Opinion
01 Civ. 1339 (CSH)
December 20, 2002
MEMORANDUM OPINION AND ORDER
This action arises from the alleged unauthorized use of the likeness of plaintiff Marika Zoll, a model, by Jordache Enterprises ("Jordache"). Zoll participated in a video shoot wearing Jordache jeans in 1978. Footage from this video shoot containing images of Zoll was aired nationwide as a television commercial for Jordache jeans from 1978 to 1979 (the "1978 commercial"). Following discovery, defendant moves for summary judgment.
I. BACKGROUND
A. The Uses Defendant Made of Plaintiff's Likeness.
Since 1979, footage from the 1978 video shoot containing images of Zoll has been re-aired in three, distinct contexts: (1) In 1997, two new commercials, "Disco" and "Street", were created which intermixed brief segments of footage of Zoll shot in 1978 with new, contemporary footage (the "1997 commercial"); (2) In 2000, Jordache again aired the 1978 commercial as part of a nationwide advertising campaign for its vintage jean line (the "2000 re-release"); and (3) From 2000 to 2001, Jordache and Ruder Finn, a public relations firm hired by Jordache, engaged in a publicity campaign that involved producing compilation tapes featuring the 1978 commercial and providing the 1978 commercial to various television programs, sometimes in conjunction with the interview of Jordache employees (the "publicity campaign").
Jordache did not pay Zoll for the use of her image in any of these three re-airings. In the present action, Zoll seeks compensation for the use of her image with regard to the 2000 re-release and the publicity campaign.
I will now describe these several uses of plaintiff s likeness in greater detail.
B. The 1978 Commercial.
In 1978, Jordache hired HGO, an advertising and production company owned by one Howard Goldstein, to make a commercial for $15,000. HGO exercised full autonomy in the production of the commercial, including the selection and hiring of models. (Goldstein Dep. at 10.). Zoll, who was represented at the time by Wilhelmina Model Agency, was hired by Goldstein and paid $900 for her participation in a day-long video shoot in March of 1978 in connection with the production of the Jordache commercial. (Zoll Dep. at 10, 24.) The video footage of Zoll was incorporated into a commercial for Jordache jeans by HGO, provided to Jordache, and subsequently aired nationwide as the 1978 commercial.
Although both parties agree that Zoll signed a release with regard to the 1978 commercial, the release has not been located and there is a dispute between the parties over its nature and terms. Zoll says that her participation in the video shoot was negotiated by her agent upon the understanding that the video footage resulting from the session would be used for "an in-house promotional piece." (Zoll Dep. at 24. See also Zoll Decl.) Zoll recalls that Goldstein asked her to sign a standard "buyout" release, but that she declined and instead signed a more limited release that was negotiated by her agent on the day of the shoot and that provided only for in-house use of the video footage. (Zoll Dep. at 36-38. See also Zoll Decl.) Thus, Zoll contends that, pursuant to the release that she signed on the day of the video shoot in March 1978, HGO and, by extension, Jordache only had the limited permission to use her image for in-house purposes.
Under a "buyout" release, a model receives complete and full payment for services rendered at the time of the initial shoot and has no rights with regard to future uses of the video footage produced at said shoot. (Goldstein Dep. at 8.)
Jordache takes the position that the release signed by Zoll was a more inclusive "buyout" release. In support of this view, Goldstein testified that HGO exclusively employed "buyout" releases in its dealings with models such as Zoll. The owner of Jordache, Joe Nakash, testified further that HGO "agreed to provide Jordache with a commercial that Jordache would be able to air on an unlimited basis without having to pay residual fees to the performers" and that "Jordache never received a copy of the releases signed by the performers." (Nakash Aff. at 2.)
While plaintiff urges that the disagreement over the nature and terms of the release she signed constitutes a dispute over a material fact that renders this case unsuitable for summary judgment, it is well established that a dispute over a fact that is not material, or that is not relevant to the outcome of the case, does not preclude a grant of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (holding that a material fact is one that "might affect the outcome of the suit under the governing law" and that "[f]actual disputes that are irrelevant or unnecessary" cannot defeat a motion for summary judgment); Loria v. Gorman, 306 F.3d 1271, 1282-1283 (2d Cir. 2002) ("Although there was indeed a factual dispute on the issue, it was not material and therefore cannot preclude a grant of summary judgment."). For purposes of this summary judgment motion, this Court accepts Zoll's contention that she signed a narrow, in-house release with regard to the 1978 commercial. Thus the analysis that follows proceeds from the premise that Zoll signed a release with regard to the 1978 commercial and that this release limited HGO and, by extension Jordache, to the right to use her image in the 1978 commercial solely for in-house purposes.
The 1978 commercial, produced by HGO and paid for by Jordache, aired nationwide with great frequency from late 1978 into 1979. This broad dissemination of the commercial would have been in excess of the use authorized by the limited in-house release signed by Zoll. Zoll saw the commercial, believed at the time that Jordache did not have the right to broadcast it, and contacted her agent and a lawyer with regard to seeking compensation. (Zoll Dep. at 65.) However, Zoll did not contact Jordache in 1978, 1979 or at any time during the 1980s to register her objection to the use of her image in the 1978 commercial, Nakash Aff. at 2, nor did she bring suit challenging the airing of the 1978 commercial or requesting monies therefor. (Zoll Dep. at 59-62.) Zoll testified that she did not bring legal action at this time because she could not afford legal counsel. (Zoll Dep. at 62, 64.)
C. The 1997 Commercials.
Nearly twenty years after the airing of the 1978 commercial, Jordache reached into its archives, pulled out the 1978 commercial, and used portions of it in two new commercials advertising Jordache jeans. Jordache hired Lotas, Minard, Patton Mclver ("LMPM") to produce two television commercials. The 1997 commercials, "Disco" and "Street", both featured footage shot during the taping of the 1978 commercial. (Gordon Depo. at 6-8.) In both commercials, footage from the 1978 video shoot was shown as part of a "commercial in a commercial." (Pl.'s Resp. to Def.'s Second Set of Interrogs.) Essentially, portions of the 1978 footage were shown on televisions in the background of scenes depicted in the new commercials. During the course of the production of the 1997 commercials, Jordache informed LMPM that the actors in the 1978 commercial had signed buyout agreements and, in addition, that Zoll was deceased. (Letter from Keith Gordon of LMPM to Ralph Nakash of Jordache dated August 27, 1997.) As with Mark Twain, this report of plaintiff's death was exaggerated.
