Former Professional Wrestler Sues Van Morrison for Using his Likeness without Authorization

November 6, 2017 · by ·

Billy Two Rivers, a former professional wrestler, is suing musician Van Morrison and his record label company, claiming that, by using his likeness on the cover of the upcoming Roll With the Punches album, they infringed his right of publicity, as protected by New York State’s statutory right to publicity, New York Civil Rights Law §§ 50 and 51, and false endorsement under the Trademark act. The case is Two Rivers v. Morrison, 1-17-cv-05720 (Southern District of New York).

To say that Plaintiff has had an interesting life is an understatement, as he was a professional wrestler from 1953 to 1977, competing in Canada, the U.S. and abroad. He appeared in ten films and television programs. After retiring, he was for 20 years a leader of the Mohawk nation on the Kahnawake reservation, as an elder and a counselor. He is still recognized as an elder and advisor to the First Nations people. The British band The Dogs D’Amour named a song after him in 1988, and Pulitzer Prize-winner Paul Muldoon wrote a poem, “My Father and I and Billy Two Rivers”, about watching Plaintiff competing in a wrestling match. A British racing horse was named after him, with Plaintiff’s consent.

Roll With the Punches will be Van Morrison’s 37th studio album and is set for release on September 22, 2017. Its cover features a black and white photo of Plaintiff engaged in a wrestling match. The cover of the album was used to promote Van Morrison’s tour, and generally to promote the sale of the album, both online and off-line. Plaintiff claims he did not authorize the use of this photo for the album cover. The complaint alleges that he was not even contacted by Defendants.

New York Civil Rights Law § 50, enacted in 1903, makes it a misdemeanor for “[a] person, firm or corporation [to use] for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian...” We saw in a former post that the New York Legislature is actively trying to expand the scope of the law. However, Plaintiff does not need such expansion to file his suit. If the fact alleged in the complaint can be proven, it is a clear case of unauthorized use of likeness for commercial purposes.

Plaintiff is asking the court to enjoin any further use or dissemination of the cover, and to permanently dispose of the albums already produced. He is also asking the court to award him punitive damages.  The case settled out of court.

This post first appeared on The 1709 Blog.

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Filed Under: Right of Publicity, Southern District of New York · Tagged: ,

Post on The IPKat Blog About Lindsay Lohan Right of Publicity Suit

July 7, 2014 · by ·

132962857_587141e3cfI wrote a post for The IPKat blog last week about a right of publicity suit filed in New York by Lindsay Lohan against the makers of the Grand Theft Auto V video games. The law is N.Y. Civil Rights Law Section 50 and 51. I wrote two other posts on my own blog, here and here, about New York right of publicity cases.

I find right of publicity a particularly interesting law, as it is a privacy right and also an intellectual property right. The law protects the commercial value of one’s identity, even if one is not famous. Indeed, our image may be used to promote a product, even if we are not famous. Think of the smiling faces looking back at you while you shop for cereals or cookies.

Image is flikr1262, courtesy of Flickr user flikr pursuant to a CC BY 2.0 license

 

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Fashion Model Agreement Broad in Scope Deemed Enforceable by New York Court

June 9, 2014 · by ·

5480863464_5dd73d1199_zAn ongoing case in the New York Supreme Court, a court of first instance, shows the danger of signing a fashion model release agreement which is both vague and wide in scope. The case is Velon v. Di Modolo International LLC.

Plaintiff Stella Velon is a model and an actress. She alleged in her complaint that she attended a casting call in the office of AM Public Relations in New York City in the summer of 2011. Her pictures was taken a few weeks later for what she thought at the time to be a test shoot to be used to pitch marketing ideas for upcoming advertising campaigns. She was paid 400 dollars in cash for her work directly by the photographer. Ms. Velon further alleged in her complaint that she received an email from the AM Public Relations company a few days after the shoot, asking her to execute a release. The email read:

In exchange for consideration received, I hereby give permission to DiModolo (sic) to use my photographic likeness in visual forms and media for advertising campaigns, magazine or billboard, magazine editorial, lookbook, print, and any other lawful purposes ONLY for Dimodolo (sic).

Plaintiff stated in her complaint that she thought this was just “an afterthought in conjunction with the test shoot, a ministerial piece of paperwork that someone had forgotten to secure at the lime of the test shoot and to be used in conjunction with the test shoot.”

