Opinion

Brinkley v. Casablancas

  • 80 A.D.2d 428
  • 438 N.Y.S.2d 1004
  • 7 Media L. Rep. (BNA) 1457
  • 212 U.S.P.Q. (BNA) 783
  • 1981 N.Y. App. Div. LEXIS 10111
Court
Appellate Division of the Supreme Court of the State of New York
Filed
May 14, 1981
Status
Published
Author
Kupferman
On the bench
Kupferman, Sullivan
Cited by
46 cases
Authority
More cited than 1.2%

holding that an unauthorized distribution of a model's name or likeness was actionable

How later courts described this case

  • holding that an unauthorized distribution of a model's name or likeness was actionable
  • model who consented to be photographed for certain posters and to filming of modeling session for broadcasts on cable television held to possess cause for action for violation of her right of publicity when additional unauthorized posters were made from photographs taken at the modeling session
  • “[W]e believe that the., so-called right of publicity is subsumed in sections 50 and 51 of the Civil Rights Law to the extent that even a public figure has a privacy interest which finds recognition in the statute and for violation of which a remedy of monetary redress is provided.”
  • “The damages that flow from [a violation of §§ 50-51] should be compensable whether the injury is to one’s feelings or to his ‘property’ interest. Both injuries are caused by the same wrong and should be redressed by the same cause of action.”

Written by the judges who cited it.

Distinguished

  • Distinguished by Kamakazi Music Corp. v. Robbins Music Corp., 534 F. Supp. 69 (1982)

    80 A.D.2d 428, 438 N.Y.S.2d 1004, upon which Manilow in part, relies is distinguishable on its facts.
    District Court, S.D. New YorkJan 29, 1982Read it

The opinion

Kupferman, J. (concurring).

The opinion by my colleague, Mr. Justice Sullivan, is an excellent analysis, and I have a reservation only with respect to the concluding portion thereof, which has to do with the question of the liability of the distributors Spencer and Oomi. The second cause of action for damages against Spencer is dismissed *445 (and summary judgment against Oomi denied) because of their lack of knowledge as to the unauthorized use. (Cf. Hill, Defamation and Privacy under the First Amendment, 76 Col L Rev 1205, 1279; Namath v Sports Illustrated, 48 AD2d 487, 488 , affd on opn at the App Div 39 NY2d 897 .)

In view of the de minimus distribution by those two defendants, I believe that the damage claim should be dismissed. However, I do not think that we need reach the conclusion that a merchandiser with a substantial amount of unauthorized material invading privacy should or could be relieved simply because of lack of knowledge. There may well be a duty to inquire.

Murphy, P. J., Markewich and Lynch, JJ., concur with Sullivan, J.; Kupferman, J., concurs in a separate opinion.

Order, Supreme Court, New York County, entered on January 5, 1981, modified, on the law, without costs and without disbursements, to deny defendant Galaxy’s motion and to grant defendant Spencer’s motion only as to the second cause of action, to grant plaintiff summary judgment on the first cause of action against defendants Galaxy, Spencer and Oomi and partial summary judgment on liability only on the second cause of action against Galaxy and, except as thus modified, affirmed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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