Zoll, still very much alive, became aware of the re-use of portions of the 1978 footage in the 1997 commercials and, acting initially through her agent and subsequently through her then-attorney, contacted LMPM and Jordache various times in 1997 in an attempt to gain compensation for use of her image in the 1997 commercials. ( See generally Ex. F to Pl.'s Aff.) In addition, Gordon, an account manager at LMPM, contacted Jordache repeatedly between August and November of 1997 requesting that Jordache address Zoll's request for compensation. Id. The accumulated. correspondence further reveals that Zoll contacted the Screen "Actor's Guild (SAG) regarding her request for compensation and that SAG became involved in contacting LMPM on her behalf. (Letter from Keith Gordon to Ralph Nakash dated August 27, 1997.)
However, Zoll never filed suit with regard to the 1997 commercials. Plaintiff concedes that the statute of limitations expired on these claims before she brought suit in this case and that these claims are not part of the present action. (Pl.'s Resp. to Interrogs.) ("In Summer of 1997 plaintiff contacted a lawyer about uses of parts of 1978 commercial (after her then agent failed to secure moneys) but the lawyer did zero and permitted a statute of limitations to expire thus preventing plaintiff from going to court for 1997 uses which are totally separate from uses in 2000 and 2001 in this action.") There are no claims in the present case for compensation for use of Zoll's image in the 1997 commercials.
D. The 2000 Re-Release.
The 1978 commercial was again used by Jordache in 2000. In late-October 2000, Jordache launched a vintage jeans line styled after the jeans worn by Zoll in the 1978 commercial. The 1978 commercial was re-aired (the 2000 re-release) to promote the launch and was aired both in New York and nationally from October 2000 to January 2001. The 2000 re-release also aired for five days in Las Vegas in February 2001. (Berlinger Depo. at 92-94.).
Jordache has submitted testimony that the 2000 re-release was identical to the 1978 commercial and was, therefore, a re-airing of the 1978 commercial in its original format. (Berlinger Aff. at 2.) ("Jordache made no changes to the 1978 version of the Commercial for its re-broadcast in 2000-2001.") Plaintiff disputes this and contends that Jordache has not provided sufficient proof that the 2000 re-release was identical to the 1978 commercial. See discussion infra.
E. The Publicity Campaign.
Jordache and a public relations firm hired by Jordache, Ruder Finn, engaged in various efforts to publicize the launch of the vintage jeans line that involved the 1978 commercial. As part of the publicity campaign, Jordache and Ruder Finn created compilation tapes that included the 1978 commercial. The compilation tape produced by Jordache featured a condensed and stylized overview of the media attention afforded to the vintage jeans line. The compilation tape produced by Ruder Finn featured clips of Jordache promotional items relating to the vintage jeans line (including the 1978 commercial) and was distributed to various television programs and perhaps elsewhere. Ruder Finn also arranged for Jordache representatives to be interviewed on some of these television programs. (Berlinger Dep. at 93-97; 36, 88, 100.) Jordache did not impose any restrictions on Ruder Finn's use or distribution of the 1978 commercial during the publicity campaign and all or part of the 1978 commercial was aired during various programs as late as May 21, 2001. Id.
II. PROCEDURAL HISTORY
Plaintiff brought the present action on February 23, 2001. In her amended complaint, plaintiff alleges that Jordache has used the 1978 commercial and, thereby, her image, without her consent and asserts three claims for relief. Plaintiff seeks damages on the grounds that defendant violated her rights of privacy and rights of publicity under the New York Civil Rights Law § § 50 and 51, that defendant has been unjustly enriched through its unauthorized use of her likeness, and that defendant trespassed upon and converted her likeness for profit. Plaintiff moved to amend her complaint for a second time to add causes of action under the law of each state in which the commercial was aired. This motion to amend was denied in an opinion by Magistrate Judge Francis on the ground that such amendment would be futile as the single publication rule does not permit more than one cause of action. (Mem. and Order of Dec. 5, 2001 at 7.)Defendant filed an answer on April 26, 2001 that denied plaintiffs allegations and asserted three affirmative defenses — that plaintiff's claims are barred by the doctrine of waiver, the doctrine of estoppel, and the existence of a release. Defendant subsequently moved this Court and was granted leave to amend its answer to add as an affirmative defense that plaintiffs invasion of privacy claim is barred by the one-year statute of limitations. (Mem. Op. and Order of 3/28/02.) Defendant now moves for summary judgment on the grounds that plaintiffs statutory claims are barred by the statute of limitations, plaintiff's common law claims are supplanted by her statutory claims, and that both the doctrines of estoppel and laches bar this action.
This Court finds it prudent to reference a development that, while not of direct consequence to the present proceedings, is related to the underlying matter. On May 13, 2002, plaintiff filed a separate but related complaint alleging that Ruder Finn, Inc. and Jordache had caused Zoll's image to be broadcast on a Los Angeles television station without her consent and seeking relief under § 3344 of the California Civil Code and the common law theories of unjust enrichment and trespass and seeking $250,000 in damages. (Complaint in 02 Civ. 3652.) This Court ordered that the defendant's time to answer or otherwise move with respect to the complaint in this new action is set at thirty days after the docketing of this Court's order in the pending summary judgment motion in the case presently under consideration, Zoll v. Jordache Enterprises, Inc. 01 CIV 1339 (CSH). (Stip. and Order dated June 11, 2002.)
III. DISCUSSION
A. Choice of Law.Plaintiff is a resident of California; defendant is a New York corporation. Plaintiff's complaint raised a claim for relief under New York law ("[d]efendant has violated plaintiff's rights of privacy and rights of publicity as protected by New York Civil Rights Law") (emphasis added) as well as three common law claims for relief. Plaintiff moved to amend her complaint to add forty-eight separate causes of action under the statutes and common law of forty-eight different jurisdictions, but this motion was denied.
During his review of plaintiffs motion to amend her complaint, Magistrate Judge Francis considered, but found it unnecessary to rule upon, choice of law issues in this case. Magistrate Judge Francis noted that under New York conflict of law rules, right of publicity claims are governed by the substantive law of the plaintiff's domicile, while right of privacy claims are governed by the substantive law of the state with the most significant relationship to the violation of the right. Magistrate Judge Francis suggested that plaintiff's right of publicity claim might properly be considered under California law, although plaintiffs right of privacy claim might properly be considered under New York law. (Mem. and Order of 12/5/01 at 3-4.)
