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ZOLL v. RUDER FINN

United States District Court, S.D. New York


March 15, 2004.

MARIKA ZOLL, Plaintiff, -against- RUDER FINN, INC. and JORDACHE ENTERPRISES INC., Defendants; MARIKA ZOLL, Plaintiff, -against- JORDACHE ENTERPRISES INC. Defendants

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

The above captioned matters are consolidated and scheduled for trial commencing on March 22, 2004. This Order resolves numerous in limine motions brought by Plaintiff and Defendants on papers and orally at a hearing held on March 9, 2004. A transcript was made of this hearing and the Court will make reference to it in this Opinion. Page 2

The above captioned cases, Zoll I and Zoll II by docket date, have been the subject of numerous prior decisions by this Court and by Magistrate Judge Francis. See 2004 WL 405938 (S.D.N.Y., March 3, 2004); 2004 WL 42260 (S.D.N.Y., Jan. 7,2004); 2003 WL 22283830 (S.D.N.Y., Oct. 2, 2003); 2003 WL 1964054 (S.D.N.Y., April 24, 2003); 2002 WL 31873461 (S.D.N.Y., Dec. 24, 2002); 2002 WL 485733 (S.D.N.Y., March 29, 2002); 2002 WL 226692 (S.D.N.Y., Feb. 14, 2002); 2001 WL 1550943 (S.D.N.Y., Dec. 5, 2001). Familiarity with these decisions and the facts underlying these matters is assumed.

 I. Plaintiffs Claims for Damages

  Plaintiff has only two surviving claims, one for violations of New York Civil Rights Law §§ 50 and 51 and one for trespass under California common law. These claims derive from the production and distribution of two videotapes, labeled as Plaintiffs exhibits 21 and 23, and the display of exhibit 21 at a trade show in February 2001 (referred to at the hearing as the "Magic Show"). Both of these videotapes feature images of Plaintiff first recorded in 1978. Previously dismissed are claims arising from broadcasts of exhibit 23 and earlier broadcasts of the 1978 images in 1978, 1979, and 1997. After the hearing conducted on March 9, 2004 it is clear to the Court that some general clarification of law relating to Plaintiffs claims for damages is in order.

 A. Law Governing the Relevance of Sales Evidence in Relation to Claims for Damages

  It is important to provide some clarification of what law will guide the Court's evaluations of relevance with respect to evidence Plaintiff proposes to present in support of her claim for damages. Page 3

  Evidence showing an objective market value for the use of Plaintiff's images in exhibits 21 and 23 would, obviously, be relevant. Also potentially relevant would be evidence relating to sales of Jordache products. In order to demonstrate how such evidence might be evaluated for relevance at trial, it is useful to draw an analogy between the case at bar and copyright suits generally and copyright suits that pursue damages for "indirect profits" in particular. See. e.g., Davis v. Gap, Inc., 246 F.3d 152 (2d. Cir., 2001); Business Trends Analysts, Inc. v. Freedonia Group, Inc., 887 F.2d 399, 403 (2d. Cir., 1989); Burns v. Imagine Films Entm't, Inc., Copy. L Rep., 92-CV-243S, 2001 U.S. Dist. LEXIS 24653 (W.D.N.Y., August 23, 2001); Mackie v. Rieser, 296 F.3d 909 (9th Cir., 2002). While copyright cases are controlled by statute and Plaintiffs claims are under California common law, there is a close enough logical analogy between the two that the well-developed law in the copyright field can provide important guidance to the Court and the parties in this case.

  In a copyright action, a plaintiff may pursue as damages direct and indirect profits made by a defendant through the alleged violations. To make such a claim, however, a plaintiff must show a "causal connection between the infringement and the defendant's profits." Davis, 246 F.3d at 159. See also Mackie, 296 F.3d. at 915. Davis is particularly applicable in this case. There, the Second Circuit upheld the district court's grant of summary judgment in favor of defendant on plaintiffs claims for damages in the amount of defendant's gross profits. The court of appeals indicated that damages based on profits with a closer logical nexus to the alleged violations might have survived, but concluded that even this more conservative claim would have required a logical or evidentiary connection between the alleged violations and defendant's profits. Had this connection been made, the Second Circuit pointed out, the burden shifting Page 4 procedure set forth in 17 U.S.C. § 504(b) would have taken hold, requiring defendant to "prove its deductible expenses and elements of profits from those revenues attributable to factors other than the copyrighted work." Davis 246 F.3d at 160.

  While the copyright statute does not apply to this case, the factual analogy between this case and Davis, where a clothes manufacturer was alleged to have violated a copyright by using an image in advertising material, is very close indeed. The evidentiary standards imposed by the Second Circuit in Davis bear a sensible and logical resemblance to this case. Thus, the Court intends to conduct the trial commencing in this case on March 22, 2004 in a way broadly consistent with the standards and procedures described in Davis and the other cases cited above.

