Opinion
Index No. 159860/2020 Motion Seq. Nos. 001 002
07-07-2022
ANASTASSIA KHOZISSOVA, Plaintiff, v. RALPH LAUREN CORP. and HOME BOX OFFICE INC., Defendants.
Unpublished Opinion
AMENDED DECISION + ORDER ON MOTION
ANDREA MASLEY, J.S.C
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9,10,11, 12,22,33,37,40 were read on this motion to/for DISMISS
The following e-filed documents, listed by NYSCEF document number (Motion 002) 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 38, 39 were read on this motion to/for DISMISSAL
In motion sequence number 001, defendant Home Box Inc. (HBO) moves to dismiss Anastassia Khozissova's complaint pursuant to CPLR 3211(a)(1), (5), (7), and (g), and §§ 70-a and 76-a of the New York Civil Rights Law. In motion sequence number 002, defendant Ralph Lauren Corp. (RLC) moves to dismiss plaintiff's complaint pursuant to CPLR 3211 (a)(7) and (g) and §§ 70-a and 76-a of the NYCRLC. RLC also seeks an order staying discovery and an award of costs and fees. Plaintiff alleges HBO and RLC each violated NYCRLC §§ 50 and 51 by knowingly using plaintiffs image without consent for advertising and trade purposes. (NYSCEF Doc. No. [NYSCEF] 1, Complaint at 8-10.)
Background
Unless indicated otherwise, the following facts are taken from the complaint, and for the purposes of this motion to dismiss, are accepted as true.
Plaintiff is an international fashion model who has appeared on magazine covers, in editorials, in advertising campaigns, and walked runways representing prominent fashion houses and designers. (NYSCEF 1, Complaint ¶¶ 7, 9.) Plaintiff charges $4,000-$5,000 per day or $400-$600 per hour for modeling work. (Id. ¶ 8.) Defendant RLC designs, markets, and distributes lifestyle products via retail stores and e-commerce websites. (Id. ¶ 19.) Plaintiff alleges brands rely on her unique image and talents for their sales and business. (Id. ¶ 12.) Plaintiff contends her image is a brand on its own. (Id. ¶ 15.)
Plaintiff and RLC began their business relationship in 2004 after Ralph Lauren personally approached plaintiff to be a core model for the RLC brand. (Id. ¶¶ 18, 20.) In early 2014, plaintiff allegedly uncovered an elaborate fraud scheme within RLC and was ousted as a model. (Id. ¶¶ 29-30.) Plaintiff alleges that, after her relationship with RLC was severed, RLC continued to display plaintiffs likeness in RLC stores worldwide without proper compensation. (Id. ¶ 32, 37.) RLC allegedly displayed plaintiffs photographs in RLC's retail locations in Moscow and New York City and in RLC's New York City restaurant, Polo Bar. (Id. ¶ 33.) Plaintiff further alleges images of her likeness were printed without permission in the book "50 Years of Ralph Lauren." (Id. ¶ 36.) Plaintiff asserts that RLC is knowingly using images of her for advertising and trade purposes. (Id. ¶¶ 38-39.) Plaintiff alleges that she notified RLC multiple times about the unauthorized use of her photographs, but RLC continued to display them without permission, (Id. ¶ 47-48.)
Discussion
On a motion to dismiss pursuant to CPLR 3211 (a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994].) "[B]are legal conclusions, as well as factual claims which are either inherently incredible or flatly contradicted by documentary evidence" cannot survive a motion to dismiss. (Summit Solomon & Feldesman v Lacher, 212 A.D.2d 487, 487 [1st Dept 1995] [citation omitted].)
To prevail on a CPLR 3211 (a)(1) motion to dismiss, the movant has the "burden of showing that the relied upon documentary evidence 'resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim.'" (Fortis Fin. Servs. v Filmat Futures USA, 290 A.D.2d 383, 383 [1st Dept 2002] [citation omitted].) "A cause of action may be dismissed under CPLR 3211 (a)(1) 'only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law.'" (Art and Fashion Group Corp. v Cyclops Prod., Inc., 120 A.D.3d 436, 438 [1st Dept 2014] [citation omitted].)
Pursuant to a CPLR 3211 (a)(5) for a dismissal on statute of limitations grounds, "the moving defendant must establish, prima facie, that the time in which to commence the action has expired." (Yang v Oceanside Union Free School Dist., 90 A.D.3d 649, 649 [2d Dept 2011].) If the defendant makes that showing, the burden shifts to the plaintiff to raise a factual issue that the statute of limitations has been tolled or that the plaintiff commenced the action within the applicable period. (Id. [citations omitted].)