Since Magistrate Judge Francis first reviewed the choice of law issue, plaintiff has provided a number of submissions to this Court that cite and rely solely on New York law. ( E.g., Plaintiff's Memorandum in Opposition to Summary Judgment.) In addition, plaintiff has filed a separate action expressly asserting statutory claims under California law (as well as two common law claims for relief). (Complaint in 02 Civ. 3652 (filed on 5/13/02).) Defendants, in their Memorandum of Law in Support of Summary Judgment, addressed the choice of law issue thoroughly, setting forth rationales for applying New York law to the right of privacy and other asserted claims. Plaintiff did not dispute or otherwise address the choice of law issue in her responsive filings.
Defendants state that plaintiff abandoned her right of publicity claim based on remarks made by counsel for plaintiff during plaintiffs deposition. A review of the deposition transcript, however, suggests that the conversation may not rise to the level of abandoning entirely the right of publicity claim, as counsel for plaintiff stated merely that "[t]he right of publicity does not exist in New York State, although it exists elsewhere in other jurisdictions where the commercial has been telecast." (Zoll Depo. at 103.)
There is a well settled "principle that implied consent to use a forum's law is sufficient to. establish choice of law." Tehran-Berkeley Civil and Envtl. Engineers v. Tippetts-Abbett-McCarthy-Stratton, 888 F.2d 239, 242 (2d Cir. 1989). Where a claim arguably touches other jurisdictions, but the parties cite cases from and rely on the law of the forum jurisdiction and do not dispute application of the law of the forum jurisdiction, their conduct may be taken as a stipulation that the law of the forum applies. See Walter E. Heller Co. v. Video Innovations. Inc., 730 F.2d 50, 52 (2d Cir. 1984) ("[I]n the absence of a strong countervailing public policy, the parties to litigation may consent by their conduct to the law to be applied."). See also Petroleo Brasileiro. S.A., Petro. v. Ameropan Oil Corp., 372 F. Supp. 503, 508 n. 23 (E.D.N.Y. 1974) ("The second cause of action . . . would appear . . . to raise a question of [Brazilian] law . . . . But . . . it also appears that despite the international character of the sale, the parties are content to have their contract rights determined under [the] New York [Uniform Commercial Code].") (citation omitted); El Hoss Eng'g Transp. Co. v. American Indep. Oil Co., 183 F. Supp. 394, 399, (S.D.N.Y. 1960), rev'd on other grounds, 289 F.2d 346 (2d Cir.), cert. denied, 368 U.S. 837, 82 S.Ct. 51, 7 L.Ed.2d 38 (1961) ("[N]either party has made any contention that the law of Kuwait governs . . . the agreement. Nor has either made any reference . . . to what the law of Kuwait . . . is . . . . Both have treated the case throughout on the basis that the law of the forum applies . . . . [T]his has the effect of a stipulation between them that the case should be governed by the law of the forum . . . ."). See generally Lopez v. Bulova Watch Co., 582 F. Supp. 755, 757 (D.R.I. 1984) ("The parties have . . . briefed . . . in terms of Rhode Island law, so the court may accept the implicit premise that such law governs [the state] claims."). In light of this principle, plaintiff's citation to New York law in her amended complaint, plaintiff's exclusive citation to and reliance upon New York law in her subsequent submissions to this Court, and plaintiff's declination to contest the choice of law argument put forth by defendants, is deemed by this Court to constitute an implied consent to use New York law and to settle the choice of law issue with regard to the present action.
B. Summary Judgment Standard.
The standard to be applied by this Court in evaluating an application for summary judgment is set out in Rule 56, Fed.R.Civ.P. Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact and this burden may be "satisfied if it can point to the absence of evidence necessary to support an essential element of the non-moving party's claim." Gold v. Berkin, 2001 WL 121940 at *2 (Feb. 13, 2001 S.D.N.Y.). If there is "any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party," then summary judgment should not be granted. Donahue v. Artisan Entertainment, Inc., 2002 WL 523407 at *1 (April 8, 2002 S.D.N.Y).
Rule 56 provides that a party resisting summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). As described further:
[J]udges . . . [are not] required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party . . . .[I]n every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.Eppendorf-Netheler-Hinz v. Enterton Co., 89 F. Supp.2d 483, 485 (S.D.N.Y. 2000), quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal citations omitted). See also Western World Ins. Co. v. Stack Oil. Inc., 922 F.2d 118, 121 (2d Cir. 1990) ("The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.") (citations and internal quotation marks omitted). Thus, the party resisting summary judgment must "come forward with specific facts to show there is a factual question that must be resolved at trial." Donahue, 2002 WL 523407 at *1.
C. Statutory Claims.
1. The Statute of Limitations.
Plaintiff alleges in her complaint that Jordache violated her statutory right of privacy under New York Civil Rights Law § 50 and § 51 by broadcasting the 1978 commercial in violation of the (for these purposes assumed) limited release that she signed allowing only for in-house use of her likeness. The New York Civil Rights Law creates a cause of action for "[a]ny person whose name, portrait, picture or voice is used within . . . [New York] for advertising purposes or for the purposes of trade without . . . written consent". N.Y. Civ. Rts. § 51. In its amended answer, Jordache asserts a defense based on the statute of limitations that relies on New York's single publication rule.
As discussed at length in this Court's Opinion and Order of March 28, 2002, 2002 WL 485733 (granting defendant leave to amend its answer), the single publication rule applies to statutory invasion of privacy claims and provides that only one cause of action is recognized, even where a publication is distributed numerous times over an extended period.Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119, 81 (1948). Thus, the first time that an offending item is published, the one-year statute of limitations set out in New York Civil Practice Law and Rules § 215 begins to run and the dissemination of that same offending item thereafter does not give rise to a new cause of action, nor does it refresh the running of the statute of limitations. In New York, the statute of limitations for an invasion of privacy claim is one year, begins to run on the first day of publication, and is not renewed when the same item is published again. 2002 WL 485733 at *3-4 (collecting cases).
This rule has been held applicable to privacy claims arising from the airing of commercials. Nelson v. Working Class, Inc., 2000 WL 420554 at *3 (S.D.N.Y. April 18, 2000). In Nelson v. Working Class. Inc., Judge Baer applied the single publication rule where an advertising agency produced a television commercial that used a recording of plaintiff's voice and the plaintiff brought a claim under the Civil Rights Law. The commercial was broadcast between September 1997 and April 1998 and Judge Baer held that the statue [statute] of limitations began to run in September 1997 and was not refreshed with each airing of the commercial. Id. In light of this rule, plaintiffs claim in the present case must, therefore, meet the statute of limitations deadlines as set by the single publication rule.
