The opinion
Kupferman, J. (dissenting).
Were it not for the determination in Welch v Mr. Christmas ( 57 NY2d 143 ), I would agree to affirm.
The plaintiff here, an actor, performed in a television commercial. The defendants are the producer and those using the commercial to advertise their products. The plaintiff is a member of the American Federation of Television and Radio Artists (AFTRA), which union entered into a collective bargaining agreement with the producers in the entertainment industry. This agreement has a broad arbitration clause covering all disputes and controversies. The users of the commercials are admittedly not signatories to this agreement.
In order for the commercial to be used beyond the first 13-week "cycle”, a holding fee had to be paid. There is a dispute as to the timeliness of the payment of the holding fee. If it was untimely, then the commercial could not further be used.
The plaintiff sued for, among other things, violation of his right of privacy, alleging use after the expiration of the right so to do. The defendants moved for an order staying the proceeding and for a direction that the plaintiff arbitrate.
In the Welch case (supra), the dissent in the Appellate Division ( 85 AD2d 74, 79 ), had specifically taken the position that the matter was a dispute as to a breach of contract and that, therefore, right of privacy under Civil Rights Law § 51 did not apply. This was directly rejected in the unanimous opinion of the Court of Appeals.
Applying the Welch rule to this matter, the defense that the contract arbitration provision would override the civil rights claim cannot be sustained. Moreover, in an arbitration, there cannot be exemplary damages. (Garrity v Lyle Stuart, Inc., 40 NY2d 354 .) The Welch case permitted punitive damages, and if there is a violation of the right of privacy, it could here apply.