Right of Privacy

New York Right Of Privacy Has Its Limits

In the most basic sense of the word, privacy evokes a sense of security in an individual’s own person and property, as well as the ability to control how they are perceived by the world. New York Civil Rights Law §§ 50 and 51 are designed to give persons the right to protect their own identity from unauthorized commercial use. It protects a person’s right to be let alone. However, while the right of privacy may create a safeguard to protect against the use of an individual’s name or likeness, it does not always protect the person seeking privacy.

Scope of the Right of Privacy

There is no common law right of privacy in New York. Any relief for violations of privacy rights must be sought under §§ 50 and 51 of New York’s Civil Rights Law.

NY Civil Rights Law §§ 50 & 51 apply​ when any person, firm or corporation uses any living person’s name, portrait, picture or voice, for advertising or trade, without written consent, or if a minor of his or her parent or guardian, within the state of New York. Section 51 creates a private right to sue for an injunction and damages, including exemplary damages if a defendant acts knowingly in violation of the statute.

Thus, it may be a violation of a person’s right of privacy to give that person credit on a motion picture without her written consent. Such a person may seek damages, or injunctive relief, barring further distribution and exploitation of the picture. Once the violation is established, the plaintiff has an absolute right to an injunction, regardless of the relative damage to the parties (See for example, Fleischer v. WPIX, 30 Misc. 2d 17 at 33 – NY: Supreme Court, New York 1961).

Since there is no right of privacy at common law – those rights relating to privacy are subsumed within NY Civil Rights Law right of privacy – there can be no independent, common law claim for misappropriation, false light invasion of privacy, intrusion upon seclusion, conversion, negligence, unjust enrichment, breach of fiduciary duty of confidentiality and public disclosure of facts about the plaintiff based upon the alleged unauthorized use of his image, portrait or voice, outside the protections granted by the Civil Rights Law.

Limitations on the Right of Privacy

The right of privacy is not without limits. Mindful of its potential conflict with the First Amendment right of freedom of speech and free press, the statute does not generally apply to reports of newsworthy events or matters of public interest, or to works of artistic expression, such as art, books, music, plays and movies. In addition, there is no right of privacy of deceased persons.

However, the First Amendment exception is not itself without limits.

Who Can Sue?

New York Civil Rights Law right of privacy protection is designed to prevent injury to feelings. The right of privacy is personal to the individual. Since a dead person or a corporation cannot have feelings, only natural, living persons can claim a right of privacy.

Thus, a person’s right of privacy is non-transferrable, non-assignable and is extinguished upon the person’s death. Thus, a deceased person’s estate cannot sue for misappropriation of his name, likeness or voice, nor can a corporation, loan out company or licensing company sue for violation of right of privacy.

The infringing activity must occur within the state of New York

The act constituting a violation of right of privacy must occur within the state of New York, regardless of where the plaintiff or defendant resides.

A person domiciled outside of New York may assert or defend a Civil Rights Law §§ 50 and 51 claim, based on an infringing activity within New York. For example, a defendant in California who posts unauthorized images of plaintiff on the Internet and over social media may be sued in New York courts for violation of plaintiff’s right of privacy. Thus, depending on where the nonconsensual act occurs, a plaintiff may have to bring actions in several states to get full relief (Shamsky v. Garan, Inc., 167 Misc. 2d 149 – NY: Supreme Court 1995).

Right of Publicity

There is no independent common-law right of publicity, in New York. The NY Civil Rights Law right of privacy extends to right of publicity (Stephano v. News Group Pub., 64 NY 2d 174 at 183 – NY: Court of Appeals 1984).

Since NY Civil Rights Law §§ 50 and 51 applies to a living person, NY does not recognize a descendible right of publicity.

NY applies the law of decedent’s domicile, or domicile of the decedent’s exclusive licensee, to determine the existence of any right of publicity (Bi-Rite Enters., Inc. v. Button Master, 555 F. Supp. 1188 (S.D.N.Y. 1983)). For example, the courts have held Marilyn Monroe has no post-death right of publicity, in that she died domiciled in the state of New York, and her name or likeness may be freely used by others (See Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 – Dist. Court, SD New York 2007).

