United States District Court, Southern District of New York
April 22, 2003
MARIKA ZOLL, PLAINTIFF, AGAINST JORDACHE ENTERPRISES INC. D/B/A JORDACHE, DEFENDANT.
The opinion of the court was delivered by: Charles S. Haight, Jr., Senior United States District Judge
MEMORANDUM OPINION AND ORDER
In response to this Court's Opinion in Zoll v. Jordache, No. 01 Civ. 1339, 2002 WL 31873461 (S.D.N.Y. Dec. 24, 2002) [hereinafter "Zoll"] (familiarity with which is assumed for purposes of this Opinion), plaintiff and defendant have filed cross-motions for reconsideration under Local Rule 6.3. By way of brief review, plaintiff in this action is a model who contends that defendant Jordache Enterprises, a clothing manufacturing company, used her image without her authorization to advertise Jordache jeans. Plaintiff participated in a video shoot while wearing defendant's jeans in 1978; footage from this video shoot was aired nationwide as a television commercial for Jordache jeans from 1978 to 1979 (the "1978 commercial"). Defendant subsequently re-aired the 1978 commercial to advertise a vintage jeans line in 2000 (the "2000 re-release"), incorporated portions of the 1978 commercial into compilation tapes that were used as part of a publicity campaign, and provided the 1978 commercial to various television programs that aired portions of it in connection with stories relating to the vintage jeans line.
Plaintiff seeks compensation for these uses of her image. Defendant moved for summary judgment and in Zoll, I held that: 1) plaintiff's claims regarding the 2000 re-release were time barred because the 2000 re-release is not a republication; 2) plaintiff's claims with regard to the compilation tapes (Plaintiff's 21 and Plaintiff's 23*fn1) were not time barred because these tapes constitute republications; 3) plaintiff's claims with regard to the airing of segments of the 1978 commercial on various news programs were dismissed because this use of the 1978 commercial falls within the newsworthiness exception; and 4) plaintiff's claims arising under common law trespass and unjust enrichment were dismissed.
In their cross-motions, plaintiff and defendant seek reconsideration of each holding adverse to them, except for that involving plaintiff's now-dismissed common law claims. Plaintiff moves for reconsideration on the grounds that 1) the 2000 re-release constitutes a republication and plaintiff's claims with regard to such are, therefore, not time barred; and 2) the newsworthiness exception cannot be invoked to bar plaintiff's claims as regards the airing of the 1978 commercial on various television news programs. Defendant moves for reconsideration on three grounds: 1) Plaintiff's 23 is not a republication; 2) plaintiff's image was not used without her written consent because plaintiff concedes that she signed a release allowing the use of her image for in-house purposes and Plaintiff's 21 was used only for in-house purposes; and 3) neither promotional tape was used for an advertising or trade purpose.
Local Rule 6.3 directs that the parties provide the Court with a "memorandum setting forth concisely the matters of or controlling decisions which counsel believes the court has overlooked." Both parties have submitted detailed memoranda in support of their respective motions for reconsideration and I now turn to evaluate these.
I. STANDARD OF REVIEW
The standard for granting a motion to reconsider under Local Rule 6.3 "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transportation, Inc., 70 F.3d 255, 256 (2d Cir. 1995). Reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided." Id. Thus, the rule "is to be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered by the court." Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp.2d 390, 391-2 (S.D.N.Y. 2000). Nor may the moving party use such a motion to "advance new facts, issues or arguments not previously presented to the court." Bank Leumi Trust Co. of New York v. Istim, Inc., 902 F. Supp. 46, 48 (S.D.N.Y. 1995). These limitations are designed to ensure finality and prevent the rule from becoming a vehicle by which a losing party may examine a decision "and then plug the gaps of the lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988).
A. Plaintiff's Motion for Reconsideration.
Plaintiff moves for reconsideration on two grounds. Plaintiff argues that the 2000 re-release constitutes a republication under the standard set forth in Rinaldi v. Viking Penguin, Inc., 422 N.Y.S.2d 552 (N.Y.Sup.Ct. 1979), aff'd as modified, 425 N.Y.S.2d 101 (N.Y.App.Div. 1980), aff'd, 52 N.Y.2d 422 (N.Y. 1981), and that the airing of segments of the 1978 commercial on various television programs does not fall within the newsworthiness exception to §§ 50, 51 of the Civil Rights Law. In accordance with the standard set out above, I review plaintiff's motion to determine whether plaintiff has identified controlling issues of fact or law that were previously overlooked and would change the Court's decision.
1. Analysis of the 2000 re-release under the standard for republication.
Plaintiff argues that the 2000 re-release constitutes a republication because the jeans product that the 2000 re-release was used to sell was a new, updated product and because defendant "made very conscious decisions" to re-release the 1978 commercial for marketing purposes. (Pl.'s Am. Mot. at 2.) Plaintiff directs the Court to portions of the record that evidence that the jeans sold by Jordache in 2000 that were the subject of its marketing campaign were different from the jeans sold in 1978. (Pl.'s Am. Mot. at 3.) Plaintiff argues that because the 2000 re-release was aired to sell a different jeans product, the 2000 re-release is a republication.
It is true that both Rinaldi, 422 N.Y.S.2d at 556, and Firth v. State, 98 N.Y.2d 365 (N.Y. 2002), identify the fact that a subsequent publication is designed to reach a new audience or market as a factor weighing in favor of a finding that a subsequent publication constitutes a republication. Rinaldi, 422 N.Y.S.2d at 556 ("Viking's decision to release The Abuse of Power in paperback was a conscious attempt to reach an entirely new market of readers through a different format at a different price."); Firth, 98 N.Y.2d at 371 ("The justification for this exception to the single publication rule is that the subsequent publication is intended to and actually reaches a new audience.") (citation omitted). Thus, to the extent that the fact that the 1978 commercial was re-aired to promote a new jeans product provides support for the contention that it was re-aired to reach a new market, it is relevant to the inquiry into whether the 2000 re-release constitutes a republication. However, the fact that a subsequent publication is the product of a conscious decision to republish and is intended to reach a new audience is but one of a number of factors considered in determining whether a subsequent publication constitutes a republication. Rinaldi, 422 N.Y.S.2d at 556 ("While these factors [the publication was aimed at a new audience and in the exclusive control of the original publisher] are significant, they might not, without more, be enough to create a republication."). The Court already considered this issue (whether the 2000 re-release was a republication merely because it was aimed at a new audience) in its initial decision and rejected it, finding instead that more was needed, such as some type of modification to the original publication, to rise to the level of republication. Zoll, 2002 WL 31873461 at * 11 ("Although New York cases do afford some significance to the fact that a subsequent publication is the product of a conscious decision to republish by the publisher (and plaintiff has developed facts to show that Jordache made a conscious decision to re-air the 1978 commercial in this case), this, without more, does not rise to the level of republication.") Plaintiff's own phraseology in its Amended Motion for Reconsideration confirms that it is rearguing, as opposed to calling the court's attention to something overlooked — "it is again called to the attention of the Court that the various uses of the images of plaintiff . . . constitute a `republication' per Rinaldi." (Pl.'s Mot. at 1.) Plaintiff has not, therefore, drawn the Court's attention to an issue of controlling fact that was previously overlooked with regard to its argument that the 2000 re-release should have been held to constitute a republication. Additionally, a party may not use a motion for reconsideration "solely to relitigate an issue already decided." Shrader, 70 F.3d at 256. I therefore find unpersuasive plaintiff's suggestion that the facts in the record showing that the jeans sold in 1978 differed from those sold in 2000 mandates a different outcome on the issue of republication with regard to the 2000 re-release.