CPLR 3211 (g) applies to motions to dismiss in certain cases involving public petition and participation. This includes claims pursuant to NYCRL § 76-a, where the plaintiffs allegations must be rooted in a substantial basis of law. (161 Ludlow Food, LLC v LE.S. Dwellers, Inc., 176 A.D.3d 434, 434 [1st Dept 2019].) "[T]he burden is upon the plaintiff to establish that its claim has the requisite substantial basis" by clear and convincing evidence. (Sackler v Am. Broadcasting Cos., Inc., 71 Misc.3d 693, 700 [Sup Ct, NY County 2021] [internal quotation marks and citation omitted].)
Statute of Limitations for NYCRL §§ 50 and 51 Claims
Defendants assert that plaintiff's claims pursuant to NYCRL §§ 50 and 51 are time-barred because these claims are subject to a one-year statute of limitations, which accrues from the time that the alleged publication was first distributed in public. HBO echoes RLC's arguments for dismissal for the documentary film.
These claims must be commenced within one year. (CPLR215[3].) The one-year statute of limitations begins to run at the first publication of the material that is the basis for the § 51 claim. (Nussenzweig v diCorcia, 9 N.Y.3d 184, 188 [2007] [citations omitted].)
"In New York, the timeliness of statutory right of privacy claims is determined by applying the 'single publication rule.' Under this rule, the one-year statute of limitations begins to run on the date the material at issue is first published or used. Even though the material may, in the same form, be subsequently distributed and used, the single publication rule rejects the claim that each instance of such distribution and use constitutes either a separate publication or a continuing wrong which extends the date of accrual."(Geary v Town Sports Intl. Holding, Inc., 21 Misc.3d 512, 513 [Sup Ct, NY County 2008] [citations omitted].) However, the statute of limitations restarts when there is a republication that is intended to reach a new audience. (Firth v State, 98 N.Y.2d 365, 371 [2002] [citations omitted].)
Photographs at Retail Location and Polo Bar
In support of its motion, RLC submits an affidavit from Foster Witt, RLC's Senior Director of Art Acquisitions, who is responsible for overseeing the display of artwork in RLC locations worldwide, including retail stores and the Polo Bar Restaurant in New York City. (NYSCEF 17, Witt aff ¶ 1.) Witt admits that plaintiffs photograph was displayed in RLC's retail location at 888 Madison Avenue in New York City in 2010 but it was removed and never redisplayed. (Id. ¶
¶ 5-6, 10.) Witt denies that images of plaintiff were displayed at the Polo Bar restaurant. (Id. ¶ 4.) Witt asserts that the photographs were used as artwork and not used in connection with any products that were displayed or offered for sale on the floor at the New York City retail location. (Id. ¶¶ 8-9.)
However, on a motion to dismiss, defendant's affidavit cannot conclusively refute plaintiff's allegation that photographs of plaintiff "are currently being used" in RLC retail stores and the Polo Bar. (NYSCEF 1, Complaint ¶ 33.) Affidavits "extrinsic to the pleadings and documentary evidence could not" defeat a motion to dismiss. (HPS Jewelers, Inc. v Brown, 2011 NY Slip Op 33836[U], *5 [Sup Ct, NY County 2011] [defendant's counsel's affidavit denying that defendant is a merchant under the UCC could not defeat plaintiff's complaint].) At most, Witt's affidavit creates an issue of fact about alleged date of publication and republication. RLC's motion to dismiss the in-store and Polo Bar photography claims based on the one-year statute of limitations is denied without prejudice.
50 Years of Ralph Lauren Book
While RLC also denies there is a book titled "50 Years of Ralph Lauren," RLC admits there are two books that bear that approximate title. (NYSCEF 19, Carter aff ¶ 8.) The two possible books are Ralph Lauren by Ralph Lauren (RLC 50 Years), which includes the phrase "50 Years" on the top right cover, and WWD Fifty Years of Ralph Lauren (WWD). (Id. at ¶¶ 9-10.) RLC maintains the books were published in 2017 and 2018, respectively, and have never been republished in any other format. (Id.) RLC asserts plaintiffs image appears on 9 out of 640 images in the RLC 50 Years book and on one out of 192 pages in the WWD book. (Id. ¶¶
12-13.) RLC insists that the books are a biographical account of Ralph Lauren through illustrative images of fashion and models. (Id. ¶ 11.)
Mary Carter, the Senior Vice President of Publishing and Cultural authorship. (NYSCEF 19, Carter aff ¶ 1.)
