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ANABAS EXPORT v. ALPER INDUS.

March 11, 1985

ANABAS EXPORT LTD., Plaintiff,
v.
ALPER INDUSTRIES INC., Defendant



The opinion of the court was delivered by: POLLACK

DECISION AND OPINION

POLLACK, Senior District Judge

 Defendant, Alper Industries, Inc. ("Alper"), moves for summary judgment pursuant to Rule 56, Fed. R. Civ. P., on the ground that the contract sued on is unenforceable because it violates New York Civil Rights Law (N.Y.C.R.L.) § 50. Anabas has cross-moved for a declaration that the contract is legal and enforceable. For the reasons set forth below, defendant's motion will be granted and plaintiff's motion will be denied.

 Anabas sold and delivered stickers, which feature the portrait of Michael Jackson, to Alper for resale and distribution by Alper in the course of trade. Anabas sues to recover the agreed price therefor. Alper, under a license agreement with Anabas, also manufactured similar stickers for purposes of trade, and Anabas claims the royalties provided under the agreement from Alper.

 Michael Jackson's written permission to feature his portrait on the stickers was not obtained by Anabas; relying on N.Y.C.R.L. § 50, which makes use of the portrait without permission for purposes of trade a misdemeanor, Alper claims that the sale and license agreement are void and unenforceable. Under that statute,

 
"[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 . . . is guilty of a misdemeanor."

 It is unlawful for a person to sell items portraying the picture of a person without his consent. See Rosemont Enterprises, Inc. v. Choppy Productions, Inc., 74 Misc.2d 1003, 347 N.Y.S.2d 83 (N.Y. Sup. Ct. 1972). The unlawfulness of the sale and license agreement are manifest since defendant's affidavit states, and plaintiff has not disputed, that Michael Jackson never gave his written consent for the use of his portrait on the stickers.

 Generally, a court will not enforce a contract to commit an unlawful act. "[A] party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show his illegal purpose." Stone v. Freeman, 298 N.Y. 268, 274, 82 N.E.2d 571 (N.Y. 1948). Specifically, a court will not enforce a contract to commit a tort. See Attridge v. Pembroke, 235 A.D. 101, 256 N.Y.S. 257 (N.Y. App. Div. 1932); 14 Williston on Contracts § 1628, p. 3 (3d ed. 1972); Restatement (Second) of Contracts § 192; 17 Am. Jur. 2d Contracts § 182 (1964); 77 C.J.S. Sales § 194 (1952).

 Under a narrow exception, courts will enforce some contracts made in violation of revenue and licensing statutes. In Rosasco Creameries, Inc. v. Cohen, 276 N.Y. 274, 11 N.E.2d 908 (N.Y. 1937), the court permitted a milk dealer to recover the price of milk sold to defendant, even though the dealer had failed to register in violation of a statute. The court said,

 
"Nothing in this statute reveals an implied intent to deprive unlicensed dealers of their right to recover the reasonable value of the milk sold by them, and where the wrong committed is malum prohibitum, and does not endanger health or morals, such additional punishment should not be imposed unless the legislative intent is expressed or appears by clear indication."

 Rosasco, 276 N.Y. at 280.

 The Rosasco exception has no applicability to this case, for it is limited primarily to revenue and licensing statutes. See East Coast Moving & Storage, Inc. v. Flappin, 78 Misc.2d 140, 355 N.Y.S.2d 525, 531 (N.Y. Civ. Ct. 1974). See also Restatement (Second) of Contracts § 181.

 N.Y.C.R.L. § 50, unlike a mere revenue or licensing statute, was enacted to protect the moral sensibilities of the community. Section 50 was

 
"a recognition by the law-making power of the very general sentiment which prevailed throughout the community against permitting advertisers to promote the sale of their wares by this method, regardless of the wishes of the persons thereby affected. There was a natural and widespread feeling that such use of their names and portraits in ...

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