Shatriya v Gilden
Decided on August 23, 2007
Supreme Court, New York County
Wolfgang Shatriya, Plaintiff
Bruce Gilden, Daimler Chrysler Corp., Leica, Inc., and Magnum Photos International, Inc., , Defendants.
Plaintiff's counsel is BRUCE LEVINSON, ESQ., 747 THIRD AVENUE - 4TH FLOOR, NEW YORK, NEW YORK 10017
Defendants' counsel are:
HERZFELD & RUBIN, 40 WALL STREET, NEW YORK, NEW YORK 10005
WILL & BOUREGY, P.C., 30 NORTH WILLIAM STREET, PEARL RIVER, NY 10965
BARBARA T. HOFFMAN, 330 WEST 72ND STREET-PENTHOUSE, NEW YORK, NEW YORK 10022
Judith J. Gische, J.
Plaintiff seeks monetary damages for breach of contract and injunctive relief in connection with the alleged misuse of photographs of him. The defendants have all separately moved for summary judgment dismissing the complaint. Plaintiff has cross moved for summary judgment against the defendants and for an order permanently enjoining the defendants from keeping his photographs posted on the internet. He also contends these photos were improperly used in print ads. Since issue has been joined, but the note of issue not yet been filed, these motions are all timely and will considered on the merits. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004). They [*2]are consolidated for consideration and decision in a single decision and order since they all arise from the same dispute and present related legal arguments. The court's decision follows.
Allegations Made and Arguments Presented
Plaintiff Wolfgang Shatriya is a model ("plaintiff" or "Mr. Shatriya"). His modeling agent is Ikon, a non party to this action. He contends that he was hired to pose for photographs taken by defendant Bruce Gilden ("Gilden") for use in connection with a joint 50th anniversary celebration ("the project") of the Mercedes Benz brand of sports cars and Leica camera lenses. Gilden took these photographs over the course of five days, from April 1 through April 5, 2004 ("the photos"). Gilden is a professional photographer and a member of defendant Magnum Photos International, Inc. ("Magnum"), a photographic agency that has a number of clients, including, in this case, Leica, Inc. ("Leica") and Mercedes Benz, sued herein as Daimler Chrysler Corporation ("DCC").
While being photographed, plaintiff learned the photos would be, or at least could be, posted on the web. They have in fact been posted on "Leica Culture," a web site owned by defendant Leica. The photographs also appeared in an issue of Leica magazine, in a German Mercedes Benz magazine, and on another website called www.ourSL.com, that is not owned by any of the parties to this action.
Plaintiff has asserted five causes of action. His first cause of action, for breach of contract, is asserted only against Magnum. His claims for "professional injury" (3rd cause of action) and permanent injunction (5th cause of action) are asserted against all defendants. His claims for tortious interference with business contract (2nd cause of action) and the appropriation of his likeness for a commercial purpose (a violation of New York Civil Rights Law §§ 50 and 51) (4th cause of action) are asserted against defendants Gilden, Leica and DCC only.
Breach of contract (1st cause of action)According to plaintiff, his contract with Magnum does not allow for the usage of the photos on the internet. Thus, he contends Magnum breached its contract with him by allowing Leica to post them on its Leica Culture website.
Plaintiff relies on his deposition testimony, the affidavit of his booking agent, Ameerah Omar, an email and two estimates (one before the photos were taken and one after) to prove the material terms of his contract with Magnum, and to also prove he never provided written consent to have his photos appear on the internet. According to plaintiff, the contract consists of an email between Ms. Omar and Diane Raimondo, Magnum's Advertising Director. This email dated May 11, 2004 consists of the following:
Dear Am[eerah]: Per your discussion w/Mark Lubell, we have removed internet usage from the agreement.Best,Diane RaimondoMagnum, NY212 929 6000 x 110.Leica/Mercedes FINAL FINAL LICENSE AGREEMENTMay 11, 2004Gero FurchheimLeica Camera[other words in German language have been omitted]Terms: 100% Expense Advance/Fees 30 Days
PHOTOGRAPHER:Bruce Gilden/Magnum Photos ASSIGNMENT:Shoot 15 images of couple, Mercedes, LeicaUSAGE:Trade show exhibitions, PR only two yearsASSIGNMENT:4-day shoot in New York City
Wolfgang Shatriya [*3]
Plaintiff contends that not only is this the contract, it is also his release of the photos because it is the only document he signed and that without his signature, the photos could not have been released or used for any purpose.