RLC submits copies of these two books in support of its motion. The copy of RLC 50 Years indicates that it was first published in the United States in 2007 with a copyright date of 2017. (NYSCEF 20, RLC 50 Years at 532.) The copy of WWD indicates that it was first published in 2018 with a 2018 copyright date. (NYSCEF 21, WWD at 99.)
The submission of the books evidence that they were first published in 2007 and 2018. (See NYSCEF 20, RLC 50 Years; NYSCEF 21, WWD.) However, it is not clear whether the books were republished.
"Republication, retriggering the period of limitations, occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely 'a delayed circulation of the original edition.5 The justification for this exception to the single publication rule is that the subsequent publication is intended to and actually reaches a new audience. Thus, for example, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action."(Firth, 98 N.Y.2d at 371 [citations omitted].) The court cannot rely on Carter's affidavit averring that they were not republished in any other format. (See HPS Jewelers, Inc., 2011 NY Slip Op 33836[U], *5.) Thus, RLC's motion to dismiss these claims as untimely is denied without prejudice.
HBO Documentary
On a 3211 (a)(5) motion, defendant has the burden of showing that plaintiffs claim is time barred. (Yang, 90 A.D.3d at 649.) In support of its motion, HBO submits the affidavits of Susan Benaroya, Senior Vice President of HBO's East Coast Production, and Joseph Weiner, Associate Creative Director for HBO. (NYSCEF 9, Benaroya aff; NYSCEF 11, Weiner aff.) Benaroya avers that the documentary was released on November 12, 2019. (NYSCEF 9, Benaroya aff ¶ 3.) Weiner avers that the trailer of the documentary was released on October 28, 2019. (NYSCEF 11, Weiner aff ¶ 3.) Again, defendant's affidavits cannot defeat a motion to dismiss. (See HPS Jewelers, Inc., 2011 NY Slip Op 33836[U], *5.) HBO has not met its burden, and thus, its motion to dismiss these claims as time barred is denied without prejudice.
NYCRL §§ 50 and 51 Claims
Plaintiff alleges that RLC knowingly used and continues to knowingly use photographs of plaintiff within RLC's retail store and the Polo Bar for advertising and trade purposes. (NYSCEF 1, Complaint ¶¶ 33, 43.) Additionally, plaintiff claims that she appears in the "50 Years of Ralph Lauren" book, and RLC's documentary film "Very Ralph" and its trailer for advertising and trade purposes without her consent. (Id. ¶ 44-45.) Plaintiff further alleges that HBO knowingly used and continues to use plaintiff's likeness for advertising and trade purposes without consent in the documentary trailer and the film itself, which airs on HBO's cable television network and internet streaming service. (Id. ¶ 50.)
RLC contends that, even if the claims are not time barred, they still fail as a matter of law because (1) any images of plaintiff in the retail location, restaurant, and books are matters of public interest and were not used for advertising or purposes of trade, (2) any images of plaintiff in the retail location or book were fleeting, and (3) any book that may contain plaintiff's image is protected by the First Amendment as a newsworthy publication on a matter of public interest. HBO echoes RLC's arguments for dismissal for the documentary film.
"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." (NYCRL § 50.) NYCRL § 51 expands § 50 and provides in relevant part "[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action... to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use... ." (NYCRL § 51.) "Civil Rights Law § 51 ... 'adds the civil damages teeth' and 'makes a violation of section 50 actionable in a civil suit.'" (Lohan v Take-Two Interactive Software, Inc., 31 N.Y.3d 111, 119 [2018] [citations omitted].)
NYCRL §§ 50 and 51 only address the commercial use of an individual's name or likeness. (Id. at 120 [citation omitted].) To successfully prevail on a § 51 claim, "a plaintiff must prove: (1) use of plaintiff's 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.'" (Id. [internal quotation marks and citation omitted].) Actions encompassing newsworthy events or matters of public interest are non-commercial as § 51 is rooted in the First Amendment's guarantee that freedom of speech and the press "transcends the right to privacy." (Id. [internal quotation marks and citations omitted].)
An individual's image illustrating or connecting to an article on a newsworthy issue or matter of public interest will not be considered advertising or trade unless the image has no real connection to the publication, or the publication is an advertisement in disguise. (Pagan v New York Herald Tribune, Inc., 32 A.D.2d 341, 343 [1st Dept 1969], affd 26 N.Y.2d 941 [1970].) While the statute does not define trade or advertising, courts have declined to interpret these terms to include the publication of newsworthy events or matters of public interest. (Finger v Omni Publications Intern., Ltd., 77 N.Y.2d 138, 141 [1990] [citations omitted].)