Jordache, as the proponent of the summary judgment motion, bears the threshold burden of demonstrating that there is an absence of a genuine issue of material fact with regard to whether Zoll's claim is time barred. Gold v. Berkin, 2001 WL 121940 at *2 (S.D.N.Y. 2001). As noted previously, although there is a dispute over the terms and nature of the release signed by Zoll contemporaneously with the filming of the 1978 commercial, this does not constitute a material fact within the context of the statute of limitations. For purposes of this motion the Court assumes, as previously noted, that the release signed by Zoll was, as she has testified, a limited release providing only for in-house use of her likeness. The facts material to a determination of whether Zoll's claim is time barred are (2) when the initial offending item was published, and (2) when Zoll brought her action. A review of the record shows that Jordache has demonstrated that there is no issue of material fact with regard to either of these points.
There is no dispute that the 1978 commercial was initially aired in late 1978. There is also (for purposes of the present motion for summary judgment) no dispute over the proposition that the 1978 commercial, when aired in 1978 to 1979, was aired in excess of the rights afforded to Jordache in the release signed by Zoll. Zoll has testified that she believed that the airing of the 1978 commercial in 1978 was in violation of her rights. (Zoll Dep. at 65 ("Q: And I take it you believed at the time [summer 1978] that Jordache did not have the right to broadcast the commercial, correct? A: Correct.").)
Thus, there is no dispute of fact over the date that the initial offending item was published. The parties agree and the record supports that the 1978 commercial was first aired in late 1978, and I accept for this motion that this airing constituted an unauthorized use of Zoll's likeness. Accordingly, the initial broadcasting of the 1978 commercial in late 1978 constitutes the original publication alleged to violate Zoll's statutory right of privacy and is, therefore, the publication and date of airing triggering the running of the limitations period.
There is likewise no dispute over the date that the present action was initially brought. Plaintiffs complaint was filed on February 23, 2001. The time elapsed between the airing of the publication of the initial offending item (late 1978) and the date that the plaintiff's complaint was filed clearly exceeds a year. As discussed above, the single publication rule, in conjunction with New York Civil Practice Law and Rules § 215, sets a limitation of a year for a plaintiff to bring an action in a statutory violation of privacy claim and this limitation is indexed to the date of the initial offending publication. Pursuant to this analysis, the statute of limitations for plaintiff to bring a claim for violation of her statutory right of privacy for the airing of the 1978 commercial expired at some point in 1979, well before the date on which the present action was commenced.
As this Court is satisfied that Jordache has met its threshold burden of demonstrating the absence of any genuine issue as to a material fact with regard to its statute of limitations defense to plaintiff's statutory claim, it is now necessary to review the record to determine whether plaintiff has "'come forward with specific facts to show there is a factual question that must be resolved at trial." Donahue v. Artisan Entertainment, Inc., 2002 WL 523407 (S.D.N.Y. 2002) (internal citation omitted). Plaintiff must "produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.'" Id.
Plaintiff raises two issues that she contends constitute disputed material facts that preclude summary judgment. The first issue relates to the concept of republication and is discussed in Part III.C.2, infra. The second relates to the concept of newsworthiness, and is discussed in Part III.C.3.
The Court will review the republication and the newsworthiness issues in turn.
2. Republication.
The single publication rule does not apply where an item is published initially, but is then republished, not merely as a belated release of the original publication, but as a republication. Rinaldi v. Viking Penguin. Inc., 422 N.Y.S.2d 552 (N.Y.Sup.Ct. 1979), aff'd as modified, 425 N.Y.S.2d 101 (N.Y.App.Div. 1980), aff'd, 52 N.Y.2d 422 (N.Y. 1981). Before determining whether there is evidence in the record sufficient to support a finding that there is an issue of material fact as to whether subsequent airings of the 1978 commercial in 2000 and 2001 constituted republications, it is necessary to consider the standard for identifying a subsequent publication as a republication that refreshes the statute of limitations.
It has been observed that "[w]hether a particular event constitutes a reissue or republication so as to give rise to a new cause of action with a new period of limitations is frequently difficult to determine, depending on the facts of each particular case," Rinaldi v. Viking Penguin, Inc., 425 N.Y.S.2d 101, 102 (N.Y.App.Div. 1980), aff'd, 52 N.Y.2d 422 (N.Y. 1981), although in certain instances the distinction is apparent. See generally Karaduman v. Newsday. Inc., 71 A.D.2d 411, 413 (Sup.Ct. App. Div. 1979) (holding that the subsequent printing of an article in book form constituted a republication because "the book is, as merely casual scanning establishes, separate and distinct from the original article, and, beyond argument, a republication."). It is settled that there is no republication where materials are "qualitatively identical and published by the original libeler," Gold v. Berkin, 2001 WL 121940 at *5 (S.D.N.Y. 2001), and that republication "occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely a delayed circulation of the original edition." Firth v. State, 98 N.Y.2d 365, 371 (N.Y. 2002) (citation and internal quotation marks omitted).
In the leading case examining the elements that give rise to republication, Rinaldi v. Viking Penguin, Inc., 422 N.Y.S.2d at 556, which involved a soft cover publication of a book previously issued in hard cover, defendant publisher "made extensive revisions on the first two pages of the book," published the book under a different trade name, and sold it at a substantially lower price. The court held that the soft cover book constituted a republication. Rinaldi, 422 N.Y.S.2d at 556 ("By defining the fact pattern here as a republication of the alleged libel, as distinguished from a continuous publication, the critical and controlling factor is that although the books had been printed at one time, when they were released at a subsequent date, almost a year later, they had been substantially modified.") (emphasis added). Other factors may serve as evidence of republication, including whether the "subsequent publication is intended to and actually reaches a new audience," Firth, 98 N.Y.2d 365, 371 (N.Y. 2002), and whether the initial publisher had exclusive control over the publication through the period before republication. Rinaldi, 422 N.Y.S.2d at 556. The trial court in Rinaldi suggested that these factors alone, without outright modification or alteration, might be sufficient to give rise to republication:
Viking's decision to release The Abuse of Power in paperback was a conscious attempt to reach an entirely new market of readers through a different format at a different price. It is further noteworthy that Viking was in exclusive control of all the unissued copies throughout this period. While these factors are significant, they might not, without more, be enough to create a republication. However, Viking, as noted, made extensive revision on the first two pages of the book and this fact alone is sufficient to distinguish this case from Gregoire and other cases cited by defendant.Id. Thus, the holding in Rinaldi ultimately hinged on the fact that the book had been modified and revised and the court indicated that the touchstone element in treating a publication as a republication is the fact of modification or revision, but the Rinaldi court also noted other factors that may be relevant to an inquiry into whether a publication constitutes a republication.