I now turn to whether plaintiff has raised a previously overlooked issue of controlling law in support of its argument that the 2000 re-release constitutes a republication. In its Amended Motion for Reconsideration, plaintiff cites to two cases that the Court cited and discussed in Zoll, Firth v. State, supra, and Cuccioli v. Jekyll & Hyde, 150 F. Supp.2d 566 (S.D.N.Y. 2001), and argues for a different reading of these cases than that previously adopted by the Court. Because the Court has already reviewed and discussed these cases, see Zoll at *10, I find no need to do so again here. As discussed above, a motion for reconsideration is not a forum for parties to offer "repetitive arguments on issues that have been thoroughly considered by the court." Range Road Music, Inc., 90 F. Supp.2d at 391-2. Plaintiff's attempt to reargue the scope of the holdings in these cases does not support its motion for reconsideration because it does not involve controlling law that was previously overlooked — far from being overlooked, these cases were incorporated by the Court into its decision.
Plaintiff also cites to a number of sources that were not previously cited in the parties' submissions relating to the underlying motion. Although it is not entirely clear which of these are cited in support of plaintiff's contention that the 2000 re-release constitutes a republication and which are cited in support of its argument relating to the newsworthiness exception, it appears from my review that plaintiff cites to the following authorities in support of its republication argument: Sack on Defamation (3d ed.), Foretich v. Glamour, 753 F. Supp. 955 (D.D.C. 1990), and Epic Metals Corp. v. Condec, Inc., 867 F. Supp. 1009 (M.D.Fla. 1994). Plaintiff therefore cites only to secondary sources and cases arising outside of this jurisdiction that do not apply New York law. Foretich, 753 F. Supp. at 960 (District Court for the District of Columbia applying District of Columbia law to a claim in defamation); Epic Metals, 867 F. Supp. at 1015-16 (District Court for the Middle District of Florida applying Florida's four year statute of limitations to a claim arising under Florida Statute § 540.08). As such, none of these authorities can be considered controlling; as discussed above, the proper subject of a motion for reconsideration is to draw the Court's attention to controlling law that was previously overlooked.
Farther, none of the sources cited to by plaintiff persuades me that a different result is warranted in this case. The rule for which plaintiff cites Sack on Defamation (and the rule that the cases that plaintiff cites rely upon, see infra) is in substance the same as the rule regarding republication set forth in the Restatement (Second) of Torts § 577A(3) (comment d), which states that:
[R]ebroadcast of the defamation over radio or
television or a second run of a motion picture on the
same evening . . . [is a publication] that reaches a
new group and the repetition justifies a new cause of
action. The justification for this conclusion usually
offered is that in these cases the second publication
is intended to and does reach a new group.
The decision in Zoll not only quoted and discussed this rule, but concluded that it is superseded by controlling precedent. 2002 WL 31873461 at * 10 ("However, as made clear by Nelson v. Working Class, Inc., supra, New York courts applying the single publication rule to television broadcasts in the context of right of privacy claims have not treated each individual broadcast as a republication and have instead indexed the statute of limitations to the first airing."). Plaintiff does not suggest any reason why the Court's previous analysis should not continue to hold; as such, plaintiff's citation to Sack on Defamation is repetitive and unavailing.
Neither do the cases cited to by plaintiff require a change in result. In Foretich, defendant author granted permission for an article he had written to be published in a national magazine; he later granted permission for an advocacy group to make copies of the magazine article. 753 F. Supp. at 958. Plaintiff brought a defamation claim based on the distribution of copies of the article by the advocacy group. The court held that the statute of limitations should begin to run not upon the publication of the article in the national magazine, but upon the copying and distribution of the article by the advocacy group because the advocacy group's use of the article constituted a republication. Id. at 960. Although the court did rely on the rule in defamation cases that subsequent publications of the same material, including a rebroadcast of a television program, constitute a republication, Id. at 960 (citing to a treatise on defamation for the rule that "subsequent publications of the same material, such as new editions of a newspaper or book, or rebroadcast of a television program, are new publications, or republications, that trigger a new cause of action and commence a limitations period"), the court also distinguished the facts presented from "a case where . . . the original publisher [distributed photocopies] incident to the original publication." The facts in this case clearly fall into the latter category — with regard to the 2000 re-release, defendant, the original publisher of the 1978 commercial, also initiated the subsequent publication, the 2000 re-release — and therefore also fall outside of the scope of the holding in Foretich.
Additionally, as already discussed by this Court in Zoll, in Nelson v. Working Class, Inc., 2000 WL 420554 at *3 (S.D.N.Y. April 18, 2000), Judge Baer held that subsequent airings of a television commercial by the same advertising agency did not refresh the statute of limitations, which was indexed to the initial airing of the commercial. Plaintiff cites no rationale as to why the holding in Foretich, a case from a different jurisdiction that does not apply New York law and in which the court expressly distinguishes instances where the initial publisher publishes the subsequent publication, should prevail over the directly applicable holding in Nelson, and I can find none.
The other case cited to by plaintiff, Epic Metals Corp. v. Condec, Inc., similarly fails to advance plaintiff's argument that the 2000 re-release constitutes a republication. In Epic Metals, the court, referencing the language from defamation treatises set out in Foretich for guidance, discussed whether later publication of a photo in black and white that was initially published in color constituted a republication and refreshed the statute of limitations under Florida Statute § 540.08, Florida's privacy statute. 867 F. Supp. at 1016. Importantly, however, the court declined to rule on the issue of republication, concluding its review by observing that "assuming the 1991 publication of defendant Souliere's photograph in the plaintiff's second brochure is a separate cause of action, the four year statute of limitations does not bar defendants' [claims]." Id. (emphasis added). The court went on to decide the case on other grounds. Id. ("[P]laintiff's motion for summary judgment . . . is granted on other grounds. . . ."). Thus, the court never held whether the subsequent black and white publication constituted a republication; additionally, even under the standard applied by this Court in Zoll, publication in black and white as opposed to color could very well rise to the level of republication because the change in photo color could be considered an alteration or revision. Because Epic Metals was issued in another jurisdiction, does not apply New York law, and does not render a holding regarding the proposition for which plaintiff has cited it, I do not find it persuasive.
Having relied in my original opinion on controlling New York case law setting forth the standard to be applied in determining whether a subsequent publication constitutes a republication, the secondary sources and cases from other jurisdictions brought to my attention by plaintiff neither require me to change my holding, nor do they incline me to do so. Accordingly, I find that plaintiff has failed present the court with issues of controlling fact or law that were previously overlooked. Plaintiff's motion for reconsideration on the ground that the 2000 re-release constitutes a republication under Rinaldi is, therefore, denied.
2. The scope of the newsworthiness exception.
Plaintiff argues that the airing of segments of the 1978 commercial on various television programs does not fall within the newsworthiness exception to §§ 50, 51 of the Civil Rights Law. Under the Civil Rights Law, use of an individual's image is actionable only if it is used for "for advertising purposes or for the purposes of trade" and the use of an individual's image is not considered to be used for advertising or trade purposes if it is used in connection with a newsworthy item. Ali v. Playgirl, Inc., 447 F. Supp. 723 (D.C.N.Y. 1978). Plaintiff argues that the airing of segments of the 1978 commercial on various television programs does not fall within the newsworthiness exception because defendant is not a member of the media and encouraged television programs to air stories on the vintage jeans line by providing promotional materials to the television programs that included the 1978 commercial. Plaintiff argues additionally that there is an issue of fact with regard to whether the reporting of Jordache's new jeans line was really news or whether it was an "advertisement in disguise". (Pl.'s Am. Mot. at 4-5.) I again review plaintiff's submissions to determine if plaintiff has identified issues of controlling fact or law that were previously overlooked and would be outcome determinative.