Ms. Omar has provided her sworn affidavit stating that she cannot remember the details of the project and she does not have any documents about it. She states, however, that as a booker she would have been responsible for negotiating the terms of a model's service and obtaining the model's permission to book the job. She also states that "in the normal course" of business the model receives a voucher at the end of the job which, when signed, serves as a release.
Plaintiff alleges that there was an earlier estimate dated March 2004 (before the photos were taken) that did include a provision that the photos could be used on the internet. He alleges, however, that after he complained to his agency (Ikon), it was deleted. The March 2004 estimate provides as follows:
PHOTOGRAPHER:Bruce Gilden/Magnum Photos
ASSIGNMENT: Shoot 15 images of couple, Mercedes, Leica
USAGE: Trade show exhibitions, PR only two years*, internet
ASSIGNMENT: 4-day shoot in New York City
[ * * * ][FN1]
"NOT INCLUDED IN THIS ESTIMATE
*PR is editorial press releases only and does not include consumer advertising. If Leica/Mercedes would like to use Gilden images in print advertising, rates need to be renegotiated w/Magnum [ * * * ]."
NOTE: PHOTO CREDIT NEEDS TO APPEAR ON ALL PHOTOGRAPHS
Bruce Gilden/ Magnum"
Plaintiff compares the March 2004 estimate to a later one dated May 11, 2004. The May estimate coincides with the May 11, 2004 email between Ms. Omar and Ms. Raimondo. He argues this is evidence that internet usage was removed from his contract and that the May 11, 2004 email when coupled with the May 2004 estimate comprise his "final" contract and release.
Gilden and Magnum are jointly represented and that together oppose plaintiff's motion for summary judgment, and seek summary judgment dismissing the complaint against Magnum for breach of contract . They rely upon plaintiff's EBT testimony, as well as a sworn affidavit by Ms. Raimondo and a different sworn affidavit by Ms. Omar prepared in support of their motion. They also rely upon the same documents plaintiff does, but with different effect.
Ms. Raimondo states that she prepared the March 2004 estimate, based upon negotiations with Ikon and that the estimate was a preliminary budget and license agreement for the project. She agrees that in May 2004, after the shoot was completed, she learned that plaintiff would not sign a release of the photos. Ms. Raimondo contends she sent Ms. Omar an email on May 11, 2004. However, according to Ms. Raimondo it only stated the following: "Dear Am[eerah]:Per your discussion w/Mark Lubell, we have removed internet usage from the agreement.Best,Diane RaimondoMagnum, NY 212 929 6000 x 110." Thus, Ms. Raimondo contends the email plaintiff claims is the contract and release is a composite and she did not prepare it. In her affidavit, Ms. Omar also states the email is a composite, but that she does not remember anything else about this project because she has so many clients.
Gilden and Magnum argue that even assuming plaintiff did not expressly consent to internet usage of the photos, such use is not expressly prohibited by any document he professes is his contract/release and/or license agreement. They contend the term "PR" in the estimates and email, is ambiguous and could mean different things in [*4]different contexts, thus it is subject to a factual interpretation. Ms. Raimondo states in her affidavit that in 2004, "[p]ublic relations was commonly understood to be for editorial usage and brand promotion and does not necessarily preclude Internet use, if Internet use is in the PR/editorial category." Ms. Raimondo also states that plaintiff complained to Magnum about his photos appearing on a site called www.ourSL.com. Although she thought the use was not a problem, she nonetheless called the site owner and asked where he had gotten the photos and that he remove them. He reportedly told her he had scanned them in from a flyer of the anniversary celebration.
Gilden and Magnum also contend that plaintiff has sustained no provable damages. According to the sworn affidavit of Ms. Saldana-Aktipis, Ikon's president (plaintiff's modeling agency), plaintiff later obtained an assignment with BMW which included internet usage and paid him almost the same.
Leica and DCC support all of Magnum's arguments to dismiss the breach of contract action, even though it is not asserted against them.
