PRIVACY II

The New York Civil Rights Act, §51

*defendant uses plaintiff's name, portrait, or picture (in NY)

*for advertising or trade purposes

*without plaintiff's written consent

 

Brinkley v. Casablancas

plaintiff--Christie Brinkley, p. 1006

defendants--Casablancas (president of Elite Modeling Agency); Galaxy (publisher/distributer); Spenser (retail store) and Omni Enterprises , p. 1006

Issue: Can behavior which implies consent be substituted for written consent? p. 1012

Stephano v. News Group Publications, Inc.

Issues:

1. Is "use of name, portrait, picture" in conjunction with news or newsworthy items an exception to sections 50-51?

2. Is there a right of publicity in New York independent of the right of privacy given by the NY Civil Rights Act?

Shields v. Gross

plaintiff--Brook Shields, p. 225

Issue: Can a minor ("infant model") disaffirm a consent signed by her mother? p. 258, thereby negating the written consent required by sections 50-51?

See the dissent pp. 258, 259, 260 and 261

Cher v. Forum

plaintiff--Cher

defendants--

Robbins (the interviewer) was paid a "kill fee" by Us; sold the interview to Star and Forum

News Group Publ. (publisher of Star) published her photo on the cover and parts of the interview as "Exclusive Series: Cher…My life, my husbands and my many, many men"

Forum published her photo on the cover along with "Exclusive: Cher talks straight"; inside the interview identified Robbins as the interviewer but made it appear that Forum was asking the questions.

Forum and Penthouse had "tear outs" for new subscriptions which included a photo and the statement, "There are certain things that Cher won't tell People and would ne er tell Us. She tells Forum. So join Cher and Forum's hundreds of thousands of other adventurous readers today."

See pp. 638-639

 

Allen v. National Video

plaintiff--Woody Allen

defendants--Boroff (a Woody look-alike), National Video which had countercards distributed nationwide without the disclaimer that appeared in the "Take One" issue

Issues:

1. Is a photo of a "look alike" a portrait or picture of the plaintiff? pp. 621-622

Onassis v. Dior: p. 623

2. Is the Lanham Act a better action?: likelihood of confusion

strength of mark

similarity of marks

proximity of plaintiff's and defendant's products

actual confusion

sophistication of audience

defendant's bad faith

3. Can look-alikes function within the framework of the law? p. 630

4. Can Boroff win a suit on breach of contract?

Arrington v. The New York Times

Plaintiff's photo was used on the cover of the New York Times Magazine to illustrate an article, "The Black Middle Class: Making It." Arrington is a financial analyst with GM, then Ford. The photo was taken without his knowledge as he walked down the street.

Issue: The "no real relationship" exception: "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"