Plaintiff's first argument is that defendant can properly be held liable for the appearance of the 1978 commercial in fashion stories aired on television programs because it is not protected by the newsworthiness exception, which plaintiff argues may only be invoked to protect media defendants from liability. (Pl.'s Am. Mot. at 4.) Plaintiff cites to a number of cases in support of its argument: Welch v. Mr. Christmas, Inc., 57 N.Y.2d 143 (N.Y. 1982), Beverley v. Choices Women's Medical Center, Inc., 78 N.Y.2d 745 (N.Y. 1991), and Cornwell v. Sachs, 99 F. Supp.2d 695, 713 (E.D.Va. 2000). Welch was previously raised by plaintiff and reviewed in Zoll, 2002 WL 31873461 at * 14; the remaining two cases are referenced for the first time in plaintiff's Amended Motion for Reconsideration. Plaintiff does not draw the court's attention to any previously overlooked factual issues; I therefore analyze plaintiff's claim to determine whether it has presented previously overlooked controlling law.
Welch was cited by plaintiff and reviewed by this Court in Zoll, 2002 WL 31873461 at * 14. Upon reviewing the case again, I do not find that it supports plaintiff's position with regard to the newsworthiness exception. In Welch, defendant advertising firm was held liable where it provided a commercial to its distributors, the distributors were to independently arrange to broadcast the commercial on television, and defendant failed to notify the distributors to no longer air the commercial when permission to use plaintiff actor's image expired. 57 N.Y.2d at 145-47. The commercial was not incorporated into a news story, it was instead aired as a commercial. I fail to see, therefore, how the case supports plaintiff's claim that the newsworthiness exception protects only media defendants since the newsworthiness exception was not raised.
The two remaining cases that plaintiff cites, Beverly v. Choices Women's Medical Center, Inc. and Cornwell v. Sachs, deal with instances where a non-media defendant directly and independently published an offending item and then unsuccessfully attempted to invoke the newsworthiness exception. Beverley, 78 N.Y.2d. at 751-55 (holding that non-media defendant who produced and distributed a calendar to promote its medical center that included a picture of plaintiff was not entitled to the protection of the newsworthiness exception merely by submitting that the theme of the calendar was women's progress where the calendar was clearly designed to advertise the medical center); Cornwell, 99 F. Supp.2d at 711-713 (holding that defendant who affixed stickers to the front of his novel in order to increase sales that cited celebrity by name and invoked a fabricated scandal involving the named celebrity was not protected by the newsworthiness exception even though he argued that the scandal was newsworthy). The courts in these cases did consider the fact that defendant publishers were not members of the media in as part of their inquiry into whether the newsworthiness exception applied. Beverley, 78 N.Y.2d. at 752 ("Choices [defendant], however, is not a media enterprise; its calendar was an advertisement of its only business . . . and it used Dr. Beverley's [plaintiff's] photo . . . in a direct and promotional, commercial manner."); Cornwell, 99 F. Supp.2d at 712 ("It is plainly frivolous and fanciful for Saches [defendant] to equate the sticker affixed to the cover of his book — or, for that matter, the cover itself — to the types of media entities which have successfully shielded their activities from scrutiny under New York's privacy laws.").
However, the proposition that only members of the media are shielded by the newsworthiness exception, even if accepted as true (an issue which I need not and do not reach), is not implicated in this case. Although in the present case defendant Jordache is not a member of the media, those entities who actually broadcast the clips to which the newsworthiness exception is applied are members of the media. Defendant provided promotional materials that included the 1978 videotape to various television programs, but the act of publication with regard to which the newsworthiness exception is invoked is the subsequent airing of portions of the promotional materials by these television programs, as part of their shows. Therefore, the immediate "publisher" of the news programs was a member of the media, rendering plaintiff's contention that the scope of the newsworthiness exception does not encompass non-media members somewhat beside the point.
To better illustrate this distinction, it is useful to compare how plaintiff's claims were structured in Beverley. In Beverley, defendants distributed a calendar featuring plaintiff's picture free of charge to "patients, to several media organizations and women's organizations, and to medical facilities, health insurance plan centers and physicians. . . ." 78 N.Y.2d. at 749. But plaintiff's claim in Beverley was based on the distribution of the calendar itself, not on any news stories that might have referenced the calendar aired or printed by the various media organizations to whom it was distributed. Id. at 750-51. Similarly, in the present case, plaintiff brings a claim relating to the distribution by defendant of promotional materials (including distribution to media organizations); plaintiff's claims regarding defendants distribution of these is not protected under the newsworthiness exception. See discussion infra pp. 34-35. However, to the extent that plaintiff seeks to establish a separate cause of action based on the act of airing portions of these promotional materials as news by members of the media, they are precluded by the newsworthiness exception.
Plaintiff's second argument related to the application of the newsworthiness exception is that there is a factual issue as to whether the airing of clips of the 1978 commercial on various television programs constituted news or "advertisements in disguise" unprotected under the newsworthiness exception.*fn2 Although the publication of an individual's image in conjunction with newsworthy items of public interest is not actionable under §§ 50, 51, this protection does not extend to publications that constitute an "advertisement in disguise." Messenger ex rel. Messenger v. Gruner Jahr Printing and Pub., 94 N.Y.2d 436, 442 (N.Y. 2000) ("Consistent with the statutory — and constitutional — value of uninhibited discussion of newsworthy topics, we have time and again held that, where a plaintiff's picture is used to illustrate an article on a matter of public interest, there can be no liability under sections 50 and 51 unless the picture has no real relationship to the article or the article is an advertisement in disguise.").
Plaintiff cites two cases to support its argument that the airing of the 1978 commercial as part of various stones relating to developments in fashion did not really constitute "news" and was instead an "advertisement disguise." In the first of these, Onassis v. Christian Dior-New York, Inc., 472 N.Y.S.2d 254 (N.Y. Sup.Ct. 1984), aff'd, 488 N.Y.S.2d 943 (N.Y. App. Div. 1985), the court's central holding was that the use of a look-a-like actress to portray a famous individual in a print advertisement could give rise to a claim under §§ 50, 51. The court also held that the advertisement was not privileged as protected speech under the First Amendment because it "deal[t] with the sale of goods, and not with the promulgation of ideas." Id. at 262. The court observed that "`[t]he factual reporting of newsworthy persons and events is in the public interest and is protected. The fictitious is not.'" Id. (citation omitted).
This case would seem to be cited by plaintiff for the proposition that because defendant Jordache had a profit motive in conducting its publicity campaign and providing promotional materials to various television programs, the airing of the 1978 commercial on these television programs was not newsworthy. Again, plaintiff confuses the issue of defendant's motives in conducting the publicity campaign and the television programs' motives in airing clips in conjunction with various fashion-related stories. The television programs aired the stories that included clips of the 1978 commercial and the television programs did not have a profit motive related to the sale of Jordache jeans. This case does, therefore, convince me that there is a disputed issue of fact as to whether the use of the 1978 commercial on various television programs constituted news or an advertisement.
The second case cited to by plaintiff, Shamsky v. Garan, Inc., 632 N.Y.S.2d 930 (N.Y. Sup.Ct. 1995), held that individual team members of the 1969 New York Mets had a cause of action under §§ 50, 51, even though the players had signed a contract allowing the Mets to use their pictures for publicity purposes, where a company printed T-shirts with a picture of the team on the front. Id. at 932-35. The court noted that defendant "is attempting to cash in on plaintiffs' skill and renown on the baseball diamond. Without plaintiffs' consent, that is something defendant simply may not do." Id. at 936-37.
It appears that plaintiff cites this case for the proposition that where an individual's image is used by another with a profit motive (in Shamsky, placing plaintiff's picture on a T-shirt), that use falls outside of the scope of the newsworthiness exception, even where the individual whose picture is used signed a contract expressly permitting his/her image to be used for in the context of generating publicity relating to a newsworthy event (in Shamsky, the 1969 World Series). Even if accepted as accurate, however, this proposition has no application in the present case. As discussed above, the television programs that aired the 1978 commercial as part of fashion-related stories did not have any profit motive relating to the sale of Jordache jeans. As such, Shamsky does not speak to the applicability of the newsworthiness exception in the present case.
