The opinion of the court was delivered by: Stanton, District Judge.
Plaintiff Pamela Preston asserts that she was shown in the
motion picture "Sea of Love" without her consent, in violation
of her rights under New York law. Defendant Martin Bregman
Productions, Inc. is a producer and defendant MCA-Universal
City Studios, Inc. is the owner and a producer of that motion
picture. They move pursuant to Fed.R.Civ.P. 56(b) for summary
judgment dismissing the complaint. The court has viewed "Sea of
Love" in connection with this motion.
"Sea of Love" is a murder mystery set in New York City. In
it, police seek an unidentified woman who appears to have been
selecting her murder victims from personal advertisements in a
newspaper. A police officer investigating the case becomes
romantically involved with a suspect who responded to an
advertisement placed by the police in an effort to catch the
Plaintiff contends that she appears in a scene shown during
the picture's opening credits. That "title sequence" presents
a series of night scenes in New York City showing (in order of
appearance) the Brooklyn Bridge, an aerial view of Manhattan,
Times Square, a newsstand, a hot dog stand, an X-rated movie
theater, two prostitutes (of which plaintiff says she is one)
soliciting along a row of cars, a restaurant, and finally
Although defendants dispute whether the woman depicted in the
relevant segment is plaintiff, her identity is conceded for the
purpose of this motion. That portion of the film was taken from
a moving vehicle in low light, and shows a woman "scantily
dressed, showing her full face and entire body as she walks on
the public street in the City of New York." (Complaint ¶ 7). It
lasts approximately nine seconds and the face of the woman is
visible for about 4 1/2 seconds. (Joint Pretrial Order ("JPO")
Agreed Finding ¶ 7).
Plaintiff contends that "Sea of Love" "depicts aspects of
life in New York City which includes [sic] promiscuous sex,
loneliness, deception and their interaction in the lives of the
characters." (JPO Plaintiff's Proposed Finding ¶ 4(b)). She
asserts that the title sequence establishes the theme for the
motion picture. (Id. ¶ 4(a)).
Neither plaintiff nor anything regarding prostitution appears
later in the film.
Plaintiff alleges that defendants intentionally and
surreptitiously filmed her, causing her mental anguish and
emotional distress. (Id. ¶ 3). She asserts claims under New
York's Civil Rights Law, as well as for conversion and
intentional infliction of emotional distress.
Under Fed.R.Civ.P. 56, 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."
"Summary judgment is appropriate when, after drawing all
reasonable inferences in favor of the party against whom
summary judgment is sought, no reasonable trier of fact could
find in favor of the nonmoving party." Lund's, Inc. v. Chemical
Bank, 870 F.2d 840, 844 (2d Cir. 1989).
If a motion for summary judgment is properly supported, "the
adverse party `must set forth specific facts showing that there
is a genuine issue for trial.'" Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202
(1986) (quoting Fed.R.Civ.P. 56(e)). The materiality of facts
in this diversity ...