Tortious Interference with Business Contract (2nd Cause of Action)
The basis for his tortious interference with business contract claim against DCC and Leica is that these companies had a private side agreement to post the photos on the web, notwithstanding his contract with Magnum that they could not be.
The contract (in German, but translated) is between "DaimlerChrysler AG and Leica Camera AG" as "joint initiators to create and run a photo project in relations to the birthdays of Mercedes SL and Leica M . . ." The contract allows the companies to use the photos for "PR for one year, photo exhibition, usage rights for showrooms. The usage rights include commercial exploitation as well as the costs of technical conversion." Thus, plaintiff contends that Leica and DCC committed a tort by intentionally interfering with his contract with Magnum.
DCC claims (once again) that plaintiff has sued the wrong company and that it had (has) no involvement whatsoever with the Mercedes Benz brand line, or this anniversary project. The celebration involved a different company called "DaimlerChrysler, AG," a publicly traded German company that manufactures Mercedes Benz. DCC provides the sworn affidavit of its general counsel, Louann Van Der Wiele who describes DCC's separate identity. It also provides the sworn affidavit of Robert E. Sarkella, DCC's Senior Manager who states that DCC had no involvement in this project. DCC contends that plaintiff's own deposition is that the person he met at the shoot was Stephen Diehl, who is in charge of global product communications for DamilerChrysler AG in Stutgart, Germany. DCC seeks the imposition of sanctions.
Leica separately contends that it was not a party to Magnum's contract with plaintiff, it did not know about it, and its own contract with Mercedes Benz pre-dated any contract that plaintiff claims to have rights under. In any event, since it was not bound by the terms of the agreement between Magnum and plaintiff (or Ikon), its own contract with DCC is not a tortious act. Leica, like DCC, seeks Part 130 sanctions against plaintiff.
Gero Furchheim, Leica's Corporate Communications Division Manager, offers his sworn affidavit on behalf of Leica, stating that he was personally involved with the project. He contends he only knew about the March estimate and that the use of the photos was accordance with that estimate, and that he only learned there was a May 2004 estimate, afterwards. By then he had already been billed by Magnum (consistently with the March estimate) and paid the bill which was dated March 31, 2007. He contends he never saw any bills or estimates after, nor the May 11, 2007 email.
Plaintiff, in response to DCC's motion for summary judgment, state that the corporate structure for "DaimlerChrysler" is too confusing for him to follow and the companies are for intents and purposes all the same. He urges the court to let him serve an amended complaint to bring in the German DaimlerChrysler, AG company into this lawsuit, if he sued the wrong company.
Gilden seeks the dismissal of the intentional tort cause of action against him because plaintiff has not come forward with evidence of a valid contract between himself and a third party that Gilden (or Magnum) has intentionally procured the breach of.
Professional Injury (3nd Cause of Action)
Plaintiff's professional injury cause of action is based upon his claim that Mazda "almost" hired him in May 2006, but then it backed out after he disclosed he had been photographed for the Mercedes Benz brand. He claims he has lost modeling assignments with other car companies because the posting of the photos on the web has caused him to become identified with the Mercedes Benz product and other car companies will not hire him to model their brands of cars.
Claims Under New York Civil Rights Law §§ 50 and 51 (4th Cause of Action)
Plaintiff contends that the use of his photos on the internet in connection with the Leica Culture website is a violation of his civil rights because Leica used them to advertise its products to consumers (cameras and lenses), [*5]without his permission.
As with other claims, DCC contends plaintiff has sued the wrong company, and it joins in the arguments presented by Leica.
Leica seeks summary judgment dismissing this cause of action on the basis that it is time barred because a one year statute of limitations applies to actions brought under Civil Rights Laws §§ 50 and 51 and the photos were first posted on that website in 2004.
Alternatively, Leica contends even if the claim is not time barred, plaintiff has not proved the terms of his contract forbid the use of the photos on the internet because the contract he relies on allows the photos to be used for public relations and this term is not clearly defined, but subject to interpretation. Leica contends its Leica Culture website is not selling anything to consumers - they cannot click and buy a product - but is merely an electronic form of public relations site, limited to promoting goodwill, containing editorial content, and a form of visual art.