Other cases (not cited by plaintiff)*fn3 further develop the concept of "advertisement in disguise" and confirm that there is no issue of disputed fact precluding summary judgment in this case. The concept that a publication covering a topic in the public interest could constitute an "advertisement in disguise" that is actionable under the Civil Rights Law was first articulated in Griffin v. Medical Soc. of State of New York et al., 11 N.Y.S.2d 109, 110 (N.Y. Sup.Ct. 1939). In that case, plaintiff was treated by two physicians who subsequently wrote and published an article that featured pictures of plaintiff both before and after a surgical procedure. Id. Plaintiff sued both the doctors and the journal in which the article was published. The court rejected defendant journal's motion to dismiss on the ground that the article was not used for advertising purposes because it found that
[a]n article, even in a scientific publication, may be
nothing more than someone's advertisement in
disguise. There are advertisements not directly paid
for or not paid for at all. Publicity of a kind which
is tantamount to concealed or subtle advertising is
sometimes freely given, or exchanged for some
immediate or remote benefit anticipated by the
publisher. No hard and fast line can be drawn. Each
case depends upon its own facts. That the article in
hand, with its accompanying photographs of plaintiff,
was published by the moving defendants to advertise
the defendant physicians and their handiwork is a fair
inference to be drawn from the amended complaint.
Id. at 110. While this language may, at first blush, seem expansive, the "`advertisement in disguise' exception is very narrowly construed," Cruz v. Latin News Impacto Newspaper, et al., 627 N.Y.S.2d 388, 390 (N.Y. App. Div. 1995), and numerous courts interpreting the exception have granted motions to dismiss or motions for summary judgment even where plaintiffs have attempted to argue that the "advertisement in disguise" exception applied. See, e.g., Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (N.Y. 1984); Abdelrazig v. Essence Communications, Inc., 639 N.Y.S.2d 811 (N.Y. App. Div. 1996); Cruz, 627 N.Y.S.2d 388, Heller v. Family Circle, Inc., 445 N.Y.S.2d 513 (N.Y. App. Div. 1981); LaForge v. Fairchild Publications, Inc., 257 N.Y.S.2d 127 (N.Y. App. Div. 1965); Siegel v. Esquire, 167 N.Y.S.2d 246 (N.Y. App. Div. 1957).
In Stephano v. News Group Publications, a case with facts similar to those presented here, the New York Court of Appeals held that there was no issue of fact as to whether a magazine article on "Best Bets" in fashion that featured a picture of plaintiff (a professional model) wearing a designer jacket was an advertisement in disguise even though the article included a favorable description of the jacket ("Based on his now classic turn on the bomber jacket, this cotton twill version with `fun fur' collar features the same cut at a far lower price. . . ."), the price of the jacket, the approximate date upon which it would be available for sale, and reference to three stores (all of whom advertised in defendant's magazine) where the jacket would be sold. Id. at 221-22. The court, in rejecting plaintiff's contention that it had presented sufficient facts so as to preclude summary judgment with regard to the application of the newsworthiness exception, noted that, "[t]he facts on which the plaintiff relies are entirely circumstantial. He does not claim to have personal knowledge, or direct proof, that this particular article was actually published by the defendant for advertisement purposes." Id. at 226. The court concluded by observing that "[t]he rule exempting articles of public interest from the operation of the Civil Rights Law would, as a practical matter, lose much of its force if publishers of articles which are at least prima facie newsworthy were required to incur the expense of a trial to meet such general and insubstantial accusations of disguised advertising." Id.
Plaintiff in this case has not submitted any evidence that the television programs that aired clips of the 1978 commercial did so with the intent of advertising for defendant, that the television programs had any financial interest in the sale of Jordache jeans, or that the television programs were in any way remunerated or rewarded by defendant. Plaintiff has shown merely that defendant encouraged (through the provision of press kits) television programs to air news stories covering the relaunch of its vintage jeans line. As made clear in Stephano, the fact that the publication of a newsworthy story by a member of the media has, in addition to the dissemination of information of public interest, an advertising effect that accrues to the benefit of a merchant does not raise an issue of fact as to whether the story constitutes an advertisement in disguise.
In summary, as discussed in Zoll, there is precedent directly on point in this jurisdiction holding that fashion news falls within the newsworthiness exception, Stephano, 64 N.Y.2d at 225 ("The newsworthiness exception applies not only to reports of political happenings and social trends . . . but also to news stories and articles of consumer interest including developments in the fashion world."), and the reports and stories about defendant's vintage jeans line concerned a matter of developments in the fashion world. The issue raised by defendant in its motion for summary judgment and ruled upon by this Court in its Opinion in Zoll was whether plaintiff has a cause of action based purely on the airing of segments of the 1978 commercial by various television programs during the course of stories reporting on fashion-related news. Under controlling precedent in this jurisdiction, it is clear that there is no cause of action under §§ 50, 51 of the Civil Rights Law arising out of the dissemination of newsworthy stories by television programs, and the cases cited by plaintiff do not convince me otherwise. Additionally, a motion for reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader, 70 F.3d at 256. Plaintiff raised these claims almost verbatim in its Rebuttal Memorandum Opposing Summary Judgment, arguing that "the uses of parts of the 1978 commercial on TV was NOT news but part of a concerted effort by defendant using Ruder Finn promoting the defendant's product in the disguise of `news'," and that there is a disputed issue of fact as to "whether factually was what Ruder Finn did a clear business promotion OR supplying newsworthy materials for a matter of consumer interest." (Pl.'s Rebuttal Mem. at 3.) These claims were previously addressed in Zoll. 2002 WL 31873461 at *13.
I therefore deny plaintiff's motion for reconsideration. My earlier ruling, that plaintiff does not have a cause of action arising from the use of the 1978 commercial by various television programs in the course of reporting on developments in fashion, is unchallenged.
B. Defendant's Motion for Partial Reconsideration.
Pursuant to my decision in Zoll, plaintiff's only remaining claims relate to Plaintiff's 21 (a tape showcasing various television program segments — some of which include the 1978 commercial — and print clips that featured the release of the Jordache vintage jeans line) and Plaintiff's 23 (a tape compiling footage of various Jordache advertisements, including the 1978 commercial, and interviews with Jordache employees).*fn4 Defendant moves for reconsideration with regard to these tapes on three grounds: 1) Plaintiff's 23 is not a republication; 2) plaintiff concedes that she signed a release allowing the use of her image for in-house purposes and Plaintiff's 21 was used only for in-house purposes; and 3) neither promotional tape was used for an advertising or trade purpose. The first ground upon which defendant moves for reconsideration is based in its assertion of a statute of limitations defense — if Plaintiff's 23 is not a republication, then plaintiff's claim is, as discussed in Zoll, barred by the statute of limitations under the single publication rule. 2002 WL 31873461 at *7-9. The second and third grounds upon which defendant moves for reconsideration involve whether plaintiff has set forth an actionable claim. In order to state an actionable claim under §§ 50, 51, a plaintiff "must prove (1) use of plaintiff's name, portrait, picture or voice (2) `for advertising purposes or for the purposes of trade' (3) without consent and (4) within the state of New York." Hoepker v. Kruger, 200 F. Supp.2d 340, 348 (S.D.N.Y. 2002). Defendant contends that it had plaintiff's written consent to use her image and, further, that plaintiff has failed to show that the requirement of use for an advertising or trade purpose has been met.
In accordance with the standard of review applied to motions for reconsideration, I review defendant's motion to determine whether defendant has identified controlling issues of fact or law that were previously overlooked and would change the Court's decision.
1. Analysis of Plaintiff's 23 under the standard for republication.
Like plaintiff, defendant asks this court to revisit its analysis of what constitutes a republication under Rinaldi, 422 N.Y.S.2d 552. Specifically, defendant, relying solely upon cases that were reviewed and discussed by the Court in its initial opinion (Rinaldi, 422 N.Y.S.2d 552, Firth v. State, 98 N.Y.2d 365 (N.Y. 2002), Gold v. Berkin, 2001 WL 121940 (S.D.N.Y. 2001), Cuccioli v. Jekyll & Hyde, 150 F. Supp.2d 566 (S.D.N.Y. 2001)), argues that Plaintiff's 23 is not a republication. Defendant urges that because the clip of the 1978 commercial as it appears in the compilation tape (Plaintiff's 23) was not internally altered and was featured as an individual segment alongside other individual segments, it cannot constitute a republication.
