (collectively "Szul")....According to the complaint, the idea presented at the audition was that "a shy, average joe would place a necklace on the neck of a beautiful woman and--due to the special qualities of the necklace--cause the woman to get excited."

"Plaintiff and a male actor were hired, and shooting for the advertisement occurred on November 9, 2007. Plaintiff alleges that the majority of the filming was comedic, but at the end, the director told plaintiff to feign excitement while lying down and without smiling, while breathing heavily and while moving her hands from her chest to the back of her neck. He explained that this portion of the filming was "merely the last piece of an extended comedic scene" and would be shown for a limited duration.

Plaintiff was paid $ 200 for her acting but was never asked to sign a Model's Release or authorize the use of her likeness for any advertising or trade purpose. Specifically, she did not authorize the use of her likeness "for an advertisement which depicted her exclusively simulating (or appearing to have) an orgasm in a non-comedic context." Plaintiff contends that the footage filmed was heavily edited to create a 35 second, non-comedic video depicting plaintiff alone, simulating an orgasm.

"On November 21, 2007, Szul released the advertisement on You-Tube; it was entitled "Rock Her World." Plaintiff contends that she was not provided with a copy of the video, despite repeated requests, until November 26. On that same day, Szul issued a News Release regarding the video, describing it as "an aggressive viral marketing strategy targeting Generation 2.0" and featuring "a sexy. [sic] Adult storyline."

"Plaintiff alleges she complained of the commercial on December 3, fearing harm to her career and reputation. Subsequently, both Goldman and Szul endeavored to obtain a Model's Release from her, consenting to use of the video. Despite drafts of a release sent to her by Goldman and Szul and threats of suit by Szul, plaintiff refused to sign such a release."

"By December 30, the video had been viewed on You-Tube more than 11,000 times. After this suit was brought and plaintiff demanded that the commercial be removed, the video continued to be shown, the fact of the lawsuit was leaked and "a media frenzy occurred," transmitting the video "to millions of television viewers worldwide." Despite a subsequent cease and desist letter, Szul continued to use the video. As of January 16, 2008, the video had received more than 699,000 user hits on the Internet. Szul commenced removal of the video from circulation on January 17. Plaintiff contends that as a result of Szul's use of the video, hundreds of demeaning and insulting comments were posted about plaintiff, blacklisting was threatened by the entertainment industry and she has suffered loss of reputation, lost earnings and emotional distress. In addition, she contends that Szul has garnered a great deal of publicity and has benefitted from her services. Plaintiff asks for a declaration that defendants violated New York Civil Rights Law §§ 50 and 51, a permanent injunction and compensatory and punitive damages."

...

"Defendants move to dismiss the complaint, submitting the video's script, the cancelled check for $ 200 and e-mails which they allege prove that plaintiff knew of the video's sexual nature when she performed for it, that she had reviewed the video prior to its release, and that she had consented to its use and distribution over the Internet. Alternatively, defendants move for dismissal as to defendant Goldman who they argue has not been alleged to have used plaintiff's likeness for advertising or trade. Finally, defendants argue that if the case were permitted to proceed, its caption should be amended to reflect plaintiff's real name. They contend that the use of plaintiff's name is necessary to obtain meaningful discovery. Further, they claim that the use of a pseudonym by plaintiff undermines the presumption of openness inherent in judicial proceedings."

...

"Defendants argue that plaintiff should be compelled to proceed in this action under her legal name and that any sensitive records can be sealed. They contend that plaintiff has not alleged a substantial privacy right--i.e., direct harm--sufficient to overcome the constitutional presumption of openness in judicial proceedings. Moreover, defendants claim that they are prejudiced in their ability to conduct discovery due to plaintiff's use of a pseudonym. And, they argue that plaintiff's counsel has repeatedly discussed the litigation with numerous media outlets, diminishing the very privacy rights plaintiff seeks to protect and using plaintiff's anonymity as a sword for the purpose of distorting the facts and defaming defendants."

...