An image qualifies as "advertising" if it appears in a publication that was distributed or used as "an advertisement or solicitation for patronage of a particular product or service." (Beverley v Choices Women's Med. Ctr, Inc., 78 N.Y.2d 745, 751 [1991] [citation omitted].) The court shall consider whether the image "attracted customers to defendant and/or helped defendant make a profit." (Rail v Hellman, 284 A.D.2d 113, 114 [1st Dept 2001] [citation omitted].) However, the fact that the defendant received a profit does not necessarily mean that the image is being used for trade purposes as intended by the statutes. (Foster v Svenson, 128 A.D.3d 150, 160 [1st Dept 2015] [citation omitted].)
"[T]he critical factor as to the statutory protection under NYCRLC § 51, is the content of the published article in terms of whether it is newsworthy, which is a question of law, and not the defendant's motive to increase circulation." (Freihofer v Hearst Corp., 65 N.Y.2d 135, 140-141 [1985].) Newsworthiness is broadly construed to "include[] not only descriptions of actual events, but also articles concerning political happenings, social trends, or any subject of public interest." (Messenger ex rel. Messenger v Gruner + Jahr Print, and Pub., 94 N.Y.2d 436, 441 -42 [2000] [citations omitted].) The content of the article, rather than the defendant's motive to increase exposure, determines whether it is newsworthy or for trade usage. (Id. at 442.)
Courts have applied the newsworthiness exception to news publications concerning consumer interest and developments in fashion. (Stephano v News Group Publications, Inc., 64 N.Y.2d 174 [1984] [dismissing § 51 claim regarding a photograph of plaintiff modeling a jacket in a magazine article about fashion trends]; see also Pagan 32 A.D.2d 124 [dismissing § 51 claims regarding plaintiffs' appearance in a magazine article about swimwear]; LaForge v Fairchild Publications, Inc., 23 A.D.2d 636 [1st Dept 1965] [dismissing § 51 claim regarding a published pictorial story about runway fashion at races because the illustrations in the article were a legitimate matter of public interest].) The newsworthy exception extends beyond newspapers and magazines, and applies to motion pictures, novels, and other written or non-written materials published or televised for entertainment purposes. (Foster, 128 A.D.3d 156 [citations omitted].) This includes documentary films. (BeveRLCey, 78 N.Y.2d at 752.) That the editorial use of images in documentaries or other publications concerning newsworthy events or matters of public interest are not prohibited by the statute. (Ward v Klein, 10 Misc.3d 648, 654 [Sup Ct, NY County 2005], citing Finger, 77 N.Y.2d 143.)
Additionally, there is an exception to § 51 for incidental use of a person's image or likeness. (Id.) The use of an image must be more than fleeting or incidental to the main purpose of subject of the publication to be actionable. (Delan by Delan v CBS, Inc., 91 A.D.2d 255, 260 [2d Dept 1983] [citations omitted]; see also University of Notre Dame Du Lac v Twentieth Century-Fox Film Corp., 22 A.D.2d 452, 454 [1st Dept 1965] affd 15 N.Y.2d 940 [1965] [dismissing § 50 and 51 causes of action based on the fleeting and incidental nature exception where an individual was referred to by name on 3 pages out of a 143-page book].)
The question here is whether RLC and HBO used plaintiff's image for trade of advertising purposes within the meaning of the statute when they either displayed photographs of plaintiff in RLC's retail locations and restaurant, published them in the 50 Years books or used them in the documentary and trailer.
Plaintiff concedes that fashion is a matter of public interest, and that Ralph Lauren is a public figure, but argues that the publications are advertisements in disguise, relying heavily on Beverly. In Beverly, the Court of Appeals found a calendar distributed by a for-profit medical facility was an advertisement because of the "pervasive and prominent placement of [the facility's] name, logo, address and telephone number on each page of the calendar, the wide scope of distribution of the calendar and the range and nature of the targeted audiences, and the glowing characterizations and endorsements concerning the services [the facility] provides." (Beverley, 78 N.Y.2d at 751.) Here, the books, documentary, and trailer are not the same as the calendar in Beverly. A review of the books, documentary, and trailer indicates nothing in particular to suggest that they were published for predominately commercial purposes. As discussed above, New York courts have consistently held the newsworthy publications are excluded from §§ 50 and 51 claims. Ralph Lauren, as an individual and as a brand, certainly falls within the protected category of public interest and fashion. The books, documentary, and trailer are publications of newsworthy events and are outside the scope of § 51. The inclusion of plaintiffs image certainly bears a reasonable relationship to the content of the publications.