The similarities between the facts in Rinaldi and those presented with regard to Plaintiff's 23 are clear. In Rinaldi, the court held that there was a republication even though the revisions to the book did not change the content of the text of the book itself, but were merely changes in its packaging and prefatory, informational text (presenting the text of the book in soft cover instead of hard cover and editing prefatory material relating to the publication date and editing information). Likewise, in the case of Plaintiff's 23, there is no change in the content of the 1978 commercial itself, but there are changes in the packaging and how it is presented — it is now incorporated into a video compilation, prefaced and followed by additional video material that begins with an invitation for viewers to contact Jordache or Ruder Finn representatives for more information. And the additional factors cited in Rinaldi as supporting a finding of republication are present in both Rinaldi and Plaintiff's 23 — the original publisher was in control of the material between the time of initial publication and subsequent republication and the republication was part of a conscious attempt to reach a new audience. Rinaldi at 556. Both of these factors were identified as significant factors weighing in favor a finding of republication in Rindaldi and both are present here.
It is not necessary, however, to address defendant's motion on the merits. Defendant has drawn the Court's attention to no new issues of controlling fact or law that would recommend a change in its initial determination that Plaintiff's 23 constitutes a republication. In Zoll, 2002 WL 31873461 at *12, I reviewed the same authorities cited by defendant in its Motion for Partial Reconsideration and held that Plaintiff's 23 is a republication ("As in Rinaldi, the 1978 commercial as incorporated into the promotional compilation tapes was modified, presented in a different manner, and distributed to a new and different audience, and this was the product of a conscious decision by Jordache."); reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader, 70 F.3d at 256. As such, defendant's motion for reconsideration on the ground that Plaintiff's 23 does not constitute a republication is denied.
2. Release signed by plaintiff.
With regard to Plaintiff's 21, defendant asks this court to grant its Motion for Partial Reconsideration on the ground that the court overlooked the controlling facts that (1) plaintiff signed a release authorizing the in-house use of her likeness and (2) the only evidence in the record showing how Plaintiff's 21 was used indicates that it was used for in-house purposes in accordance with this release. (Def.'s Mem. in Supp. at 3.) As discussed above, in order to sustain a claim under §§ 50, 51, plaintiff must show that her image was used without her consent. Hoepker, 200 F. Supp.2d at 348.
The release is missing and there is a factual dispute as to the type and scope of the release that plaintiff signed — defendant contends that plaintiff signed a buy-out release allowing the unfettered use of her image and, alternatively, that numerous uses of plaintiff's image would be permissible even under an "in-house" release; plaintiff contends that she signed only a release allowing for in-house use of her image and that in-house use is very limited. For purposes of its motion for summary judgment, defendant accepts plaintiff's contention regarding the type and scope of the release signed. (Def.'s Mem. in Supp. at 3.) ("While there is a factual dispute regarding the scope of that release, even under Plaintiff's formulation of the release — which must be accepted at this stage of the proceedings — Jordache has the unfettered right to use the 1978 video for `in-house' promotional purposes.") Defendant argues, however, that even accepting plaintiff's assertions about the type and scope of the release signed, plaintiff has not shown that Plaintiff's 21 was utilized in a manner not permitted under the release. Plaintiff responds by arguing first that the scope of the in-house release signed by plaintiff was narrow such that even the manner in which defendant concedes that Plaintiff's 21 was used exceeds its bounds and, additionally, that (contrary to defendant's claim) it has shown that Plaintiff's 21 was made available by defendant to a general audience, a use which it contends would clearly exceed the scope of an in-house release. (Pl.'s Mem. in Opp. at 2.)
Because this issue is raised in the context of defendant's motion for summary judgment, the question before the Court is whether there is evidence in the record from which a reasonable juror, making all reasonable inferences in favor of plaintiff, could conclude that Plaintiff's 21 was used in a manner that exceeded the use allowed by the terms of the release signed by plaintiff. Donahue v. Artisan Entertainment, Inc., 2002 WL 523407 at * 1 (S.D.N.Y. Apr. 8, 2002) (holding that if there is "any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party," then summary judgment should not be granted).
The parties agree (for the purposes of the summary judgment motion) that plaintiff's contention about the type and scope of the release controls. The release is lost and I therefore turn to plaintiff's testimony regarding its scope. In a declaration dated July 3, 2001, plaintiff stated that, on the day that she was filmed for the 1978 commercial, she declined to sign a buy out release (which would have granted defendant unfettered use of her image) and instead negotiated and signed a release that "included the words `in house use only.'" (Zoll Decl. at 1-2.) Plaintiff stated that she understood that the video footage would be used as "a very small promotional piece that would never be seen by the public." Id. at 2. In a deposition dated September 24, 2001, plaintiff testified further that she understood that the release permitted the video to be shown "in their company [Jordache] like this, in a room like this," as a "promotional piece" to buyers and designers who "come in and Jordache tries to sell them lots of product." (Zoll Dep. at 39, 42.) She testified further that "the only knowledge that I know for certain that I had at that time was that the film would only be used [physically] within the facility of Jordache." (Zoll Dep. at 41.) A review of plaintiff's testimony establishes, therefore, that she contends that she signed a release that specifically stated that her image was to be used only for "in-house" purposes and, additionally, that her understanding was that "in-house" purposes meant that it would be shown only on the physical premises of defendant's company.
Having set out the type and scope of the release as understood by plaintiff, it is next necessary to set out the evidence in the record as to the manner in which Plaintiff's 21 was used by defendant. There is evidence in the record showing that defendant embarked on a publicity campaign in support of its vintage jeans line, that the 1978 commercial was a centerpiece of this campaign, that defendant hired Ruder Finn to assist in its publicity efforts, and that Plaintiff's 21 and Plaintiff's 23 incorporated the 1978 commercial and were prepared and distributed in conjunction with the publicity campaign. (Berlinger Dep. at 9-13, 72-80, 90-95.) There is also evidence in the record that speaks more specifically to the particular uses to which Plaintiff's 21 was put. Elizabeth Berlinger, president of defendant Jordache, in response to a question asking her what "the purpose of preparing" Plaintiff's 21 was, stated that Plaintiff's 21 was prepared "[t]o give to our various sales reps around the country to show the press that we've been adding regarding our brand."*fn5 (Berlinger Dep. at 74.) Berlinger stated that she did not know who (Jordache, Ruder Finn, or Winner Communications) produced Plaintiff's 21. (Berlinger Dep. at 75.)
Plaintiff argues that, in addition to being distributed to sales representatives "around the country" as described above, Plaintiff's 21 was also shown to a general audience at public trade shows. (Pl.'s Mem. in Opp. at 2, 3.) ("[T]he Ruder Finn promotional compilation tape [was] used in 2001 by defendant at a publicly-attended `Trade Show'.") ("Such use was never intended nor agreed to as part of a Ruder Finn compilation tape used over 20 years later at public trade shows.") Defendant argues that this contention "finds no support in the record." (Def.'s Reply Mem. at 3.) I therefore turn once again to the record.
A review of the record shows that the label on Plaintiff's 21 states: "Jordache, Trade Show, February 7, 2001, RT:07:24, Vision Tracks, St. Louis, Missouri." Berlinger also testified that a trade show was held in February 2001 in Las Vegas (the "Magic Show"). (Berlinger Dep. at 78.) Berlinger testified that she did not know whether Plaintiff's 21 was ever aired at a trade show.*fn6 Summarizing the record with regard to whether Plaintiff's 21 was aired at a trade show, I note the following: Plaintiff's 21 bears a label reading "Trade Show", the date on Plaintiff's 21 (February 2001) corresponds with the date of the "Magic Show" fashion trade show held in Las Vegas, and no witness for defendant denied that Plaintiff's 21 was used at a trade show.
