Nieves v Home Box Off., Inc.
Annotate this CaseDecided on January 10, 2006
Supreme Court, NY County
Chanti Nieves, Plaintiff,
against
Home Box Office, Inc., STICK FIGURE PRODUCTIONS INC., TIME WARNER INC., STEVEN CANTOR, DANIEL LAIKIND, PAX WASSERMAN, MATTHEW GALKIN, JULIE GOLDMAN, CAROLINE STEVENS and KRYSANNE SATSOOLIS, Defendants.
100966/2005
Plaintiff's Counsel
Arshack & Hajek, PLLC
225 W. 57th Street - Suite 300
New York, NY 10019
212 582-6500
Defendant's Counsel
Davis Wright Tremaine, LLP
1633 Broadway - 27th Floor
New York, NY 10019
212 489-8230
Debra A. James, J.
Defendants move pursuant to CPLR 3211 (a) (7) to dismiss this action brought pursuant to Civil Rights Law §§ 50, 51. The court shall deny the motion because the pleading is valid and there are factual issues requiring assessment.
Plaintiff alleges that the defendants used plaintiff's likeness in a derogatory manner on an episode of a television shown on the Home Box Office (HBO) cable television network without permission or authorization. As conceded by the defendants, "in New York privacy claims are founded solely upon sections 50 and 51 of the Civil Rights Law. The statute protects against the appropriation of a plaintiff's name or likeness for defendants' benefit. Thus, it creates a cause of action in favor of [a]ny person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without * * * written consent.' The action may be brought to enjoin the prohibited use and may also seek damages for any injuries sustained including exemplary damages for a knowing violation of the statute." Cohen v Herbal Concepts, Inc., 63 NY2d 379, 383 (1984).
"[O]n a motion to dismiss a complaint, made pursuant to CPLR 3211 (subd [a], par 7), for failure to state a cause of action every fact alleged must be assumed to be true and the complaint liberally construed in plaintiff's favor." European American Bank and Trust Co. v Strauhs & Kaye, 102 AD2d 776, 777 (1st Dept 1984) (citation omitted). Therefore, the only question is whether assuming the truth of the facts alleged in the complaint the plaintiff sets forth a prima facie case of a statutory violation. The court concludes that plaintiff has surmounted the CPLR 3211 hurdle.
Plaintiff first alleges, and defendants concede, that plaintiff's image was used in their television program and broadcast. Plaintiff next alleges that the use of plaintiff's likeness was for defendant's business and commercial purposes. Finally, plaintiff alleges that the use was unauthorized without any consent of the plaintiff. Therefore, assuming the facts alleged in the complaint to be true, plaintiff would be able to establish a prima facie case of the violation of [*2]Civil Rights Law §51.
The defendants' central argument is that their use of plaintiff's likeness was not for advertising or trade purposes under the statute. The court notes that in this case the determination cannot be made as a matter of law because there is a dispute at to the purpose for which plaintiff's likeness was employed. That is, unlike the case of Arrington v New York Times Co. (55 NY2d 433, 441 [1982]) where it was conceded that the plaintiff's image was being used to demonstratively illustrate the broader editorial message of a newspaper article, in this action the plaintiff alleges that the participants in the program directly commented on her image in a derogatory and degrading manner utilizing what can best be described as scatological terminology.
"It is settled that a picture illustrating an article on a matter of public interest is not considered used for the purposes of trade or advertising within the prohibition of the statute unless it has no real relationship to the article or unless the article is an advertisement in disguise." Stephano v News Group Publications, Inc., 64 NY2d 174, 185 (1984). Even accepting defendants' assertion that the television show here was a "documentary," there are still issues of fact regarding whether the use of plaintiff's image and accompanying commentary bears a real relationship to a "documentary" about a "bounty-hunting" family. The critical difference between this action and the authorities cited by the defendants is that in those case the courts determined based on uncontested facts that it was clear as matter of law that the use of person's image related to the subject matter of the published work. On this motion the defendants' only proffered relationship between the use of plaintiff's image and the television show is that the plaintiff was standing on a New York street corner while the defendants were filming. Clearly the court will have to make a factual determination based upon the use of the plaintiff's image and the content of the program in order to determine whether the defendants meet the "real relationship" standard.
Accordingly, it is
ORDERED that the defendants' motion is DENIED; and it is further
ORDERED that the parties are directed to attend a preliminary conference on January 31, 2006, at 9:30 A.M., at the Courthouse, IAS Part 59, Room 1254, 111 Centre Street, New York.
This is the decision and order of the court.
Dated: January 10, 2006
APPEARANCES OF COUNSEL:
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