Helm v BBDO Worldwide, Inc.

Helm v BBDO Worldwide, Inc. 2012 NY Slip Op 01573 Decided on March 1, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 1, 2012
Tom, J.P., Friedman, Acosta, DeGrasse, Román, JJ.
6950 604420/04

[*1]Mark Levon Helm, etc., Plaintiff-Appellant,

v

BBDO Worldwide, Inc., Defendant-Respondent.




Bleakley Platt & Schmidt, LLP, White Plains (John I. O'Neill
of counsel), for appellant.
Davis & Gilbert LLP, New York (Guy R. Cohen of counsel),
for respondent.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered August 5, 2010, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing plaintiff's cause of action under New York Civil Rights Law § 51 and denied plaintiff's motion for partial summary judgment on the § 51 claim, unanimously affirmed, without costs.

Plaintiff's claim under New York Civil Rights Law § 51, which prohibits the use of a person's "name, portrait, picture or voice" for advertising or trade purposes without written consent, was properly dismissed. By contract, plaintiff broadly granted his record company the "exclusive and perpetual right to use and control" plaintiff's sound recordings and the "performances embodied therein," which included the recording that was licenced to and used by defendant in a third-party television commercial. Although plaintiff claims that he never gave written consent for the use of his voice, as it is embodied in that recording, for the instant advertising purpose, he unambiguously authorized defendant to license the recording in the contract (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 1, 2012

CLERK