Therefore, under NY Civil Rights Law, it would be legal to make digital clones of deceased actors, who were domiciled in New York at the time of death.

Name, Portrait, Picture or Voice

NY Civil Rights Law §§ 50 and 51 protects the non-consensual use of a living person’s name, portrait, picture or voice for purely commercial gain. However, the law does not prohibit every use of the name, portrait, picture or voice of every living person.

  • Name

While sections 50 and 51 prohibit the use of any living person’s name for purposes of advertising or trade, the mere use of a person’s name is insufficient to constitute a violation of the New York right of privacy law. For example, in a work of fiction, it is obvious that there is always the probability that, no matter what name is used, there is always some living person with that name. Since there always will be persons with similar names, writers of fiction could not give names to their fictional characters without violating the statute.

The word “name” means a person’s full name. The statute does not protect a person’s first name, last name, alias or nickname, stage name or assumed name, unless such a name as used is associated with, or unmistakably identifies the person (Gardella v. Log Cabin Products Co., 89 F. 2d 891 – Circuit Court of Appeals, 2nd Circuit 1937).

Where a person’s last name is used in conjunction with something else which makes the identification possible, such as where the complainant’s last name and family crest were affixed to the labels of certain wine bottles, the combination of the surname and the coat of arms may present enough identification, which might be as effective as a person’s full name (Orsini v Eastern Wine Corp., 190 Misc 235 (1947)).

Thus, the unauthorized use of a person’s name – whether it be their first name, surname or nickname, coupled with something more unique – or a distinguishable stage name (such as Prince or Cher) – were used in a way that made the individual identifiable, there could be a violation of the identified person’s right of privacy.

Nevertheless, the incidental, momentary or isolated use of a person’s name is generally not actionable. See for example, University of Notre Dame Du Lac, 256 N.Y.S.2d at 303-04 (plaintiff mentioned three times in 143 page book); Ladany, 465 F.Supp. at 881 (references to plaintiff on 13 of 458 pages); Meeropol v. Nizer, 381 F.Supp. 29, 37-38 (S.D.N.Y.1974) (plaintiffs mentioned 29 times in book); Damron, 231 N.Y.S. at 446 (single use of name in book); Stillman v. Paramount Pictures Corp., 2 AD 2d 18 – NY: Appellate Div., 1st Dept. 1956 (isolated reference to the name “Stillman’s Gym” in a fictional movie, even if such place is operated by a living person of the name “Stillman”).

Fictitious Names

New York courts have consistently dismissed right of privacy claims based on the use of a fictitious name, even if the depiction evokes some characteristics of the person or the person is identifiable by reference to external sources. For example, in Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 860, 374 N.E.2d 129, 130, 403 N.Y.S.2d 218, 219 (1978), the court held that the depiction of the plaintiffs under fictitious names in the movie, Dog Day Afternoon, failed to state a Section 51 claim, despite that the plaintiffs were “portrayed… in sufficiently detailed accuracy of physical characteristics and activities as to result in their effective identification.” (see also Greene v. Paramount Pictures Corp., 138 F. Supp. 3d 226 – Dist. Court, ED New York 2015, a case regarding the motion picture The Wolf of Wall Street).

  • Portrait, Picture or Voice

The NY Civil Rights Law right of privacy is designed to protect a person’s identity, not merely a property interest in his or her name, portrait, picture or voice. Thus, portrait, picture or voice must leave no doubt as to the identity of the person (Lohan v. Take-Two Interactive Software, Inc., 2018 NY Slip Op 2208 – NY: Court of Appeals 2018).

This does not mean that an action can only be maintained when the individual’s face is visible. The primary question is whether someone (such as someone familiar with the person) looking at the image (or listening to the voice) in question can identify it as that of the person.

Thus, any recognizable likeness – not just an actual photograph – may qualify as a person’s portrait or picture, for purposes of sections 50 and 51. These include a painting or sculpture; a composite photograph and drawing (e.g., a naked African-American man in a boxing ring, with facial features recognizable as those of Muhammad Ali); a manikin; a computer-generated image in a motion picture or video game (such as, an avatar, digital replica or images created using motion capture technology); a model or actor look-alike;  a red costume; and even a tattoo.

