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ZOLL v. JORDACHE ENTERPRISES INC.

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).

II. DISCUSSION

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 ยงยง 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 ...


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