Costello, Shea & Gaffney (Steven E. Garry of counsel), for defendant.
Greenberg & Reicher (Edward Greenberg of counsel), for plaintiffs.
Martin Schoenfeld, J.
In this action plaintiffs Alina Hernandez and Susee Kilbanks sued defendant Wyeth-Ayerst Laboratories for using plaintiffs' photographs on marketing materials for a line of prenatal/postpartum vitamins beyond the one-year period set forth in, and in a manner not authorized by, the " Model Vouchers" agreed to by plaintiffs' and defendant's agents. After a two-week trial, a jury awarded each plaintiff $12,000 in compensatory damages and $100,000 in punitive damages.
Defendant now moves (1), pursuant to CPLR 2221, to reargue its posttrial motions and, upon reargument, pursuant to CPLR 4401, for judgment in its favor, and (2), pursuant to CPLR 4404, for judgment notwithstanding the verdict or for a new trial. For the reasons set forth herein, the motion is denied except to the extent that defendant is granted a new trial solely on the issue of punitive damages unless each plaintiff agrees to accept $80,000 therefor.
On or about August 13, 1993 the McDonald/Richards modeling agency, on behalf of plaintiffs, and photographer Fred Kenner, on behalf of defendant, contracted, as set forth in the Model Vouchers, for defendant to use plaintiffs' modeling services, embodied in photographs, for the vitamin brochures and packaging for one year. The Model Vouchers were signed between August 13 and August 17, 1993, inclusive. Defendant
paid each plaintiff $1,000 plus $100 in expenses. On August 17 Kenner took the photographs. That same day, plaintiffs signed " Consent and Release" forms for the photographs that were unlimited in duration and covered " advertising" for the vitamins. Plaintiff Hernandez handwrote " Per Terms of Model's Voucher" in her Consent and Release form.
Several days after the photo shoot, Kenner reinvoiced defendant with an invoice that, at defendant's request, had Kenner indemnifying defendant against a broad array of claims, including the type asserted herein.
According to testimony plaintiffs introduced at trial, defendant used plaintiffs' images during 1994 through 1997, well beyond the one-year limit of the Model Vouchers. By letter dated March 31, 1997, plaintiffs, by counsel, wrote defendant (1) that plaintiffs had become aware that defendant was continuing to use plaintiffs' photographs, exceeding both the time and usage limits (the latter by using plaintiffs' images on booklets and trade advertisements, etc.) of the Model Vouchers, and (2) that plaintiffs demanded that defendant stop such use.
Sometime that April, defendant used look-alike models to rephotograph the marketing campaign. In its moving papers, defendant states that there is no evidence that defendant continued to use the subject photographs in defendant's marketing campaign after being notified of plaintiffs' unauthorized use claim. However, according to plaintiffs (answering affirmation ¶ 22), defendant's employee testified that defendant " continued to print labels and distribute product featuring the plaintiffs' images through at least July of 1997." Defendant's reply papers apparently do not dispute this statement. Defendant notes (moving ...