Whether the portrait, picture or voice is recognizable as that of a particular individual is generally a question of fact.

Therefore, whether the plaintiff cannot be identified because of the limited subject matter revealed in the photograph, the quality of the image or recording or the paucity of details in the events of a story, is a question of fact. Thus, based on the particular facts, the unauthorized use of an impression of George Clooney to voice over an indie game trailer may be actionable.

Context and Intent

Although a representation of any recognizable likeness may qualify as a portrait or picture, it must be more than a mere look-alike. There must be a purposeful intent to create the appearance of the plaintiff. Thus, an individual’s identity may be implied from the context, even when his/her name, portrait, picture or voice is not used.

For example, In Loftus v. Greenwich Lithographing Co., 192 A.D. 251, 182 N.Y.S. 428 (1st Dep’t 1920), the plaintiff was an actress who was photographed in a red costume representing a rose. This costume was never worn by any person other than the plaintiff, and she was readily recognized from her costume. To promote a film, the defendant produced a poster that featured a female figure with an identical costume. Although the main identifying feature in the infringing poster was the costume, the basis of the court’s decision was that the female figure in the poster was such “an accurate likeness of the plaintiff” that it was “perfectly evident” that the defendant had copied the features of the plaintiff.  In other words, the poster in Loftus violated section 51 not because it depicted a unique costume, but because it attempted to create a “portrait or picture” of the plaintiff actress herself.

Similarly, in Onassis v. Christian Dior, 122 Misc. 2d 603 – NY: Supreme Court 1984, the court held that the use in an advertisement of a model who looked like Jacqueline Kennedy Onassis violated Sections 50 and 51. Although a model was used, the advertisement created the overall impression that Jacqueline Kennedy Onassis herself was in the advertisement. The court held that “a representation which conveys the essence and likeness of an individual, … which was intended to be, and did, in fact, convey the idea that it was the plaintiff” was a picture or portrait for purposes of the Civil Rights Law.

Character vs characterization

The difference between character and characterization is that character is the person’s identity, whereas characterization are traits the writer uses to create the character. Thus, characterization is not character. You strip away the masks of characterization to reveal character.

There’s no violation of a person’s right of privacy, where defendant’s use is merely portraying another’s character or role or suggesting certain characteristics, personality or traits of the person, without actually using his or her name, portrait, picture or voice (Gravano v. Take-Two Interactive Software, Inc., 142 AD 3d 776 – NY: Appellate Div., 1st Dept. 2016; See also Levey v. Warner Bros. Pictures, 57 F. Supp. 40 – Dist. Court, SD New York 1944).

For example, In Lombardo v. Doyle, Dane & Bernbach, Inc., 58 AD 2d 620 – NY: Appellate Div., 2nd Dept. 1977, the court rejected a claim under section 51 by the conductor Guy Lombardo based on a commercial showing an actor conducting a band playing “Auld Lang Syne” at a New Year’s Eve party much as Lombardo had done for decades. The court held that “it is clear that the Civil Rights Law is to be strictly construed and is not to be applied so as to prohibit the portrayal of an individual’s personality or style of performance.”

Similarly, although the court condemns the reproduction of someone’s likeness in any form without consent, the Court in Onassis did not find issue with the use of only someone’s personal style or characteristics separate from actual physical resemblance.

Fictitious characters

NY Civil Rights Law right of privacy does not protect fictitious characters (although it may give rise to a trademark infringement or Lanham Act claim). A fictitious character is neither living nor a person (Burck v. Mars, Inc., 571 F. Supp. 2d 446 – Dist. Court, SD New York 2008 (the privacy statutes were not intended to protect a trademarked, costumed character publicly performed by a person)).

Advertising or trade

Mindful of its potential conflict with the First Amendment right of free speech and free press, Sections 50 and 51 were drafted narrowly to encompass only the commercial use of an individual’s name or likeness and no more. This is because “freedom of speech and the press . . . transcends the right to privacy” (Arrington v. NY Times Co., 55 NY 2d 433 – NY: Court of Appeals 1982). Use for “advertising purposes” is defined as solicitation for patronage, intended to promote the sale of some collateral commodity or service (Davis v. High Soc. Mag., 90 AD 2d 374 – NY: Appellate Div., 2nd Dept. 1982).