The principle announced in Rinaldi has since been applied to new media and in the specific context of actions arising under the Civil Rights Law. It has, for example, been held that the addition of unrelated information to a Web site does not render the site a republication and refresh the statute of limitations with regard to defamatory material already posted on the site. Firth v. New York, 98 N.Y.2d 365 (N.Y. 2002). And the printing of a plaintiffs likeness on a piece of merchandise has been held subject to the single publication rule, although the statute of limitations runs anew each time plaintiff's image is sold on a different type of merchandise (i.e., if plaintiff's image has appeared on coffee cups, the statue [statute] of limitations for the coffee cups begins to run upon the first sale of a coffee cup, but if the plaintiff's image is also featured on place mats, a new and distinct statute of limitations will begin to run based on the date of sale of the first place mat, as this constitutes a republication of sorts). Cuccioli v. Jekyll Hyde, 150 F. Supp.2d 566, 573 (S.D.N.Y. 2001) ("[T]he statute of limitations runs separately as to each new product distributed with a name or image, the use of which contravenes the statute.").
Notably, although Rinaldi cites favorably to the Restatement (Second) of Torts § 577A(3), Rinaldi at 556, New York's application of the single publication rule to right of privacy actions does appear to diverge from the approach set out in the Restatement, which discusses the application of the single publication rule in defamation cases. Comment d to Subsection (3) of § 577A states:
[R]ebroadcast of the defamation over radio or television or a second run of a motion picture on the same evening . . . [is a publication] that reaches a new group and the repetition justifies a new cause of action. The jurisdiction for this conclusion usually offered is that in these cases the second publication is intended to and does reach a new group.
However, as made clear by Nelson v. Working Class, Inc., supra, New York courts applying the single publication rule to television broadcasts in the context of right of privacy claims have not treated each individual broadcast as a republication and have instead indexed the statute of limitations to the first airing.
Having set out the standard for identifying a subsequent publication as a republication, the question becomes whether plaintiff has introduced into the record sufficient evidence that the subsequent publications of the 1978 commercial must be considered republications bringing about a new starting point for the running of the statute of limitations. Plaintiff contends that subsequent airings of the 1978 commercial constituted republications in two respects. Plaintiff submits that Jordache has not provided sufficient evidence that the 2000 re-release as it aired was an exact replica of the 1978 commercial and hence that there is an issue of disputed material fact as to whether the airings of the 2000 re-release constituted a republication. In addition, plaintiff argues that other airings of Zoll's likeness during the course of the publicity campaign, including the airing of clips and segments of the 1978 commercial on various television programs and the creation of compilation tapes by Jordache and Ruder Finn, constitute a republication. A review of the evidence in the record with regard to both theories of republication follows.
Plaintiff contends that Jordache has not provided sufficient evidence to prove that the 2000 re-release aired the 1978 commercial in its original and identical totality. (Pl.'s Counter-statement of Material Facts at 2 ("There is no proof the 1978 commercial was re-aired in its original format."); Plaintiff's Mem. of Law Opposing Summ. J. at 7-8 ("Defendant claims the 1978 commercial was the exact same as the telecast in 2000-2001. There is no hard evidence to support this!").) However, contrary to these conclusory contentions, Jordache elicited deposition testimony stating that the 2000 re-release and the 1978 commercial are the same. Specifically, Elizabeth Berlinger, President of Jordache, testified that "Jordache made no changes to the 1978 version of the Commercial for its rebroadcast in 2000-2001." (Berlinger Aff. at 2.)
While plaintiff seeks to dismiss this testimony by characterizing it as "deficient", Pl.'s Counter-statement of Material Facts at 3, and "factually barren," (Pl.'s Mem. of Law Opposing Summ. J. at 7-8.), she offers no evidence of her own to support her contention that Jordache has not shown that the 2000 re-release did not in some way alter the 1978 commercial. Plaintiff's contentions that the Berlinger Affidavit is not believable, without more and in the absence of any contrary proof, do not establish that there remains an issue of disputed material fact with regard to whether the 1978 commercial was aired in its original form.
Of note, in this Court's independent review of the record, the Court did discover and analyze invoices, attached as exhibits to the Berlinger Affidavit, provided by various television stations that aired the 2000 re-release. Specifically, Exhibit B to the Berlinger affidavit contains invoices that show how much Jordache paid various broadcasting companies to air the 2000 re-release. On a number of these invoices, the 2000 re-release is either referred to as a revised version of the 1978 Jordache commercial or marked with an "R". The invoice from the American Broadcasting Company lists the commercial as "JORD-1978R". the invoice from the National Broadcasting Company lists the commercial both as "JORD-1978" and as "JORD-1978 REVISED", the invoice from FOX lists the commercial as "JORD-1978", "JORD-1978 (REV)", and "JORD-1978 (REV 2)". Neither party has referenced the terminology used to describe the 2000 re-release in these invoices and no key or index is provided that explains what the descriptor "revised" means in this context. This Court is not in a position to make an independent inquiry into or speculate about the meaning of terminology used in broadcast invoices. The Court merely notes that it did review and take notice of the invoices, but that it was unable to ascribe any probative significance to them.
On this factual record, I conclude as a matter of law that the re-airing of the 1978 commercial as the 2000 re-release did not constitute a republication. Two principles, both discussed supra, require this result. First, Nelson v. Working Class, Inc. squarely held that subsequent airings of the same commercial do not constitute a republication. Second, modification or alteration of the original is the sine qua non of a republication. Although New York cases do afford some significance to the fact that a subsequent publication is the product of a conscious decision to republish by the publisher (and plaintiff has developed facts to show that Jordache made a conscious decision to re-air the 1978 commercial in this case), this, without more, does not rise to the level of republication. While in Rinaldi, the book that was deemed a republication was presented to the public as a new publication, was a paperback edition with a different price, and was published under a different trade name, in the present case the 1978 commercial has not been modified. Upon the facts in the record, Jordache has merely re-aired the 1978 commercial in its original form and the rule set out in Nelson is controlling. The statute of limitations began to run on the first day that the commercial aired in 1978 and plaintiff's present claim is time barred with regard to the rebroadcast of the 1978 commercial as the 2000 re-release.
