Yasin v Q-Boro Holdings, LLC

[*1] Yasin v Q-Boro Holdings, LLC 2010 NY Slip Op 50742(U) [27 Misc 3d 1214(A)] Decided on April 23, 2010 Supreme Court, Kings County Rothenberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 23, 2010
Supreme Court, Kings County

Tasleema Yasin, Plaintiffs,

against

Q-Boro Holdings, LLC and URBAN BOOKS, LLC, Defendants.



13259/09



Counsel for plaintiff

Orrick, Herrington, Sutcliffe

666 Fifth Avenue

New York, New York 10103

Counsel for defendants

Chris Pappas & Associates

233 Broadway

New York, New York 10279

Karen B. Rothenberg, J.

The instant action by plaintiff, Tasleema Yasin (hereinafter Yasin), brought under Civil Rights Law §§ 50 and 51, concerns the use by defendants Q-Boro Holdings, LLC and Urban Books, LLC (hereinafter defendants) of a photograph of Yasin, without her consent, for the cover of its book entitled Baby Doll. Yasin moves for a permanent injunction prohibiting the further sale, display, and use of her image by defendants and for an award of partial summary judgment on the issue of liability. Defendants cross-move for summary judgment dismissing Yasmin's complaint in its entirety.

It is alleged that in 2005 Yasin hired photographer Frank Antonio Aleman to take her photos for the purpose of promoting her career as a singer and songwriter. Yasmin did not sign any release allowing Mr. Antonio or any other person to use her photograph. Sometime in June, 2008 Yasin learned that her image appeared on the front cover of the book. The book is a work of fiction, published by defendants, and it is commercially distributed by retailers such as Border Bookstores, Barnes & Noble, and Amazon.com. In May, 2009, Yasin's attorney sent cease and desist letters to defendants. Defendants' counsel responded that defendants, by written agreement with Mr. Antonio, in which Mr. Antonio certified that he had obtained the necessary release for the image, had acquired the right to use the photograph. Yasin instituted the instant action against defendants for commercial misappropriation of her picture in violation of the state's statutory right of privacy.

New York does not recognize a common-law right to privacy (see Messenger v. Gruner [*2]& Jahr Print & Publ., 94 NY2d 436, 441 [2000]. Instead, a limited statutory right to privacy is created by Civil Rights Law §§ 50 and 51. Under Civil Rights Law § 50, it is a misdemeanor to use a person's name, portrait or picture for advertising or trade purposes without having first obtained the written consent of such person. Civil Rights Law § 51 in turn, provides for civil and equitable redress. The elements of a cause of action under Civil Rights Law § 51 are (1) the use of a person's name, portrait, picture (2) for advertising purposes or for the purpose of trade, (3) without written consent (see Molina v. Phoenix Sound, 297 AD2d 595, 597 [2002].

In the instant matter it is undisputed that defendant's used Yasin's picture without her written consent. The only issue therefore, is whether the picture was used for advertising' or trade' purposes.Here, defendants contend that their use of Yasin's picture in a fictional work is constitutionally protected under the First Amendment and does not violate Civil Rights Law §51. The court disagrees and finds that the use herein was violative of the privacy statute.

It is well settled that New York's privacy statute is strictly limited to "noncensual commercial appropriations of the name, portrait or picture of a living person" (Finger v. Omni Publ'ns Int'l, 77 NY2d 138, 141 [1990]). These statutory provisions prohibit the use of pictures, names or portraits "for advertising purposes or for the purposes of trade" (Finger v. Omni Publ'ns Int's, supra ). The privacy statute is narrowly construed and does not apply to "newsworthy events or matters of public interest" as such material is not deemed produced for advertising or trade purposes (see Messenger v. Gruner & Jahr Printing & Publ'g, 94 NY2d 436, 441 [2000]). The exemption reflects both the legislative intent and a means of protecting "constitutional values in the area of free speech..." (Howell v. New York Post Co., 81 NY2d 115 [1993]).

When a person's image is used to illustrate an article on a matter of public interest it is not considered used for the purpose of trade or advertising in violation of the statute unless the image has no real relationship to the article (see Dallesandro v. Henry Holt and Co., 4 AD2d 470 [1957] [Display of plaintiff's image on book cover did not come within the prohibition of the privacy statute as plaintiff was the subject of the book and the image was illustrative of a matter of legitimate public interest.]); see also Murray v. New York Mag. Co., 27 NY2d 406 [1971] [Defendant's use of a picture of plaintiff attending a parade for the front cover of its magazine did not violate Civil Rights Law § 51 as the photograph was related to the subject matter of an article in the magazine]). If there exists a reasonable relationship between the image and the subject matter contained in an article, the use of the image is not actionable (see Murray v. New York Mag. Co., supra ).

This exception also applies to fictionalized accounts of events in a person's life depicted in a film or novel (see Rogers v. Grimaldi, 695 F. Supp. 112 [1988] [use of Ginger Roger's name in title of movie not actionable as the title was related to the content of the movie]; Hicks v. Casablanca Records, 464 F. Supp. 426 [1978][right of publicity did not attach to fictionalized account of true incident that occurred in the life of Agatha Christie]; Frosch v. Grosset & Dunlap, Inc., 75 AD2d 452 [1965][use of Marilyn Monroe's name and images in biography' was [*3]not violative of the statute], as well as to work's of satire or parody (see Hampton v. Guare, 195 AD2d 366 [1993][a play inspired by the true life events of plaintiff was not actionable]; University of Notre Dame Du Lac v. 20th Century-Fox Film Corp., 22 AD2d 452 [1965][film and novel parodying the University not actionable] ; Altbach v. Julon, 302 AD2d 655 [2003][oil painting caricature of town justice not actionable]. When the primary purpose of the use is newsworthy' or of a public interest', incidental or ancillary commercial use of a person's image is not actionable (see Nussenzweig v. DiCorcia, 11 Misc 3d 1051(A) [2006]).

In the instant matter, the use of Yasin's picture on the front cover of the book Baby Doll does not fall within the newsworthy' or public interest' exception. It is undisputed that there is no relationship between Yasin's picture and the subject matter contained in the book; which is admittedly a pure work of fiction that neither references Yasin by name or otherwise identifies her as a character in the book.

Furthermore, although the use of a person's image in a work of art has also been held to be a constitutionally protected form of free speech exempt from the proscription of Civil Rights Law §51 (see Hoepker v. Kruger, 200 F. Supp. 2d 340 [2002] [collage of plaintiff's image shown in museum and contained on various items sold in gift shop]; Simeonov v. Tiegs, 159 Misc 2d 54 [1993] [bronze bust of plaintiff's likeness]; Nussenzweig v. DiCorcia, supra [10 photographic prints of plaintiff's portrait]), this court does not consider the instant photograph artwork'. Rather, the court finds that the use of Yasin's image on the front cover of defendants' book is purely for marketing and trade purposes; solely as a means to attract customers and generate sales.

In view of the foregoing, the defendants unauthorized use of Yasin's image on the front cover of the Baby Doll book violates her statutory right to privacy pursuant to Civil Right's Law § 51. Accordingly, plaintiff Yasin's motion for a permanent injunction is granted and the defendants' are prohibited from further selling, displaying, or using her image. Yasin's motion for summary judgment on the issue of liability for commercial misappropriation is granted and defendants' cross-motion for summary judgment dismissing Yasin's complaint is denied.

This constitutes the decision/order of the Court.

Dated: April 23, 2010

Enter,

______________________

Karen B. Rothenberg

J.S.C.