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May 13, 1983

BROOKE SHIELDS, An Infant, By TERI SHIELDS, Her Mother, Having Legal Custody, Plaintiffs,

The opinion of the court was delivered by: LEVAL



 Plaintiff Brooke Shields is a well known 17-year-old model and movie star. She seeks a preliminary injunction against the marketing or public display of certain photographs taken of her in the nude by defendant Gary Gross. Gross has licensed defendant Art Trends to make and sell artistic prints based on the photographs. Shields claims entitlement to relief under a right of privacy which she contends is guaranteed by the Constitution. I find for two independent reasons that the motion for preliminary injunction must be denied. First is want of equity. Plaintiff's counsel has conducted this litigation and timed this application for preliminary injunctive relief in a manner designed to impose unnecessary unfairness on the defendants. Plaintiff's timing strategy is an abuse of the equitable remedy. Second, plaintiff has failed to satisfy the conventional test for entitlement to preliminary injunctive relief.

 I. Background

 In 1975, when plaintiff Brooke Shields was 10 years old, she and her mother, plaintiff Teri Shields, reached an arrangement with Gross, a commercial photographer, for these photographs to be taken. Brooke Shields was paid $450 for the photo sessions by Playboy Press, and her mother signed a release giving Gross unlimited rights to use or publish the photographs. Some of the photos, those in controversy, were posed naked.

 These photographs have been displayed or published in a variety of ways. Two in particular, which plaintiff characterizes as the most revealing, appeared in 1976 in a Playboy Press publication entitled Sugar & Spice and, in larger-than-life-size enlargements, in the windows of a fashionable boutique on Fifth Avenue in New York. *fn1" More recently, some of the photographs have appeared in at least five publications, some of them decidedly disreputable.

 For the last two years plaintiff has litigated in the New York state courts to prevent the distribution of these photographs. Her suit was based on two legal theories: first, she contended that the consent given at the modelling session was either invalid or to be narrowly construed. This contention was rejected by the trial court, and the ruling was affirmed on appeal. Second, she contended that she is entitled under the common law of New York to disaffirm her mother's consent. This too was rejected at trial; the Appellante Division reversed and enjoined Gross from using the photographs "for purposes of advertising or trade." Shields v. Gross, 88 A.D. 2d 846, 451 N.Y.S. 2d 419 (1st Dep't 1982). The Court of Appeals, however, vacated the Appellate Division's injunction, 58 N.Y. 2d 338, 461 N.Y.S.2d 254, 448 N.E.2d 108 (No. 113, March 29, 1983), ruling against Shields. Plaintiff asserted no federal claims in the New York courts.

 Throughout the pendency of that action, the New York courts granted plaintiff interim injunctions forbidding Gross from displaying the photos. The last of these expired when the Court of Appeals denied her motion for reargument late on Friday, April 19, 1983.

 On Monday morning, May 2, 1983, the first business day after the expiration of the state injunction, plaintiff commenced this action by filing a complaint which asserts that the distribution of the photographs would infringe plaintiff's federal constitutional right of privacy.

 Simultaneously with the filing of the complaint, and without giving notice to the defendants, plaintiff moved for a preliminary injunction and a temporary restraining order. Defendants somehow learned of the application and telephoned the clerk requesting that no action be taken without their being heard. They appeared in court and agreed voluntarily to refrain from distributing or displaying the photos for the brief time needed to complete the submissions on the preliminary injunction motion. All parties have now completed their submissions, and the preliminary injunction motion is ripe for decision.


 A. Want of Equity

 For two years, although litigating a losing cause in the state courts, plaintiff has successfully prevailed over the defendant by an unbroken series of interim injunctions. Now after running that course to its conclusion, plaintiff seeks to begin a new round of interim injunctions effectively securing complete relief for as long as the courts are willing to maintain such relief pending final adjudication. Defendant meanwhile runs the risk that by the time plaintiff runs out of courts and legal theories and exhausts the temporary restraining orders, preliminary injunctions, stays pending appeal, reconsideration and certiorari, the market for defendant's pictures will have disappeared.

 The point here underlined is that plaintiff could have sought adjudication of her federal constitutional rights at any time during the pendency of the state interim injunctions so that decision of these questions would not have called for a new round ...

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