This Court is attentive to the fact that Nelson involved a single run of one commercial over a contiguous period of months while in the present case, there was a gap of many years between the first contiguous run of the commercial and the second. However, as discussed infra, the time interval between the first and second run of the commercial does not by itself render the second run a republication.
Plaintiff's second theory of republication is premised on actions undertaken by Jordache and Ruder Finn in connection with the publicity campaign to promote the vintage jeans line. Plaintiff argues that "the various uses of the 1978 commercial in segments, in edited form and as part of other promotional acts and events by Jordache constitute republication with a new and current statute of limitation in 2000 and NOT one from 1978. The nature and extent of how and where Zoll's images and likeness and photos were used in 2000-2001 are genuine issues of material facts requiring a trial." (Pl.'s Opposition Mem. of Law at 8-9.) Specifically, plaintiff alleges that Jordache and Ruder Finn created and distributed promotional tapes that incorporated the 1978 commercial and that in some instances excerpts from these tapes were aired on various television programs. Plaintiff argues that these actions amounted to a republication and plaintiff cites to various portions of the deposition of Elizabeth Berlinger and exhibits attached thereto in support of these claims.
The record shows that there were at least two compilation tapes used by Jordache and/or Ruder Finn for publicity purposes in connection with the vintage jean line. The first of these, identified as Plaintiff's 21 and reviewed at Berlinger's deposition, bears a label that reads: "Jordache, Trade Show, February 7, 2001, RT:07:24, Vision Tracks, St. Louis, Missouri." Berlinger testified that she did not know who prepared the tape, but that the tape is a compilation of segments from various television programs discussing Jordache and that the compilation tape was prepared to "give to . . . various [Jordache] sales reps around the country to show the press that [Jordache] been adding regarding our brand." (Berlinger Dep. at 74.)
The Court has viewed Plaintiff's 21. The tape showcases various television program segments and print clips that featured the release of the Jordache vintage jeans line. The segments and clips are presented against a backdrop that displays the Jordache logo in the upper left hand corner and are presented stylistically with an accompanying sound track. in other words, the tape is a polished promotional product. Two of the television segments featured, one from the Early Show on CBS and one from KTTV "Gold", include clips from the 1978 commercial.
A different compilation tape was prepared and distributed by Ruder Finn. Berlinger testified that this tape, identified as Plaintiff's 23 and bearing a label reading "Jordache Originals B-Roll," was prepared by Ruder Finn at the August or early September 2000 Magic Show in Las Vegas, but that the tape was not given out there. (Berlinger Dep. at 90.) This tape includes, in addition to the 1978 commercial, a range of other historical Jordache commercials. (Berlinger Dep. at 14.) It is not entirely clear to whom this tape was sent and for what purposes, although, as discussed infra, it appears likely that this compilation tape was provided by Ruder Finn to various television programs that ran stories covering the launch of the Jordache vintage jeans line. Thus Berlinger testified: "Ruder Finn used it I think in conjunction with their press releases when they were letting people know what they [sic] were doing." (Berlinger Dep. at 91.)
Berlinger also testified that there was a fashion trade show called the Magic Show held in Las Vegas in February of 2001. (Berlinger Depo. at 78.) It is not clear whether the testimony refers to separate shows or what the relationship is between the shows.
The Court has viewed Plaintif's 23. The tape begins with a screen instructing viewers to contact Tony Mangle and Michael Riego, Ruder Finn and Jordache representatives respectively, for further information. The tape then goes on to show contemporary footage of models dancing in Jordache jeans, close up footage of the vintage jean product, footage of certain print advertisements featuring Jordache jeans, footage of excerpts of interviews with Jordache officials, and footage of the 1978 commercial. The various portions of footage are spliced together rather crudely without smooth transitions between different portions. The footage that appears in Plaintiff's 23 recurs as clips shown during many of the aforementioned television programs. This, taken with Berlinger's deposition testimony, suggests that Plaintiff's 23 was likely sent by Ruder Finn to various media outlets as part of its promotional activities.
In addition, in her deposition, Berlinger testified that "Ruder Finn, in conducting their public relations campaign, could use the 1978 commercial as Ruder Finn saw fit in its discretion," that Ruder Finn did "send out various tapes and clippings about Jordache's new line," and that she was generally unaware of many of the specific publicity efforts undertaken by Ruder Finn with regard to the Jordache vintage jean line. (Berlinger Dep. at 12-14, 95, 100.)
In both of the promotional videos described above, the 1978 video was incorporated into a new and different format. Berlinger confirmed in her deposition that Ruder Finn supplied the 1978 commercial to various television programs and that these programs chose to air all or part of the 1978 commercial in conjunction with stories about Jordache and interviews with Jordache officials. As in Rinaldi, the 1978 commercial as incorporated into the promotional compilation tapes was modified, presented in a different manner, and distributed to a new and different audience, and this was the product of a conscious decision by Jordache.
The two Jordache promotional tapes, while including the original 1978 commercial, fall within the New York Court of Appeals' rationale for finding a republication in Rinaldi:
By no means was this to be but a delayed circulation of the original edition. Whatever reediting, repricing, reprinting, restyling, rebinding, redistributing, republicizing, reregistering, reidentifying or recovering took place, these were directed to the new project. We also observe that, to the hard-cover edition's copyright page notation that the book was published by Viking in 1977, the publisher in the paperback version added the unqualified words "Published in Penguin Books 1978". We therefore agree that the publisher's affirmative defense of the State of Limitations was properly stricken as a matter of law.52 N.Y.2d at 435.
It is clear to this Court that the promotional tapes prepared by Jordache and Ruder Finn meet the standard for republication set out in Rinaldi. § I therefore hold that the two promotional tapes are, as a matter of law, republications with regard to which the statute of limitations is indexed to the date of republication and not to the date of the airing of the 1978 commercial. Plaintiff's motion for summary judgment on the ground that the present action is untimely is accordingly denied with regard to these two promotional videos.
3. Newsworthiness.
In its Reply Memorandum in Support of Summary Judgment, defendant asserted that the airing of clips of the 1978 commercial by various televison programs is not actionable under the Civil Rights Law because the statute's provisions do not extend to the broadcast of newsworthy items. (Def.'s Reply Mem. in Support of Summ. J. at 4 n. 2.) Plaintiff then submitted a Rebuttal Memorandum Opposing Summary Judgment arguing that "the uses of parts of the 1978 commercial on TV was NOT news but a part of a concerted effort by defendant using Ruder Finn promoting the defendant's product in the disguise of 'news'," and that there is a disputed issue of material fact as to "whether factually was what Ruder Finn did a clear business promotion OR supplying newsworthy materials for a matter of consumer interest." Id. at 3 (emphasis in original). Defendant responded in a letter brief reiterating that articles of public interest are exempted from the Civil Rights Law.