Although plaintiff initially claimed Leica could not publish the photos in print media, he now appears to have abandoned this claim. Nonetheless, Leica contends that the print usage is absolutely permitted under plaintiff's agreement with Magnum.
Plaintiff contends his claim is not time barred, while conceding this case was not commenced within a year of the first appearance of the photos on the internet. He argues, however, that his claims are nonetheless timely based upon the application of the "continuous wrong" doctrine [Sporn v. MCA Records, Inc., 58 NY2d 482 (1983)] since the photos remained on the web, and were therefore multiple "re-publications."
Permanent Injunction (5th Cause of Action)
Plaintiff contends that the photos must be removed from the web, and cannot be used on the web because this use violates the contract he has with Magnum, and none of the defendants have obtained his permission to use his photos for a commercial purpose.
1. Law Applicable to Motions for Summary Judgment
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp ., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). A party may not defeat a motion for summary judgment with bare allegations of unsubstantiated facts. Zuckerman v. City of New York, supra at 563-64.
When an issue of law is raised in connection with a motion for summary judgment, the court may and should resolve it without the need for a testimonial hearing. See: Hindes v. Weisz, 303 AD2d 459 (2nd Dept 2003). The question of whether the plaintiff has alleged a concrete specification of the Industrial Code, and whether the condition alleged is within the scope of the Industrial Code regulation, usually presents a legal issue for the court to decide. Messina v. City of New York, 30 AD2d 121 (1st Dept 2002).
2. DCC's motion for summary judgment
DCC's motion for summary judgment is the simplest and will be addressed first. DCC contends, and has proved through admissible evidence, that it was sued in error. It is not the same company that has an agreement with Leica. The correct company appears to be "DaimlerChrysler, AG," a publicly traded German company. The sole argument advanced by plaintiff in opposition is that he sued the wrong company because he was "confused" and that all these companies are "the same" or alter egos. This argument does not defeat DCC's motion, and it must be granted ordering the dismissal of all claims against this DCC.
DCC contends, and plaintiff does not deny, that DCC notified him early on in this case - first in its answer, then again during discovery, and yet again in correspondence - that he had sued the wrong company. Rather than taking measures at that time, plaintiff did nothing. He now seeks permission to amend his complaint and sue the "right" company. Not only is his "request" presented informally, in opposition to DCC's motion, and therefore procedurally defective, even if it had been brought properly, it would be denied. He has offered no excuse, let alone a good one, for why he did not move for such relief sooner.
DCC seeks sanctions against the plaintiff and his attorney because it had to defend this action. Sanctionable conduct is that conduct which is "frivolous" and frivolous conduct is completely without merit in law, undertaken primarily to delay or prolong the case, or it asserts material factual statements that are false. Rules of Chief Administrative Judge, Part 130-1.1 (a), (c). Leica also seeks sanctions, presenting similar arguments.
Although the court believes plaintiff's handling of this case was sloppy, is conduct has not risen to the level [*6]of being sanctionable. Therefore DCC and Leica's motion for sanctions is denied.
3. Claim against Magnum for Breach of Contract
Although plaintiff's narrow claim is that Magnum breached its contract by allowing photos of him to be posted on the web, or used in other ways he did not authorize, he has failed to prove the first step of his claim, which is what the terms of his contract are.
The March 31, 2004 "estimate" was an estimate of costs that Magnum prepared for and sent to Leica. Leica paid the bill before any of the alleged modifications to the "contract" allegedly took place in May 2004. The invoice expressly indicates that the photos could be used on the web: "Usage rights include: trade show, PR and internet. No further rights granted. Copyrights remain property of Bruce Gilden/ Magnum Photos." That document and the payment for services is, at least a contract between Leica and Magnum, and it regulates how the photos could be used.
The May 11, 2004 email is a composite that no one can locate the original of, or lay the foundation for. No one knows who prepared it. Leica claims it is not bound by that email because it is between Ikon and Magnum, and Leica was not consulted or involved in the purported modification. Magnum contends (and even plaintiff admits) that the term "public relations" is entirely subjective, if not ambiguous. These are textbook factual disputes that the trier of fact has to decide. Plaintiff's and Magnum/Gilden's motions for summary judgment on the 1st cause of action for breach of contract because neither party has sustained its burden of proving by admissible evidence that there are no factual disputes for trial.