Thus, NY Civil Rights law right of privacy does not apply to reports of newsworthy events or matters of public interest.

NY Courts have deemed it non-commercial, and not “for the purposes of trade”, the publication of a newspaper, magazine, book or motion picture which imparts truthful news or other factual information to the public, subject to the common-law right of redress for libel.

In addition, on First Amendment and other grounds, courts have explicitly concluded that works of humor, comedy, music, art, fiction and satire do not come within the ambit of sections 50 and 51.

Newsworthiness or Matters of Public Interest

The newsworthiness exception to NY Civil Rights Law right of privacy has been broadly construed to include actual events, articles concerning educational, scientific and historical data, political happenings, social trends, interesting phases of human activity, documentaries, news stories and articles of consumer interest, developments in the fashion world, any subject of public interest, or even entertainment and amusement. This is because there is a strong societal interest in facilitating access to information that enables people to discuss and understand contemporary issues (Time, Inc. v. Hill, 385 US 374 – Supreme Court 1967).

An event does not lose its status as newsworthy merely because it occurred a long time ago, and a matter may be of legitimate public or general interest although it is no longer current (Man v. Warner Bros. Inc., 317 F. Supp. 50 – Dist. Court, SD New York 1970).

Motive

Whether an article is newsworthy is a question of law to be determined by the judge. Under such analysis, a person’s motive for the publication is irrelevant. Newsworthiness depends solely on “the content of the article,” not the publisher’s motive to increase circulation or to make money, or whether the publication is for information or for entertainment purpose.

Personal ill-will is not an element of the offence, any more than in an ordinary case of trespass to person or to property (Sidis v. FR Pub. Corporation, 113 F. 2d 806 – Circuit Court of Appeals, 2nd Circuit 19).

There is no violation of the statute, even if the use of a person’s photograph creates a false impression about the person in the minds of the public, as long as the publication is (1) not an advertisement in disguise and(2) there is a real relationship between the photograph and the publication (Messenger v. Gruner+ Jahr, 727 NE 2d 549 – NY: Court of Appeals 2000, applying the FingerArrington and Murray line of cases).

Real Relationship

In order to be able to claim a newsworthiness or public interest exception, the person’s name, picture, portrait or voice must bear a real relationship to the subject matter of the article, book, television segment, movie or scene. This is because, by definition, if a person’s image has no real relationship to the work then its only purpose must be for the sale of the work.

For example, in Thompson v. Close-Up, Inc., 277 AD 848 – NY: Appellate Div., 1st Dept. 1950, a publication of a photograph did not fall within exceptions to Civil Rights Law §§ 50 or 51 where plaintiffs had no connection to dope peddling, which was the subject of defendant’s article. Compare Murray v. New York Mag. Co., 27 NY 2d 406 – NY: Court of Appeals 1971, where a photograph of plaintiff dressed in Irish garb while watching St. Patrick’s Day parade spotlighted a newsworthy event and bore a real relationship to the article about contemporary attitudes of Irish-Americans in New York City; and Finger v. Omni Publs. Intl., 77 NY 2d 138 – NY: Court of Appeals 1990, the photograph of plaintiffs and their six children bore real relationship to article entitled, “Want a big family?” and fell within the newsworthy exception despite fact that family had no involvement with subject matter of article, or caffeine-enhanced in vitro fertilization, where both title and photo involved theme of fertility.

There must be a legitimate connection between the name, portrait, picture or voice and the publication.

For example, a person may not be singled out and unduly featured in a movie merely because she happens to be on the scene when there’s filming going on. Thus, in Blumenthal v. Picture Classics, Inc., 235 App. Div. 570 – 1932, court granted an injunction where defendant produced and distributed a short film about historical points, views and life in various parts of New York City, showing a six second shot of a close-up full-sized picture of the plaintiff selling bread and rolls to passersby on a street corner, without plaintiff’s consent. Although the film itself was not inherently a work of fiction, it was a violation to use plaintiff’s picture in the movie without consent, even though her trade brings her into public view.