Defendant submits that plaintiff's claim with regard to the airing of the 1978 commercial during various television programs is time barred because they merely air the 1978 commercial, with regard to which the statute of limitations has run. However, this Court has held that the promotional videos constitute a republication. In addition, there is evidence in the record that the aforementioned television programs aired footage obtained from the promotional videos. As such, defendant's summary judgment motion with regard to the airing of segments of the 1978 commercial on various television programs cannot succeed by arguing that the action with regard to those television programs is time barred.
Defendant also submits, however, that the airing of segments of the 1978 commercial by various news programs in the context of reports on developments in fashion falls within the scope of the newsworthiness exception to the Civil Rights Law. Under the Civil Rights Law, appropriation of an individual's image is actionable only if it is used for "for advertising purposes or for the purposes of trade". N.Y. Civ. Rts. Law § 51. The use of an individual's picture is not considered to be used for advertising or trade purposes if it is used in connection with a newsworthy item. Ali v. Playgirl. Inc., 447 F. Supp. 723 (D.C.N.Y. 1978). Reports on events in the fashion world are considered to be newsworthy items. See also Stephano v. News Group Publications, Inc., 64 N.Y.2d 174, 184 (N.Y. 1984) ("The newsworthiness exception applies not only to reports of political happenings and social trends . . . but also to news stories and articles of consumer interest including developments in the fashion world.").
As set out in Plaintiff's Rebuttal Memorandum Opposing Summary Judgment, plaintiff does not dispute that the programs that aired the 1978 commercial did so in the context of reporting a story involving fashion industry news. This Court has reviewed the exhibits annexed to Berlinger's affidavit that include video tapes of the programs that aired the 1978 commercial and Finds it clear that the stories discussing Jordache that used the 1978 commercial were premised on reporting an item of interest in fashion news. Plaintiff argues, however, that Ruder Finn and Jordache, through their publicity campaign, purposefully encouraged and influenced the decisions by the stations to air the segments in order to increase sales of Jordache jeans and that this implicit profit motive renders the use of the clips a business transaction within the scope of the Civil Rights Law.
This argument fails as a matter of law. In Welch v. Group W. Productions, Inc., 525 N.Y.S.2d 466, 468 (N.Y.Sup. 1987), an old cigarette commercial was aired as part of an awards show honoring classic television commercials. in its analysis of the claims brought by the plaintiff in the case, who appeared in the commercial and sought compensation for its rebroadcast as part of the awards show, the court held that the plaintiff's claim was properly dismissed because the airing of the commercial as part of the awards show constituted a newsworthy event and "[t]hat the television segment was motivated by the desire of the defendants to increase their profits does not convert a newsworthy article or television show into a trade purpose, since it is the content of the material which determines whether it is newsworthy." Id.
Thus, the fact that Jordache and Ruder Finn encouraged various television programs to report on the Jordache jeans vintage line and to use the 1978 commercial in so doing does not render the airing of the commercial by news programs as part of reports on developments in the fashion world actionable under the Civil Rights Law. Plaintiff points to, and this Court does not find, any evidence in the record tending to show that the segments of the 1978 commercial were not aired as news stories relating to developments in fashion. Summary judgment is therefore granted with regard to the airing of all or portions of the 1978 commercial by various news programs. of note, however, this holding extends only to the airing of the news program itself. As discussed above, plaintiff's claim survives with regard to the production and distribution of the promotional videos.
D. Common Law Claims.
Defendant has also moved for summary judgment with regard to plaintiff's common law claims for unjust enrichment and trespass. in her complaint, plaintiff alleges that Jordache "has made money off of plaintiff's name, image and likeness and copies thereof without paying plaintiff for such uses and should be made to share such monies with plaintiff," and that Jordache "trespassed upon . . . plaintiff's sole and exclusive property, namely her image, likeness and photo and copies thereof for profit." (Amended Compl. at 13, 16.) Both the common law unjust enrichment claim and the common law trespass claim arise out of defendant's alleged improper use of plaintiff's likeness.
Plaintiff initially brought a claim for common law conversion as well, but expressly dropped this claim in her amended complaint.
Although the common law unjust enrichment and trespass claims are presented independently of the statutory privacy claim, numerous cases under New York law have declined to recognize an independent, common law cause of action in right to privacy or publicity for unauthorized use of an image or likeness and have instead treated common law claims premised on the unauthorized use ofa plaintiff's name, image or likeness as privacy claims that must proceed under the statutory cause of action created by §§ 50 and 51 of the Civil Rights Law. E.g., Pirone v. MacMillan, Inc., 894 F.2d 579, 586 (2d Cir. 1990) ("New York courts have indicated clearly that the Civil Rights Law preempts any common law right of publicity action . . . ."); Grodin v. Cable, 664 N.Y.S.2d 276 (N.Y.App.Div. 1997) (holding that "it was error not to dismiss plaintiff's causes of action for negligence and unjust enrichment, there being no common-law right of privacy in New York" where the plaintiff brought an action to recover damages for the unauthorized reuse of his image and voice in a television commercial); Maxwell v. N.W. Ayer, Inc., 605 N.Y.S.2d 174, 176-77 (N.Y.Sup.Ct. 1993) ("[T]he courts have consistently dismissed common law claims for misappropriation, conversion, unfair competition and unjust enrichment based on an unauthorized use of an attribute of identity . . . . [A] plaintiff does not have a cause of action for . . . unjust enrichment based on the unauthorized use of her name. The plaintiff's sole remedy in such a situation is an action under §§ 50 and 51 of the Civil Rights Law and the alleged unjust enrichment of the defendant is part of that cause of action."). As set out in Maxwell v. Ayer, the New York Civil Rights Law was enacted expressly because there was no common law recognition of claims for violations of the right of privacy:
Because the right to protect one s personality was unknown in the common law, legislative enactments have been necessary to create remedies for unauthorized use of an individual's name or image. As a result, the sole remedy for a plaintiff who claims that his or her likeness or name has been used without his or her consent is an action pursuant to §§ 50 and 51 of the Civil Rights Law.605 N.Y.S.2d at 176.