Moreover, plaintiff has not adequately alleged that the use of plaintiffs image was more than fleeting or incidental. Plaintiff does not dispute that she only appears in 38 seconds of the 108-minute documentary, nor does plaintiff dispute that she appears in 9 out of 640 images in RLC Fifty Years and in 1 image out of 192 images in WWD. Plaintiff is not the focus or a crucial part of the documentary, trailer, or the books. Plaintiff fails to sufficiently allege that the appearances in the documentary, the trailer, or the books are anything more than incidental.
However, the photographs allegedly displayed in the RLC retail store, and the Polo Bar, cannot be said to be newsworthy. Considering the primary purpose of a retail store and restaurant is to attract commercial activity and attract customers, plaintiff has sufficiently pled that the photographs displayed in the RLC retail location and restaurant are advertisements or used for trade purposes.
Anti-SLAPP Statute
Defendants invoke the Anti-SLAPP, law NYCRL § 76-a, and argue plaintiffs claims involving the books and documentary must be dismissed. Defendants contend the newly amended Anti-SLAPP statute applies retroactively and thus defendants seek attorneys' fees. Plaintiff does not address the Anti-SLAPP argument. As the claims involving these mediums are dismissed, the court will still address the applicability of this statute and whether it supports an award of attorneys' fees to defendants.
SLAPP is an acronym for Strategic Lawsuits Against Public Participation.
NYCRL § 76-a was amended on November 10, 2020 to provide, in relevant part, that
"an action involving public petition and participation is based upon (1) any communication in a place open to the public or a public forum in connection with an issue of public interest or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition."(NYCRLC § 76-a.) Public interest is construed broadly to mean any subject other than a purely private matter. (NYCRL § 76-a[1][2][d].)
NYCRL § 76 triggers NYCRL § 70(1)(a), which allows a defendant to recover damages, including costs and attorney's fees from the plaintiff who initiated or continued the action. "[C]osts and attorney's fees shall be recovered upon a demonstration... that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law." (NYCRL § 70-a[1][a].)
Amended statutes that are "ameliorative or remedial legislation" are applied retroactively to immediately employ the intended benefit. (In re Marino S., 100 N.Y.2d 361, 370-71 [2003] [citations omitted].) However, classifying a statute as ameliorative or remedial does not overcome the presumption that the statute is prospective rather than retroactive. (Majewski v Broadalbin-Perth Cent. School Dist, 91 N.Y.2d 577, 584 [1998] [citations omitted].) Likewise, when the legislature enacts a statute to go into effect immediately, it is not determinative of the legislature's intent to have a retroactive effect. (Id. at 583.) New York's Anti-SLAPP amendments
"were intended to better advance the purposes of the legislation by correcting the narrow scope of the prior anti-SLAPP law, we find that the presumption of prospective application of the amendments has not been
defeated. The legislature acted to broaden the scope of the law almost 30 years after the law was originally enacted, purportedly to advance an underlying remedial purpose that was not adequately addressed in the original legislative language. The legislature did not specify that the new legislation was to be applied retroactively. The fact that the amended statute is remedial, and that the legislature provided that the amendments shall take effect immediately, does not support the conclusion that the legislature intended retroactive application of the amendments."(Gottwald v Sebert, 203 A.D.3d 488, 489 [1st Dept 2022].) The Anti-SLAPP amendment is very clearly not retroactive. (Id.) Therefore, costs and attorney's fees are denied based on NYCRLC § 70-a(1)(a). Accordingly, it is
ORDERED that the motion of defendant Home Box Office Inc. to dismiss the complaint is granted and the complaint is dismissed in its entirety as against the defendant; and it is further
ORDERED that defendant Ralph Lauren Corp.'s motion to dismiss is granted, in part, to the extent that the claims involving the books and documentary film are dismissed; and it is further
ORDERED that defendants' request for attorneys' fees and costs pursuant to Civil Rights Law § 70-a(1)(a) is denied; and it is further
ORDERED that Ralph Lauren Corp. is directed to serve an answer to the complaint by July 27, 2022; and it is further
ORDERED that the action is severed and continued against Ralph Lauren Corp.; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set for in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nvcourts.gov/supctmanh)]; and it is further
ORDERED that the remaining parties are to submit a joint preliminary conference order by August 3, 2022; if the parties cannot come to an agreement, then they may submit competing PC Orders. Order(s) shall be sent to SFC-Part48@nycourts.gov .