Similarly, in Metzger v. Dell Pub. Co., 207 Misc. 182 – NY: Supreme Court, New York 1955, plaintiffs succeeded on an allegation of unauthorized use of their portrait for the purposes of trade, where they were photographed by defendant’s while standing on the street in Brooklyn. The picture was one of several taken and which were used as “local color” in connection with a story, entitled “Gang-Boy,” published in defendant’s magazine. The photograph did not identify plaintiffs by name. However, The court ruled it an invasion of privacy, saying: “the fact that it is legitimate to discuss the existence of gangs and gangsters does not make it legitimate to drag these plaintiffs into the discussion.”

In contrast, in Gaeta v. Home Box Office, 169 Misc. 2d 500 – NY: City Court, Civil Court 1996, where the plaintiff voluntarily joined a crowd scene where HBO was filming nude models and getting footage of the public’s response to public nudity, the court held there was no violation of the statute, in that (1) the television program concerned a matter of public interest, (2) the spectator’s picture was not used for purposes of trade; (3) the plaintiff’s picture bore a real relationship to the subject matter of the segment, and (4) as a newsworthy incident affecting the crowd was taking place, her expectation of privacy was or should have been limited.

Advertisement in Disguise

An advertisement in disguise constitutes commercial use. The newsworthy and public concern exemption does not apply where the unauthorized images appear in the media under the guise of news items, when its sole purpose is to promote sales.

See for example,  Beverley v. WOMEN’S MED CTR., 78 NY 2d 745 – NY: Court of Appeals 1991 (the producer and distributor of a calendar with a picture of the plaintiff used to promote defendant’s medical center were not entitled to First Amendment protection on the basis of newsworthiness or public concern around theme of women’s progress, where the calendar was clearly designed to advertise the medical center);  Stephano v. News Group Pub., 64 NY 2d 174 – NY: Court of Appeals 1984 (use of a model in article on men’s fashion not entitled to protection of Civil Rights Law § 51 where photo was also used in column containing information on where to buy new and unusual products); and PASSELAIGUE v. GETTY IMAGES (US), INC., Dist. Court, SD New York 2018 (where the photographs were commissioned by companies seeking to use them in advertising campaigns, and any artistic expression added by the photographer was incidental).

Fact or Pure Fiction

While truth may be a complete defense in an action claiming violation of the right of privacy, which is based upon reports of newsworthiness or matters of public interest, proof of knowledge of falsity or reckless disregard of the truth is not an element of the cause of action under the NY Civil Law §§ 50 and 51 (Welch v. Mr. Christmas, 57 NY 2d 143 – NY: Court of Appeals 1982). Courts of equity will not restrain the publication of an unjust and malicious matter simply on a showing of its falsity (although such evidence is permissible in an action for libel) (Wolf v. Gold, 9 AD 2d 257 – NY: Appellate Div., 1st Dept. 1959).

Similarly, a newsworthy publication which, although it is partly fictional, does not violate the statute (Koussevitzky v. Allen, Towne & Heath, Inc., 68 NYS 2d 779 – 1947). In Koussevitzky, the court held that the portrayal of the character of Dr. Koussevitzky, a noted symphony conductor, in a purported biography, containing some untrue or fictional material, was not within §§ 50 and 51.

On the other hand, a publication will be considered for advertising or trade purpose, and therefore a violation of a person’s right of privacy, where it contains substantial fictionalization (Spahn v. Julian Messner, Inc., 21 NY 2d 124 – NY: Court of Appeals 1967).

For example, a rescue of passengers from a shipwreck, does not invoke the newsworthiness exception in the event that the entire account remains “mainly a product of the imagination” (Binns v Vitagraph Co., 210 NY 51, 56 [1913]). Likewise, where defendant knowingly produced a materially and substantially fictitious biography about plaintiff “and the events that led to his incarceration,” the movie violates the person’s right of privacy, and it appropriates his name without his consent “for purposes of profit” (Porco v. Lifetime Entertainment Servs., LLC, 147 AD 3d 1253 – NY: Appellate Div., 3rd Dept. 2017). In Porco, defendant’s motion picture was held to be “pure fiction” and not fact, and as such, the movie violated plaintiff’s right of privacy.