In this case, plaintiff does not articulate a common law privacy or publicity claim and instead brings common law claims for unjust enrichment and trespass. This does not, however, save plaintiff from the rule precluding common law right to privacy and right to publicity actions because her claim is, in substance, based on the unauthorized use of her image for commercial purposes. Where a claim arises from unauthorized use of an image or likeness, plaintiffs have not been allowed to advance common law claims in addition to their statutory claims merely by recasting the statutory claim as a common law claim. New York courts have refused to recognize efforts to present statutory privacy claims as common law claims where the claim is based on alleged unauthorized use of a plaintiff's image or likeness and have refused to exalt form over substance when a plaintiff attempts to do so. Preston v. Martin Bregman Productions, Inc., 765 F. Supp. 116, 120 (S.D.N.Y. 1991) ("Although plaintiff's claim is called one for conversion, it is in law a privacy claim, since it is based on the commercial use of plaintiff's image without her consent. It does not exist, other than under the Civil Rights Law."). In Preston v. Martin Bregman Productions, the plaintiff was videotaped without her knowledge and her image appeared briefly in the opening credits of a movie. The court held that the plaintiff could not style her claim as one for conversion where it was substantively a right of privacy claim involving commercialization of her image. Id. Thus, plaintiff's only potential recourse was under the Civil Rights Law.
A number of cases have squarely held that common law unjust enrichment claims for unauthorized use of an image or likeness are subsumed by the Civil Rights Law. Allen v. Men's World Outlet, Inc., 679 F. Supp. 360, 365 (S.D.N.Y. 1988) ("The New York Court of Appeals has explicitly held . . . that the Civil Rights Law preempts any such common law cause of action . . . . [T]he Stephano court held . . . that the Civil Rights Law preempts common law causes of action . . . .") (dismissing common law unjust enrichment claim for unauthorized use of likeness upon a finding that it is subsumed by the statutory cause of action); Hampton v. Guare, 600 N.Y.S.2d 57, 58-9 (N.Y.App.Div. 1993) (upholding [AS court's determination that the Civil Rights Law preempted the plaintiff's common law unjust enrichment claim where "the plaintiff has no property interest in his image, portrait or personality outside the protections granted by the Civil Rights Law"). Although this Court's independent review has not revealed any cases that have considered a trespass action based on the unauthorized use of an image or likeness, it seems clear that common law trespass claims are likewise subsumed by the Civil Rights Law. Numerous New York cases have held that an action for conversion ofa plaintiff's image or likeness cannot stand, reasoning that where a plaintiff's property right in his image or likeness is created by statute, the exclusive remedy is statutory. E.g., Hampton v. Guare, 195 A.D.2d 366-67 (Sup.Ct. App. Div. 1993). Similarly, a necessary element of a trespass claim is that the plaintiff must establish a property right that has been trespassed against. Tornheim v. Federal Home Loan Mortgage Corp., 988 F. Supp. 279, 281 (S.D.N.Y. 1997) citing Annutto v. Town of Herkimer, 56 Misc.2d 186, 189, 288 N.Y.S.2d 79, 84 (N.Y.Sup.Ct. 1968) (citing 87 C.J.S. Trespass § 4) ("Trespass is the interference with a person's right to possession of real property either by an unlawful act or by a lawful act performed in an unlawful manner."). New York does not recognize a common law property right in one's image or likeness. Hampton v. Guare, 195 A.D.2d 366-67 (Sup.Ct. App. Div. 1993) ("[T]he preemptive effect of the Civil Rights Law is fatal to the . . . causes of action . . . alleging common-law conversion, common-law tort and unjust enrichment where, as here, the plaintiff has no property interest in his image, portrait, or personality outside the protections granted by the Civil Rights Law."); Stephano v. News Group Publications, Inc, 64 N.Y.2d 174, 183 (N.Y. 1984). The property right exists only pursuant to the statutory scheme created by the Civil Rights Law. Thus, plaintiff has failed to establish an essential element of a trespass claim, namely a common law property right in her image or likeness.
Plaintiff relies primarily on a reference made by the Second Circuit inOliveira v. Frito-Lay, Inc., 251 F.3d 56 (2d Cir. 2000), for the proposition that common law, privacy-based claims may be raised in addition to statutory claims under the New York Civil Rights Law. InOliveira, the Second Circuit observed in a footnote discussing its decision not to assert supplemental jurisdiction that "[i]ssues of state law raised by the parties' contentions that are not directly addressed by New York decisional authority include whether § 51 provides the exclusive remedy for unauthorized use of a person's voice, displacing claims for unjust enrichment." Id. at 64 n. 2.
Several factors limit the import of this statement with regard to the present case. The plaintiff in Oliveira brought an unjust enrichment claim on the ground that the defendant had used a song that she recorded without authorization. The lower court dismissed the state law claims, including the statutory Civil Rights Law claims and the unjust enrichment claim, for failure to state a claim based on the trial court's understanding that plaintiff conceded in her complaint that she never had any proprietary interest in the recording. The Second Circuit overturned the lower court's dismissal of the state law claims (including the unjust enrichment claim) on the ground that the lower court had improperly interpreted the facts as set out in the complaint. Thus, the Oliveira case involved voice recording, not an image or likeness, and the statement quoted above is dicta found in a footnote explaining the court's decision not to exercise supplemental jurisdiction. This Court does not find that the brief reference made the Second Circuit to this issue as dicta in a footnote in the course of an analysis of supplemental jurisdiction is controlling.
For the foregoing reasons, summary judgment is hereby granted dismissing plaintiff's common law unjust enrichment and trespass claims. These claims are not viable as a matter of substantive law. Accordingly, I need not reach the defendant's affirmative defenses based on laches and estoppel.
IV. CONCLUSION
For the foregoing reasons, the Court reaches the following conclusions:
1. Defendant's motion for summary judgment on the basis of the statute of limitations with regard to the 2000 re-release is granted.
2. Defendant's motion for summary judgment on the basis of the statute of limitations with regard to the promotional tapes used in the publicity campaign is denied because the Court holds as a matter of law that the use of the 1978 commercial in those tapes constitutes a republication.
3. Defendant's motion for summary judgment with regard to the airing of segments of the 1978 commercial on various news programs is granted.
4. Defendant's motion for summary judgment with regard to the common law claims of trespass and unjust enrichment is granted. Counsel for the parties are directed to attend a status conference in Room 17C, 500 Pearl Street, at 12:30 p.m. on January 8, 2003.
It is SO ORDERED.