It is a close question whether a reasonable juror could conclude from the foregoing record that defendant utilized Plaintiff's 21 in a manner that exceeded the (alleged) scope of the release signed by plaintiff. As such, it is useful to review the standard for granting a motion for summary judgment. As a general matter, "[t]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson et al. v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Evidence is sufficient to support a jury verdict where a juror could infer the existence of material facts from the circumstances and evidence provided. Id. (noting that summary judgment was not warranted in a case where "the moving parties' submissions had not foreclosed the possibility of the existence of certain facts from which `it would be open to a jury . . . to infer from the circumstances' an element of underlying claim) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Additionally, "all reasonable inferences [must be made] in favor of the party against whom summary judgment is sought. . . ." Preston v. Martin Bregman Productions, Inc., 765 F. Supp. 116, 117 (S.D.N.Y. 1991) (citation omitted).
Because the release itself is missing and this issue is considered in the context of a motion for summary judgment, plaintiff's testimony regarding the scope of the release controls. Plaintiff has testified that the release extended only to the airing of the video on the premises of defendant. And there is evidence in the record tending to show that the video was widely distributed to sales representatives "around the country" and from which a reasonable inference could be drawn that the video was aired at one and possibly more trade shows. A reasonable juror could, based on this evidence, reach the conclusion that defendant's use of plaintiff's image in Plaintiff's 21 exceeded the scope of the release either by relying on plaintiff's testimony that the release did not permit nationwide distribution to sales representatives or by making the reasonable inference that Plaintiff's 21 was aired before a general audience at one or more trade shows.
I note additionally that, in part because the decision in Zoll significantly narrowed and crystallized the subject matter of the litigation, the exact terms of the release and the exact uses of Plaintiff's 21 were not a focus of argument in the original motion papers.*fn7 Defendant, while contending that plaintiff signed a buy out release barring all of her claims, never previously raised as an issue that plaintiff's claims were barred even under her own formulation of the release. Indeed, defendant initially moved for summary judgment under the Civil Rights Law only on the grounds that plaintiff's claims were barred by the statute of limitations and fell within the newsworthiness exception. (Def.'s Mem. in Supp. of Summ. J. at 9.) (Def.'s Reply Mem. in Supp. of Summ. J. at 4, n. 2.) Defendant now, in its Motion for Partial Reconsideration, raises for the first time the argument that it is entitled to summary judgment on the additional and separate ground that the plaintiff's release authorized use of her image with regard to Plaintiff's 21. In the context of a motion for reconsideration, however, it is well established that a moving party is not permitted to "advance new facts, issues or arguments not previously presented to the court," Bank Leumi Trust Co. of New York, 902 F. Supp. at 48, to prevent parties from reviewing a decision and then "plugging the gaps of the lost motion with additional matters." Carolco Pictures Inc., 700 F. Supp. at 170.
In light of my review of the record set out above and the standard applied to motions for reconsideration, defendant's motion for reconsideration on the ground that plaintiff's release authorized the uses for which Plaintiff's 21 was utilized is denied.
3. Satisfaction of the statutory "use" requirements for stating a claim
under §§ 50, 51 — a) use for an advertising or trade
purpose; and b) the "incidental use" exemption.
Defendant contends that it is entitled to reconsideration because plaintiff has not shown that Plaintiff's 21 and Plaintiff's 23 satisfy the requirements for how an individual's likeness must be used in order to bring a claim under the Civil Rights Law. The Civil Rights Law applies only where an individual's likeness is used "for advertising purposes" or "for purposes of trade" and where the use of the individual's likeness is not merely incidental. Defendant argues that plaintiff has not shown that either Plaintiff's 21 or Plaintiff's 23 was used for the requisite advertising or trade purpose; defendant argues in addition that the use of plaintiff's likeness in Plaintiff's 21 was incidental and therefore not recognized under the Civil Rights Law.
Before turning to address these arguments, I express concern that both of these issues were raised for the first time by defendant in its Motion for Partial Reconsideration. In its initial motion for summary judgment, defendant's statutory arguments were limited to the assertion of the newsworthiness exception and a statute of limitations defense. No reference was made to the issues raised by defendant in its Motion for Partial Reconsideration (advertising/trade purpose or incidental use) by either party. As noted above, a motion to reconsider may not be used to "advance new facts, issues or arguments not previously presented to the court." Bank Leumi Trust Co. of New York, 902 F. Supp. at 48. A losing party may not use a motion for reconsideration to "plug the gaps of the lost motion with additional matters" after examining a decision. Carolco Pictures Inc., 700 F. Supp. at 170. Where a party raises an argument for the first time in a motion for reconsideration, the argument, and the facts and law cited in support thereof, cannot be considered to be matters previously overlooked by the court, but is instead an entirely new matter not properly within the scope of a motion for reconsideration. Id. at 172 ("The reasons advanced by the . . . defendants for summary judgment did not include the argument that Block was not legally responsible for Sirota's conduct. As a result, Block's motion for reargument raises a new matter that was not `overlooked' by the court in the first place."). See also Bank Leumi Trust Co. of New York, 902 F. Supp. at 48 ("[T]he plain language of Rule 3(j) precludes a party from advancing new facts, issues or arguments not previously presented to the court `because, by definition, material not previously presented cannot have been `overlooked' by the court.'") (citing Hel v. Lebow, 1995 WL 231273 at *1 (S.D.N.Y. Apr. 18, 1995)). In view of this standard of review, it is with some hesitation that I turn to address the merits of defendant's arguments, since there is a significant question at the outset as to whether they are properly raised in the context of a motion for reconsideration. I turn to the merits of defendant's arguments with these concerns in mind.
a. Use for an advertising or trade purpose.
Defendant's first argument is that plaintiff's claims with regard to both Plaintiff's 21 and Plaintiff's 23 fail to meet the requirements set out in §§ 50, 51 of the Civil Rights Law. Defendant submits that §§ 50, 51 apply only where a likeness is used for "advertising purposes" or "for purposes of trade" and directs the Court's attention to a case discussing this element of a §§ 50, 51 claim. Defendant argues that there is no evidence in the record that either Plaintiff's 21 or Plaintiff's 23 was used for an advertising or trade purpose. I analyze defendant's claim to determine if it has presented controlling law that warrants a changed outcome with regard to its underlying motion for summary judgment.
The Civil Rights Law prohibits the use of a person's name, portrait or picture "for advertising purposes, or for the purposes of trade" without that person's prior, written consent. To provide direction as to what constitutes "advertising purposes" or "for purposes of trade," defendant cites Kane v. Orange County Publications, 649 N.Y.S.2d 23 (N.Y. Sup.Ct. 1996). The court in Kane describes "advertising purposes" as "`use in, or as part of, an advertisement or solicitation for patronage'," and "for purposes of trade" as "use which would draw trade to the firm." Kane, 649 N.Y.S.2d at 25. See also Delan v. CBS, Inc., 458 N.Y.S.2d 608, 613 (N.Y. Sup.Ct. 1983) (defining "for purposes of trade" as "use for the purpose of making profit. . . ."). In Kane, defendant newspaper published an article and an editorial discussing charges that a local funeral director negligently handled the burial of a relative of plaintiffs. Id. at 24-27. Defendant newspaper subsequently published as a paid advertisement an "Open Letter" from the funeral director addressing the events "which were the subject of the earlier litigation, and which were previously reported in both the article and the editorial." Id. at 25. Plaintiffs, whose names were referenced in the funeral director's letter, brought a claim against the newspaper under §§ 50, 51 arguing that the letter constituted a paid advertisement and they had not consented to the use of their names therein. The court held that "not all material published in the advertising sections of a newspaper is designed to solicit customers or sell a product or service," and dismissed the case because plaintiffs failed to "allege in their complaint that the open letter used their name to solicit customers for the funeral director or draw trade to his firm." Id.