But she discovered later that her photograph, showing her wearing Di Modolo jewels, had been used in a Di Modolo advertising campaign. It had also been also featured on billboards in Miami and New Jersey, in print ads, on phone booths and kiosks in New York City, and on postcards given to customers at Di Modolo kiosks in major department stores, including Bloomingdale’s. The ad was also used on social media. A slightly different version of the ad was used by Bloomingdale’s, with the name of the retailer displayed along with Di Modolo’s.

Plaintiff then sued Di Modolo for violation of her right of privacy and publicity, fraudulent inducement, negligent misrepresentation, unjust enrichment and conversion and also sued Bloomingdale’s for violation of her right of privacy and publicity, unjust enrichment and conversion. All of Plaintiff’s claims were dismissed by the New York Supreme Court on May 16, except for right of privacy and publicity claim against both Di Modolo and Bloomingdale’s regarding the Bloomingdale’s ad.

Right of Publicity in New York State

The unauthorized commercial use of an individual’s likeness is protected by the “right to publicity.” Indeed, a person’s likeness can have great commercial value, if this person is an actor, a public figure, or, as in this case, a model.

New York State does not recognize a right of privacy at common law, but one of its statutes, Civil Rights Law §§ 50 and 51, recognizes a right to publicity. It provides a cause of action for injunctive relief and damages.  if “[a] person, firm or corporation…uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian.”

Scope of the Release

Plaintiff noted in her complaint that the release did not refer “to any particular photograph or photographs that were taken on any particular occasion.” It did not contain any territorial or temporal limitations either. Plaintiff pointed out that, if one reads literally the release she executed, Di Modolo has the right to use any of her images for any purposes. Indeed, as written, the photographs could be used everywhere and forever and ever.

Plaintiff argued that her case was similar to the Harlock v. Scott Kay Inc. case, (N.Y.App.Div.2005), where the court had found that a “Model Release” which had been signed by a model in connection with two modeling sessions was not an enforceable contract because the spaces for the insertion of essential terms had not been filled. But the New York Supreme Court did not find the Harlock case persuasive as the release Plaintiff had signed was unlimited, whereas essential terms were not stated at all in Harlock.

Di Modolo moved to dismiss the right of publicity cause of action, arguing that New York Civil Rights Law §§ 50 and 51 creates a right of action only if a person’s likeness was made without that person’s written consent, and that, in this case, Plaintiff had signed the release. That argument convinced the court which dismissed Plaintiff’s Civil Right Law claim.

However, the court did not dismiss Plaintiff’s claim for unauthorized use of her likeness against both Di Modolo and Bloomingdale’s to create the Bloomingdale’s advertising, because the release that Plaintiff had executed was only in favor of Di Modolo.

How To Read a Fashion Model’s Release Agreement 101

A model release is a contract which states who has the right to use the images taken of the model, how, and for how long.

A fashion modeling agreement should indicate the timing (how long?), the territory (where?) and the scope of the modeling services (the model is paid to do what, exactly?). If the modeling agreement you are asked to sign does not clearly state how long your image can be used, where it can be used, and what you are paid to do, well, do not sign it before having it reviewed  by an attorney.

  • Nature of the Use

A modeling agreement should clearly state which services the model is asked to perform and for what purpose. Is the model hired to shoot a video, or to be part of a fashion show, or, as in the case discussed above, to be photographed for a test? Will the photography be only used in print, or will it shown also on television?

It is important to know exactly why you have been asked to work. Getting work is always great news but rushing into signing just any contract is not a good idea at all.

  • Timing

You also need to know how long the other party to the contract will have the right to use your image. It may be only for one time, say, the day of the fashion show. In any case, the contract must indicate clearly the date of the termination of the contract.

Be careful when the contract contains language such as “present or future” and/or does not indicate any dates. You do not want to give up the right to use your likeness in perpetuity, especially as  the value of your image may increase in the future. The release should state a clear and fixed amount of time during which the contracting parties will have the right to use the image.

  • Territory

Where will the other party to the contract have the right to use your likeness? Will it be in the U.S. only, or will the other party have the right to use your image in a foreign country?

  • Consideration

How will you be compensated for the use of your image? How will you be paid and when?

Needless to say, this little 101 paragraph is not legal advice. It is best to consult an attorney before signing a fashion model agreement.

Image is Contract courtesy of Flickr user Steve Snodgrass under a CC BY 2.0 license

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Plaintiffs Appeal in Manhattan Privacy Case

September 16, 2013 · by ·

2890653367_3beb209a81Plaintiffs who lost last month their privacy case against a photographer who had taken pictures of them and their children without permission filed a notice of appeal to the Appellate Division of the New York Supreme Court on September 5.