4. The Tortious Interference with Contract Claim
The elements of a tortious interference with contract claim is the existence of a valid contract between plaintiff and a third party, the defendant's intentional and unjustified procurement of the third party's breach of contract and resulting damages. JM Ball Chrysler LLC v. Marong Chrysler-Plymounth, Inc., 19 AD3d 1094 (4th dept. 2005).
Here, the contract that plaintiff claims was breached was between himself and Magnum not to post his photos on the web. Plaintiff relies upon an agreement between Leica and Magnum as the basis for his claim of interference because it permitted posting photos on the web. The are a number of problems with plaintiff's argument.
First, plaintiff has not proved, as a matter of law, what the terms of his contract with Magnum were and whether such a contract was in fact breached by the posting of his photos on the internet. Even if the court were to find a breach, the separate contract between Leica and Mercedes Benz does not prove that Leica either intentionally or unjustifiably procured a breach of the Magnum contract. Indeed, because the Leica contract is dated before plaintiff's contract with Magnum, plaintiff cannot prove that Leica even knew about the Magnum contract when the photos were posted to the internet.
Although this cause of action is also asserted against Gilden, plaintiff presents no facts at all that would support this cause of action against him.
Not only has plaintiff failed to prove his own prima facie case on the claim of tortious interference with contract, but he has failed to raise any legitimate questions of fact in opposition to Gilden or Leica's motion for summary judgment dismissing this cause of action. Therefore, Leica and Gilden's motions for summary judgment dismissing the second cause of action is granted.
5. Professional Injury (3nd Cause of Action)
Plaintiff's "professional injury" claim is somewhat unclear. There is no particular tort for professional injury. To the extent he seeks to assert a tort against Magnum which is identical to the breach of contract claim, it must be dismissed. Clark-Fitzpatrick, Inc. v. Long Island RR Co., 70 NY2d 382 , 389 (1987).
As to the remaining defendants, the support plaintiff's professional injury claim, is that he "almost" had a contract with Mazda, but they backed out once he disclosed he had posed for Mercedes Benz. At best, these fact set forth a cause of action for tortious interference with business relations. The court, therefore, will consider whether any of the moving parties have proved their entitlement to summary judgment.
Tortious interference with business applies to those situations where the third party would have entered into a contractual relationship with plaintiff but for the intentional and wrongful acts of defendant. In such an action, the motive for the interference must be solely malicious, or to inflict injury by unlawful means, beyond mere self interest or other economic considerations. Shared Communications Services of ESR, Inc. v. Goldman Sachs, 23 AD2d 162 (1st Dept 2005); MJ&K Co., Inc. v. Matthew Bender and Co., Inc., 220 AD2d 488 (2nd Dept 1995).
Plaintiff's claims on this cause of action fail because there is simply no proof that Gilden or Leica acted maliciously or with an intent to inflict injury on him by unlawful means. Summary judgment dismissing this cause [*7]of action against them must be granted, and plaintiff's cross motion for summary judgment denied.
6.Claims Under New York Civil Rights Law §§ 50 and 51 (4th Cause of Action)
The elements of a cause of action for violation of the statutory right to privacy are: (1) the use of a person's name, portrait, picture or voice (2) within the State of New York (3) for advertising purposes or the purposes of trade, (4) without written consent. Civil Rights Law § 51; Nussenzweig v. diCorcia, 38 AD3d 339, 346 (1st dept 2007). The statute of limitations on a privacy claim begins to run from the first unauthorized use of the photograph. Nussenzweig v. diCorcia, supra; Costanza v. Seinfeld, 279 AD2d 255 (1st dept. 2001).
While conceding that this action was not commenced within one year of the first use of the photos on the web, plaintiff nonetheless argues that the "continuous wrong" doctrine applies because the photos were not removed from the web until he brought this lawsuit, and therefore there were multiple re-publications of them extending the time limitations set forth in the CPLR. Sporn v. MCA Records, Inc., 58 NY2d 482 (1983).