Other cases (not cited by defendant) have further elucidated the scope of what constitutes an advertising or trade purpose. Where an individual's name or likeness is used "for the purpose of soliciting purchasers for defendant's products the advertising prong of the statute is violated." Lerman v. Flynt Distributing Co., Inc., 745 F.2d 123, 130 (2d Cir. 1984). See also Morse v. Studin, 725 N.Y.S.2d 93, 94 (N.Y. App. Div. 2001) ("`A name, portrait or picture is used `for advertising purposes' if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service.'") (quoting Beverley v. Choices Women's Med. Center, 78 N.Y.2d 745). While the paradigmatic use for advertising or trade purpose is the incorporation of an individual's image in a commercial or advertisement that is aired or distributed to the general public, various other uses have been held to fall within the scope of the statute. For example, the use of an individual's picture in a newsletter mailed by a doctor to his patients, Morse, 725 N.Y.S.2d at 94, in an instruction manual demonstrating the use of a camera, Selsman v. Universal Photo Books, Inc., 238 N.Y.S.2d 686, 687 (N.Y. App. Div. 1963), in a calendar in the theme of women's history sent free of charge to "patients, to several media organizations and women's organizations, and to medical facilities, health insurance plan centers and physicians," Beverley, 78 N.Y.2d at 749, and in a publicity photo sold by photographer to a newspaper, Holmes v. Underwood & Underwood, 233 N.Y.S. 153, 155-56 (N.Y. App. Div. 1929), have been held to constitute use for an advertising or trade purpose. The use of an individual's name as a named plaintiff in a court suit, Griffin v. Law Firm of Harris, Beach, Wilcox, Rubin and Levey et al., 490 N.Y.S.2d 919, 921 (N.Y. App. Div. 1985), in the circulation of galley proofs of a book to reviewers, Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341 (N.Y. 1968), and on a list of contact persons of an organization on a web-site, Leary v. Punzi, 687 N.Y.S.2d 551, 553 (N.Y. Sup.Ct. 1999), have been held not to constitute uses for an advertising or trade purpose. The advertising purpose prong "is to be construed liberally," Selsman, 238 N.Y.S.2d at 687, and in determining whether a likeness is used for advertising or trade purposes, it is necessary to "weigh the circumstances of the use, its extent or degree, and the character of the use." Netzer v. Continuity Graphic Assoc., Inc., 963 F. Supp. 1308, 1325-26 (S.D.N.Y. 1997) (citing to Damron v. Doubleday, Doran & Co., 231 N.Y.S. 444, 446 (N.Y. Sup.Ct. 1928)) ("In determining whether a name or likeness is used primarily for advertising or trade, we may have to weigh the circumstances, the extent, degree, or character of the use."). The court should focus on whether the use of plaintiff's image was "sufficiently related to a commercial end" or "mercantile rewards." Griffin, 490 N.Y.S.2d at 921.
Defendant argues that "there is no evidence in the record that Jordache ever used the promotional tapes for `advertising purposes' or `for purposes of trade,'" and plaintiff's claim accordingly fails. Plaintiff responds that "[t]he entire promotional campaign with the 1978 Commercial by defendant and Ruder Finn was to make money and for no other reason." (Pl's Mem. in Opp. at 4.) Plaintiff cites to a portion of Berlinger's deposition where she confirms that Jordache relaunched a vintage jeans product in 2000, that the 1978 commercial was used to promote the relaunch, and that the 1978 commercial was used "in the hope of stimulating sales."*fn8 (Berlinger Dep. at 92-93.)
Defendant raises this claim in the context of a motion for summary judgment. I therefore review the record to determine whether there is sufficient evidence, making all reasonable inferences in favor of plaintiff, for a reasonable juror to conclude that the 1978 commercial as incorporated into Plaintiff's 21 and Plaintiff's 23, was used by defendant for "advertising purposes" or "for purposes of trade" — namely, whether, considering the circumstances, extent, and character of the use, plaintiff's image was used to advertise, to solicit patronage (customers), and/or to help defendant make a profit or increase trade or sales.
As evidenced by the Berlinger testimony cited by plaintiff, there is ample evidence in the record tending to show that the 1978 commercial was a central element of defendant's promotional campaign related to its relaunch of the vintage jeans line and that the purpose of generating publicity regarding the relaunch of the vintage jeans line was to increase sales of the vintage jeans line. (Berlinger Dep. at 82-88.) There is also evidence in the record tending to show that Plaintiff's 21 and Plaintiff's 23 were a part of defendant's publicity efforts. In Zoll, I reviewed the contents of Plaintiff's 21 and concluded that it was a "polished promotional product." 2002 WL 31873461 at *12. And as discussed in detail supra, there is evidence in the record that Plaintiff's 21 was distributed to defendant's sales representatives "across the country" and may, in addition, have been aired by defendant at one and possibly more trade shows. (Berlinger Dep. at 74.) Plaintiff's 23 was also incorporated into defendant's promotional campaign. Making the same reasonable inferences that jury would be permitted to make, I concluded in Zoll that "Plaintiff's 23 was likely sent by Ruder Finn to various media outlets as part of its promotional activities." 2002 WL 31873461 at *12. Berlinger testified with regard to Plaintiff's 23 that "Ruder Finn used it I think in conjunction with their press releases when they were letting people know what they [sic] were doing," that "Ruder Finn basically was sending out various tapes and clippings about Jordache's new line," and that she believed that the 1978 commercial "was part of the tape that was sent out by Ruder Finn." (Berlinger Dep. at 91, 12-14.)
Defendant makes much of the fact that plaintiff has not proved the exact manner and extent to which Plaintiff's 21 and Plaintiff's 23 were distributed and contends further that plaintiff has not shown that they were distributed at all. (Def.'s Mem. in Supp. at 7-8.) However, the record in this case, although developed with a primary focus on the uses of the 2000 re-release, is sufficient to support a conclusion that both Plaintiff's 21 and Plaintiff's 23 were in fact used for advertising or trade purposes, even though the evidence of the size and scope of the audience for these tapes is not specific or exact. Plaintiff's 21 (looking in part to the styling and content of the tape itself) was prepared to showcase defendant's successful advertising campaign, was likely distributed to sales representatives nationwide, and may also have been aired at one or more trade shows. See discussion supra. This record supports a finding that the tape was expressly created and subsequently used for an advertising or trade purpose — the promotion of defendant's vintage jeans line. The record likewise supports the conclusion that Plaintiff's 23 was created expressly to promote defendant's vintage jeans line (the tape shows contemporary footage of models dancing in Jordache jeans, close up footage of the vintage jean product, footage of certain print advertisements featuring Jordache jeans, footage of excerpts of interviews with Jordache officials, and footage of the 1978 commercial) and was distributed in hopes of generating publicity (the tape begins with a screen instructing viewers to contact Tony Mangle and Michael Riego, Ruder Finn and Jordache representatives respectively, for further information). Zoll, 2002 WL 31873461 at * 12.
Indeed, a use for these tapes besides those of advertising and trade does not immediately spring to mind.*fn9 Although the tapes were not directly broadcast as commercials directed to the public, their use to publicize the vintage jeans line appears to be sufficiently related to a commercial end to support a conclusion that each of these tapes, "taken in its entirety, was distributed . . . as part of . . . [a] solicitation for patronage of a particular product." Morse, 725 N.Y.S.2d at 94. Based on the foregoing, I find that a reasonable juror, examining the record in this case, could reach the conclusion that Plaintiff's 21 and Plaintiff's 23 were used as part of defendant's promotional campaign to advance its commercial objectives with regard to the vintage jeans line and, therefore, were used for advertising or trade purposes as set forth in §§ 50, 51 of the Civil Rights Law. See generally Pierrottie v. Dell Publications Co., Inc., 199 F. Supp. 686, 688-89 (declining to grant a motion to dismiss or for summary judgment and setting a matter for trial where "the motion in effect require[d] a judicial determination that the use of plaintiff's photograph by defendant was not, as a matter of law, `for advertising purposes or for the purposes of trade.'").