"In determining a motion under CPLR 3211(a), the court must "accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." ...Since the court's inquiry on such a motion is narrow, it must liberally construe the complaint, accepting as true both the material allegations of the complaint and whatever can be reasonably inferred from them.... Factual claims in the complaint, however, if contradicted by documentary evidence,  are not entitled to such consideration....A complaint may be dismissed if documentary evidence submitted by the defense resolves all factual issues as a matter of law and disposes of the plaintiff's claim....New York does not recognize a common law right to privacy....The sole legal avenue available to protest the use of one's name, portrait or picture is Civil Rights Law §§50, 51....The elements of a claim brought pursuant to §§50, 51 are: 1) usage of a person's name, portrait, picture or voice, 2) in New York State, 3) for advertising or trade, 4) without the person's written consent.... In addition, a consent may be limited in time, form or forum; "'a defendant's immunity from a claim for invasion of privacy is no broader than the consent executed to him.'".... Here, the parties do not dispute that plaintiff's picture was used in New York State for advertising purposes. The dispute centers on whether such use was based on plaintiff's written consent. The negotiated check for a Szul talent fee does not conclusively establish that plaintiff consented to the use of her photograph and voice....Nor does the other documentary evidence produced demonstrate the parameters of plaintiff's consent. The evidence does not refute her allegations that any consent she may have given was for use of the video in a different manner, in a different venue for a different purpose. Consequently, defendants' motion to dismiss based upon documentary evidence is denied. CPLR §3211(a)(1). However, the action brought against defendant Goldman in his personal capacity is dismissed."

...

"This is not a case wherein plaintiff has asked to seal the record or close the courtroom. Rather, plaintiff commenced the action using a pseudonym, and defendants now move to compel the use of her legal name on court papers. Defendants know plaintiff's name, and plaintiff has consented to the use of her legal name for discovery purposes. The sole issue here is plaintiff's anonymity on court papers.

As noted by Justice York in Anonymous v. Anonymous, 191 Misc.2d 707, 744 N.Y.S.2d 659 (Sup. Ct., N.Y. Co., 2002), there is a dearth of case law in New York speaking to a party's right to proceed by pseudonym. But see Doe No. 1 v. CBS Broadcasting Inc., 24 A.D.3d 215, 806 N.Y.S.2d 38 (1st Dept. 2005)(plaintiffs not permitted to proceed by pseudonym on case alleging trespass to chattel); Doe v. Kidd, 19 Misc. 3d 782, 2008 NY Slip Op 28111(Sup. Ct., N.Y. Co.) (plaintiff not permitted to proceed anonymously in civil battery and assault  [*15]  case); Anonymous v. Duane Reade Inc., 10 Misc.3d 1056A, 814 N.Y.S.2d 559 (Sup. Ct., Kings Co., 2005)(plaintiff permitted to proceed anonymously in HIV case); Doe v. N.Y.U., 6 Misc. 3d 866, 786 N.Y.S.2d 892 (Sup. Ct., N.Y. Co., 2004)(plaintiff permitted to proceed by pseudonym in civil sexual assault case); Doe v. Bellmore-Merrick Cent. H.S. Dist., 1 Misc.3d 697, 770 N.Y.S.2d 847 (Sup. Ct., Nassau Co., 2003)(plaintiff permitted to proceed anonymously in civil sexual abuse case). Reviewing the New York cases that do exist and the Federal cases on the subject, it is clear that courts have discretion in determining the issue and do so by balancing the privacy interests of the party seeking anonymity against the general presumption favoring open trials and the risk of prejudice to the opposing party.

"Among the factors considered in permitting the use of a pseudonym are: "whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature" (James v. Jacobson, id. at 238; whether the party seeking anonymity has an illegitimate ulterior motive; the extent to which the identity of the litigant has been kept confidential; whether identification poses a risk of mental or physical harm, harassment, ridicule or personal embarrassment; whether the case involves information of the utmost intimacy; whether the action is against a governmental entity; the magnitude of the public interest in maintaining confidentiality or knowing the party's identity; whether revealing the identity of the party will dissuade the party from bringing the lawsuit; whether the opposition to anonymity has an illegitimate basis; and whether the other side will be prejudiced by use of the pseudonym.... A particularly relevant factor is whether "the injury litigated against would occur as a result of the disclosure of the plaintiff's identity....The court finds that plaintiff's privacy interest justifies her use of a pseudonym.

"The instant case involves a sexually explicit tape which may still be in circulation, and will no doubt center on information about plaintiff of a sensitive and highly personal nature. Plaintiff has voiced concern for her privacy, her reputation and her livelihood prior to the start of proceedings, has kept her identity confidential throughout and has complained of harassment, ridicule and embarrassment. The case is not brought against a government entity, a factor this court believes would militate in favor of the public's right to know. Instead, defendant is a private commercial enterprise and has gained financially by the publicity. Defendant is aware of plaintiff's identity and, upon agreement of plaintiff, may proceed with discovery using plaintiff's legal name. It is not prejudiced at this time. The only purpose revelation of plaintiff's name could have would be to further discomfit plaintiff and perhaps deter her from litigating the matter. In fact, revelation of plaintiff's identity would undermine the litigation by denying a portion of the relief ultimately requested in the action. The public has an interest in seeing this case determined on the merits, after the parties have had an opportunity to fully and properly litigate the issues."

The case is Doe v. Szul, 2008 N.Y. Misc. LEXIS 3091; 239 N.Y.L.J. 98.

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