This department adheres to the single publication rule, therefore the statute began to run when plaintiff's photos were first posted on the web in 2004, and expired well before this action was commenced in 2006. Nussenzweig v. diCorcia, supra. Therefore, this claim is time barred and defendant's motion dismissing this claim (4th cause of action) is granted and plaintiff motion for summary judgment is denied.
Since the court is able to resolve of plaintiff's Civil Right claim on the basis that it is time barred, it does not have to reach the further issue of whether the posting of the photos on the Leica Culture website is an unauthorized use of plaintiff's likeness. Nussenzweig v. diCorcia, supra at 341
Having dismissed all of plaintiff's causes of action, except the breach of contract claim against Magnum, the court finds no separate basis for the award of a permanent injunction against Gilden, Leica or DCC and this cause of action is dismissed as to them.
The courts next considers whether either plaintiff or Magnum are entitled to summary judgment on the permanent injunction claim in which plaintiff seeks an injunction "enjoining defendants from the continued use of plaintiff's likeness on the internet or any other form of media." The court finds they are not.
This relief is available only against Magnum as a potential remedy for the underlying breach of contract claim against this defendant if damages are otherwise an inadequate remedy. Back to Health Family Chiropractic Office, P.C. v. Murphy, 261 AD2d 494 (2nd Dept 1999); Picotte Realty, Inc. v Gallery of Homes, 66 AD2d 978 (3rd Dept 1978). Since the breach of contract claim must be tried, so too must any claim for a permanent injunction. Summary judgment in favor fo either plaintiff or Magnum is denied.
Plaintiff has raised other arguments as to whether he can recover under quantum meruit, if the court decides he has not proved the contract. He did not, however, assert a claim for quantum meruit in his complaint. In any event, although plaintiff has not proved the terms of his contract with Magnum, it is clear that they had some contractual agreement related to the taking of the photos and their use. Quantum meruit is an action for equitable relief based upon an implied contract. Precision Foundations v. Ives, 4 AD3d 589 (3rd Dept. 2004). It is an unavailable remedy where, as here, the services for which it is sought are covered by an express contract. Curtis Properties Corp. v. Greif Companies, 236 AD2d 237 (1st Dept 1997); Jandous Electric Const. Corp. v. The City of New York, 88 AD2d 821 (1st Dept 1982). Consequently the court finds that quantum meruit is not an available remedy to plaintiff.
In addition notwithstanding that Leica was successful in dismissing all claims asserted against it, the court in its discretion declines to award sanctions. Leica's motion for sanctions is therefore denied.
In accordance herewith:
DCC's motion for summary judgment is granted in all respects. All claims asserted against Daimler Chrysler Corporation are hereby severed and dismissed. DCC's motion for sanctions is denied.
Magnum's motion for summary judgment dismissing the 1st and 5th causes of action against it are denied.
Leica's motion for summary judgment dismissing all the claims against it is granted in its entirety. Leica's motion for sanctions is denied.
Gilden's motion for summary judgment dismissing all the claims against him is granted in its entirety.
Plaintiff's cross motion for summary judgment on his complaint is denied in all respects.
The 5th cause of action for a permanent injunction against all the defendants is hereby severed and dismissed as to all the defendants, except Magnum.
Plaintiff's time to file the note of issue is extended until September 14, 2007 and plaintiff shall [*8]simultaneously serve a copy of this Order on the Office of Trial Support so this case can be scheduled for trial.
It is hereby:
Ordered that the clerk shall enter judgment in favor of defendants Daimler Chrysler Corporation, Leica, Inc., and Bruce Gilden, against plaintiff Wolfgang Shatriya, dismissing the complaint; and it is further
Ordered that motions by defendants Daimler Chrysler Corporation and Leica, Inc. for sanctions pursuant to Part 130 are denied; and it is further
Ordered that plaintiff's time to file the note of issue is extended until September 14, 2007 and plaintiff shall simultaneously serve a copy of this Order on the Office of Trial Support so the remaining claims in this case can be scheduled for trial; and it is further
Ordered that any requested relief not otherwise expressly granted herein is denied and that this constitutes the decision and order of the court.
Dated:New York, New York
August 23, 2007So Ordered:
Hon. Judith J. Gische, J.S.C.
Footnote 1:Where used indicates omitted language for clarity sake and because not relevant to the issue being addressed.