Before turning from this issue, I address an additional point raised by defendant. Defendant argues that because the only use suggested in the record for Plaintiff's 23 was that it was provided by defendant (through its publicist Ruder Finn) to various television programs and aired as part of stories discussing fashion news, Plaintiff's 23 falls within the newsworthiness exception and no liability can accrue to defendant.*fn10 (Def.'s Mem. in Supp. at 8.) While defendant is correct that under the Civil Rights Law the use of an individual's image is not considered to be used for advertising or trade purposes if it is used in connection with a newsworthy item, Ali v. Playgirl, Inc., 447 F. Supp. 723 (D.C.N.Y. 1978), and that I have held that plaintiff does not have a cause of action arising from the airing of segments of the 1978 commercial on various television programs, defendant incorrectly assumes that this doctrine and holding extend to defendant's distribution of Plaintiff's 23 in the first instance. The issue presented is not whether the airing of the 1978 commercial on various television programs constituted an actionable use of plaintiff's image for an advertising or trade purpose under the Civil Rights Law, but whether defendant's provision of Plaintiff's 23, through its publicist Ruder Finn, to the programs that aired the clips and other media entities was an actionable use of plaintiff's image for trade or advertising purposes. The latter use (distributing the promotional video) does not fall within the newsworthiness exception merely because some media outlets subsequently made an independent decision that the launch of the vintage jeans lines was newsworthy and aired clips of the promotional video. The broadcast of the 1978 commercial by various television programs and defendant's independent promotional efforts involving Plaintiff's 23 are distinct. That the provision by defendant of promotional materials to television programs which subsequently incorporated them into broadcasts is treated as a separate and independent act is made clear by the court's treatment of a similar claim in Holmes v. Underwood & Underwood, 233 N.Y.S. at 155-56. In that case, defendant was hired to take pictures at plaintiff's social function and subsequently sold photos from that function to a newspaper. The court, in holding that plaintiff had stated a claim under the Civil Rights Law, noted that "[i]t is not the publishing of plaintiff's photograph that is at this stage so much material. Rather it is the sale of such photograph by defendant. . . . The newspaper is not here sought to be held liable." Id.
Nor may defendant avail itself of the newsworthiness exception on the ground that the introduction of the vintage jeans line was a newsworthy item and Plaintiff's 23 was distributed in connection with it. Where the use of a publication is primarily for commercial purposes and the public interest aspect of the publication is merely incidental, the newsworthiness exception does not apply. For example, in Titan Sports, Inc. v. Comics World Corporation, 870 F.2d 85, 88 (2d Cir. 1989), the court held that pull out posters of wrestling personalities, although included in a publicly-distributed magazine, were not protected by the newsworthiness exception because "New York courts have recognized that an insignificant public interest aspect of a `publication' cannot exempt it from the reach of section 51 where the primary aspect of the product is commercial." See also Beverley, 78 N.Y.2d at 752 (holding that a calendar in the theme of women's history that included plaintiff's picture was not protected by the newsworthiness exception because "although women's rights and a host of other worthy causes and movements are surely matters of important public interest, a commercial advertiser such as Choices [defendant] may not unilaterally neutralize or override the long-standing and significant statutory privacy protection by wrapping its advertising message in the cloak of public interest, however commendable the educational and informational value."); Gautier v. Pro-Football, Inc., 304 N.Y. 354, 359 (1952) ("While one who . . . is presently newsworthy may be the proper subject of news or informative presentation, the privilege does not extend to commercialization of his personality through a form of treatment distinct from the dissemination of news or information."). Defendant has not represented to the Court that it distributed Plaintiff's 23 for the purely non-commercial purpose of disseminating a matter of public interest and from the record it appears that Plaintiff's 23 was created and distributed for the express commercial purpose of promoting the sale of defendant's vintage jeans line. Defendant cannot, therefore, claim protection under the newsworthiness exception with regard to Plaintiff's 23.
Defendant's Motion for Partial Reconsideration on the ground that Plaintiff's 21 and Plaintiff's 23 were not used for advertising or trade purposes is denied.
b. The "incidental use" exception.
Defendant's second argument is that the use of plaintiff's image in Plaintiff's 21 was "incidental" and therefore not actionable under the Civil Rights Law.*fn11 (Def.'s Mem. in Supp. at 8, n. 2.) (Def.'s Reply Mem. at 5-6.) Defendant correctly points out that under §§ 50, 51, where use of a name, picture, or portrait is "merely incidental and isolated," that use is not actionable. Preston, 756 F. Supp. at 118-19. Whether a use is considered incidental depends upon "the role that the use of the plaintiff's name or likeness plays in the main purpose and subject of the work at issue;" where there is a "direct and substantial connection between the appearance of plaintiff's name or likeness and the main purpose of the subject of the work," the incidental use exception does not apply. Id. at 119. Defendant contends that because "[t]he total time that Plaintiff's image is displayed during the seven minute and twenty-four second video is less than five seconds," and because her image "is displayed in a smaller frame within the larger screen," the use of plaintiff's image in Plaintiff's 21 is incidental under this standard. (Def.'s Mem. in Supp. at 8.) (Def.'s Reply Mem. at 5.)
Defendant cites two cases that it submits require this court to find in its favor, Preston v. Martin Bregman Productions, Inc., supra, and Delan v. CBS, Inc., 458 N.Y.S.2d 608 (N.Y. Sup. Ct. 1983). The court described the extent of the use of plaintiff's image in Preston as follows: "[Plaintiff] is shown in only 9 seconds of this full-length motion picture, for 4 ½ seconds of which her face is visible, in the opening title scenes before the plot begins or any of the characters appear. Her appearance contributes nothing of significance to the movie's story line. . . ." 765 F. Supp. at 119 (emphasis added). The court granted summary judgment to defendant because the "statute [Civil Rights Law] requires a more direct and substantial connection between the appearance of the plaintiff's name or likeness and the main purpose and subject of the work." Id. Similarly, in Delan, the court granted summary judgment to defendant under the incidental use doctrine where plaintiff's "four-second appearance [in defendant's documentary film] was not only fleeting, but his role was very minor to the central theme of the documentary." 458 N.Y.S.2d at 614 (emphasis added).
Key to the court's determination in both cases was its finding that the plaintiff's appearance in each film was not directly or closely related to the main purpose or theme of the film. In this case, plaintiff is the star of well-known commercial that was resurrected as the centerpiece of a new promotional campaign and Plaintiff's 21 (as discussed above) was part and parcel of the promotional campaign. The use of plaintiff's image would appear, therefore, to be inextricably interwoven with the main theme or purpose of Plaintiff's 21 — promoting the sale of Jordache jeans. As such, a reasonable jury could conclude that the use of plaintiff's image was not merely incidental. I note additionally that plaintiff has cited two cases where courts have declined to grant, respectively, motions to dismiss, Doe et al. v. Dairen Lake Theme Park & Camping Resort, Inc., 715 N.Y.S.2d 825 (N.Y. App. Div. 2000), and motions for summary judgment, Grodin v. Liberty Cable, 664 N.Y.S.2d 276, 276-77 (N.Y. App. Div. 1997), under the incidental use doctrine because "the applicability of the exception is an issue of fact for the jury." Doe et al., 715 N.Y.S.2d at 825.*fn12 Defendant's Motion for Partial Reconsideration on the ground that the use of plaintiff's image in Plaintiff's 21 falls within the incidental use exemption is accordingly denied.
In summary, all of plaintiff's and defendant's motions for reconsideration having been reviewed and denied, the original decision in Zoll stands unmodified.
In addition to moving for reconsideration, plaintiff requests permission to depose Ruder Finn in its motion papers. The Court will address this issue at a later time. The parties are directed to attend a status conference before the Court on May 29, 2003, at 2 p.m. in Room 17C, 500 Pearl St.
It is SO ORDERED.