Incidental use

An unauthorized use, or use in advertising or trade, or even a purely fictionalized publication, that is incidental to an otherwise privileged use of a person’s identity, such that, it is undertaken in connection with a use protected by the First Amendment, is not a violation of that person’s right of privacy.

So, for example, if you make a movie about a person, you should be able to use that person’s name, picture or voice in a trailer or truthful advertising for purposes of promoting the movie, as long as the person’s right of privacy is not invaded by the underlying movie. Thus, the trailer for a biopic would, in general, be a protected use. The result would be the same even if the making of the movie was triggered by personal ill-will or malice.

The incidental use doctrine also exempts screenwriters and distributors of film and TV programs and other entertainment projects from liability for “isolated,” “fleeting,” or “de minimis” uses of a person’s name or likeness. See for example, Man v. Warner Bros. Inc., 317 F. Supp. 50 – Dist. Court, SD New York 1970 (incidental use of forty-five seconds of plaintiff’s performance in film is “de minimis,” and not actionable).

The mere fact that defendants are spurred by the profit motive and engaged in the commercial exploitation of a motion picture does not negate their right to depict a matter of public interest or to advertise the picture by the showing of a trailer. See for example, Alfano v. NGHT, INC., 623 F. Supp. 2d 355 – Dist. Court, ED New York 2009 (a media publication with newsworthy content may use an individual’s image in an advertisement that reproduces that content, such as,  the reproduction of a magazine cover depicting a famous actress in an advertisement for subscriptions to the magazine. Such incidental use is protected even if the particular image used does not appear in the media in question, as long as the use otherwise qualifies as an incidental use by illustrating the content of newsworthy media); Groden v. Random House, Inc., 61 F. 3d 1045 – Court of Appeals, 2nd Circuit 1995 (defendant did not violate plaintiff’s right of privacy by using plaintiff’s name and picture in advertisements for book in which plaintiff’s work is discussed); Namath v. Sports Illus., 48 AD 2d 487 – NY: Appellate Div., 1st Dept. 1975 (publisher could use plaintiff’s picture to solicit subscriptions where photograph indicated content of defendant’s magazine); Friedan v. Friedan, 414 F. Supp. 77 – Dist. Court, SD New York 1976 (use of plaintiff’s photograph on television commercials advertising magazine issue featuring article on plaintiff).

Consent

A written (not oral) consent is necessary for the use of a person’s name, voice or likeness. Appearing on the show is not enough to waive that right.

Generally, a valid appearance release is a complete defense to an action for violation of a person’s right of privacy. If the language of a release is clear and unambiguous, the signing of the release is binding on the party who signed it. A signed release shifts the burden of going forward to the party who signed to show that there was fraud, duress or some other fact which will be sufficient to void the release.

In Hill v. Steinbrech, 2015 NY Slip Op 31827 – NY: Supreme Court 2015, although release and consent were allegedly given to take videos of Hill, defendant did not establish that Hill provided written consent for the use of the video depicting him and his tattoos for advertising purposes. Even assuming the alleged release and consent was signed by Hill, which he disputed, it did not provide consent for the use of YouTube videos depicting Hill’s tattoo. In addition, the video recording purportedly showing Hill giving oral consent to the use of his tattoo in the video was insufficient, as a matter of law, as the statute requires written consent.

Statute of Limitation

Under N.Y. C.P.L.R. § 215(3), the statute of limitations bars claims that are not brought within one year from the date of the first unauthorized use of a person’s name, voice or likeness (generally interpreted as when the publication first goes on sale to the public).

NY courts apply the single publication rule to claims brought pursuant to Civil Rights Law §§ 50 and 51. The statute of limitation does not run anew with any subsequent rebroadcasting or with each new publication, airing or episode of the movie or TV program (Costanza v. Seinfeld, 279 AD 2d 255 – NY: Appellate Div., 1st Dept. 2001).

However, a republication exception may apply, and the statute of limitations would start afresh, where a subsequent publication (1) is intended for and reaches a new audience, or (2) materially changes or modifies the original, such as where plaintiff’s face had been used in connection with a new product (BONDAR v. LASPLASH COSMETICS, Dist. Court, SD New York 2013). This would toll or reset the statute of limitations.