This is an interesting case about balancing two competing interests, the right to privacy and the right to freedom of expression.

Using a telephoto lens, defendant Arne Svenson took several photographs of people living in the building across from his own apartment in Manhattan, taking advantage of the fact that the building is a glass tower with floor-to-ceiling windows for each apartment. People are shown going on with their daily activities, having their breakfast, cleaning or sleeping.

Svenson did not ask for permission to take these pictures and later used these images for an exhibition, “The Neighbors” presented this year at a Chelsea art gallery.

Some of the people photographed were minors, and their parents, Martha and Matthew Foster, filed suit individually and on behalf of their children against Svenson. Judge Eileen Rakower from the Supreme Court of New York granted on August 1 defendant’s motion to dismiss.

New York Privacy Law

The state of New York does not recognize a common law right of privacy. It only recognizes a right not to have one’s likeness used for commercial purposes, New York Civil Rights Law §§ 50 and 51. Under § 50,“[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” § 51 provides plaintiff for injunctive relief and damages.

Therefore, it is not illegal under New York law to use someone’s likeness without permission for a purpose which is not commercial. Plaintiff must prove to succeed in his claim the (1) use of his name, portrait, picture or voice (2) “for advertising purposes or for the purposes of trade” (3) without consent and (4) within the state of New York.

Svenson certainly used the likeness of plaintiffs. The faces of his subjects are not seen, but some of them are shown in “lost profile” which certainly would allow people knowing them to recognize them. The preliminary injunction sought to immediately end “the dissemination of two photographs showing the ‘[plaintiffs’] children faces and partially-clad bodies. “

So Svenson used the likeness of the plaintiffs, without their consent, within the state of New York. Was this use “for advertising purposes or for the purposes of trade”?

Trade/Advertising Purposes or Free Speech?

Plaintiffs alleged defendant’s photos constituted advertising and trade under §§ 50 and 51, as Svenson sold his photographs through the gallery which organized “The Neighbors” exhibition.

But their arguments did not convince Judge Rakower from the New York Supreme Court who found this was not a commercial use of the likeness of plaintiffs and their children. That is consistent with New York case law. For instance, in Simeonov v. Tiegs, the New York City Civil Court held in 1993 that” [a]n artist may make a work of art that includes a recognizable likeness of a person without her or his written consent and sell at least a limited number of copies thereof without violating Civil Rights Law §§ 50 and 51.”

Judge Rakower also noted that New York law protects freedom of expression, citing a 1982 New York Court of Appeals case, Arrington v. N.Y. Times. In Arrington, the photograph of plaintiff, taken without his permission in the streets of New York City, was later used to illustrate an article on “The Black Middle Class” in the New York Times magazine. The Court of Appeals ruled that the use was not commercial, even” though the dissemination of news and views is carried on for a profit or that illustrations are added for the very purpose of encouraging sales of the publications.”

Judge Rakower cited the Southern District of New York Hoepker v. Kruger case, where the SDNY ruled in 2002 that artist Barbara Kruger could use plaintiff Charlotte Dabney’s likeness in her “It’s a small world, but not if you have to clean it” work . The SDNY noted then that “[t]he advertising and trade limitation in New York’s privacy statutes was crafted with the First Amendment in mind. Through Sections 50 and 51, the New York legislature sought to protect a person’s right to be free from unwarranted intrusions into his or her privacy, while at the same time protecting the quintessential American right to freedom of expression.”

In our case, Judge Rakower reasoned that Svenson was “communicating his thoughts and ideas to the public” and that his photographs “serve more than just an advertising or trade purpose because they promote the enjoyment of art in a form of a displayed exhibition.” Even if the exhibition had been advertised, that was “beyond the limits of the statute because it related to the protected exhibition itself.”

As plaintiffs could not establish a likelihood of success on the merits, the NY Supreme Court granted defendant’s motion to dismiss. Judge Rakower noted that “[w]hile it makes Plaintiffs cringe to think their private lives and images of their small children can find their way into the public forum of an art exhibition, there is no redress under the current laws of the State of New York.” It is doubtful that the Appellate Division will have a different view of the case, but we’ll see.

Image is Goat on a Ledge in Aruba,, courtesy of Flickr user Serge Melki pursuant to a CC BY 2.0 license.

 

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