 B. Law Governing Plaintiff's Ability to Recover Damages under the New York Civil Rights Law

  Damages from claims based on New York Human Rights Law § 51 "are designed primarily to compensate for injury to feelings." Lerman v. Flynt Distributing Co., 745 F.2d 123, 141 (2d Cir., 1984). Under the law of this circuit, Plaintiff Zoll's potential recovery on her right to privacy claim under §§ 50 and 51 of the New York Civil Rights Law will, in all likelihood, be limited to a nominal amount. The Second Circuit made that plain in Lerman v. Flynt Distributing Co., 745 F.2d 123, 141 (2d Cir. 1984):

  In any event, damages under the New York statute often are only nominal since they are designed primarily to compensate for injury to feelings. See Lombardo v. Doyle. Dane and Bernbach, Inc., 58 A.D.2d 620, 621, 396 N.Y.S.2d 661 (2d Dep't 1997). Applying California law on facts somewhat analogous to those in the instant case, $25,000 was found to be "substantial compensation for mental anguish." Clark v. Celeb. Publ. Inc., 530 F. Supp. 979, 983 (SJXN.Y. 1981). See also Pirre v. Printing Developments, Inc., Page 5 468 F. Supp. 1028, 1038 (S.D.N.Y. 1979) (extremely sensitive plaintiff entitled to no more than $45,000 for mental anguish); Myers v. U.S. Camera Publ. Corp., 9 Misc.2d 765, 768, 167 N.Y.S.2d 771 (1957) ($1,500 total damages for publishing unauthorized full body nude photograph of plaintiff).

  In Lombardo, the first New York case the Second Circuit cited in Lerman, the Appellate Division said:

In New York there is a distinction between the statutory right which protects living persons from commercial exploitation of their names and pictures without their written consents, as embodied in sections 50 and 51 of the New York Civil Rights Law, and the common-law property right in one's public personality. The statutory right is deemed a `'right of privacy and is based upon the classic right of privacy's theoretical base, which is to prevent injury to feelings. Accordingly, in most cases where damages have been awarded under the Civil Rights law, they have been nominal.
58 A.D.2d at 621. Lombardo involved an advertising agency's unauthorized use in an advertisement of a look-alike actor who imitated the conducting style of a popular bandleader. Plaintiffs property interest claim was viable, the Appellate Division continued, because it alleged "that the imitation is completely unfair, amounts to a deception of the public, and thus exploits the respondent's property right in his public personality." Id. at 622.

  Subject to any particular proof that the Plaintiff may offer, it would seem that the amount of damages that Plaintiff may recover on her New York Civil Rights Law claim is limited and that the Court has supervisory responsibility to ensure that the final award is reasonable. See Lerman, 745 F.2d at 141 (reversing award of damages under §§ 50 and 51; "[i]t cannot seriously be contended that Ms. Lerman's lacerated feelings are worth anything close to $7 million."). Page 6

 II. Plaintiff's Motion to Amend the Complaint in Zoll II.

  In papers filed and served on March 9, 2004 Plaintiff seeks to amend her complaint in Zoll II by adding "conversion of her personal property" wherever trespass is alleged as a cause of action. March 9 Motion at 2. Plaintiffs motivation for this late change derives from Defendants' proposed jury instructions, which treat Plaintiffs trespass claims under California law as claims for tortious interference with rights in land. Id. at 1. Plaintiffs concern is that discussion of land rights and intrusion upon land will confuse the jury. Id. The Court agrees. In the Court's opinion, however, another amendment of the complaint is not necessary.

  It has been clear since at least October 2, 2003 that Plaintiffs trespass claims are for alleged violations of her rights of publicity. See Zoll v. Ruder Finn, 02 Civ. 3652, 2003 WL 22283830, at *10-*11 (S.D.N.Y., Oct. 2, 2003). "Trespass" is an accepted form of action to recover for violations of rights of publicity under California law. See, e.g., Winter v. DC Comics, 30 Cal.4th 881, 888 (Cal., 2003); Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 405 (Cal., 2001). Given this case law, there is no reason to accommodate another request to amend. The concerns shared by Plaintiff and the Court arising from Defendants' proposed jury charge can be remedied by appropriate jury instructions.

  Plaintiffs motion to amend is denied. By this Order, the parties are directed to file and serve modified proposed jury instructions consistent with this ruling by 12:00 noon on March 19, Page 7 2004.*fn1 Courtesy copies of these documents should be provided to chambers by the same deadline.

 III. Plaintiffs Motion to Testify as to the Value to Herself of Her Images

  Counsel for Plaintiff requests that she be allowed to testify "as to the value of her likeness, her images, to herself, assuming that [she] can't establish a market value" for the images. Tr. at 11. Counsel for Defendants concedes, indeed he asserts, that there is a market value for the 1978 images. Tr. at 12. He further concedes that this value is greater than zero. Tr. at 15. Defendants propose to present expert witness testimony relating to the market value of these images. Plaintiff is free to do the same. Assuming that reliable evidence establishing a market value for the 1978 images is made available to the jury at trial, there is no justification for Plaintiffs proposal that she be allowed to offer wholly subjective opinions on that question. Testimony of this sort would not provide the best evidence and would be both irrelevant and prejudicial. Plaintiffs motion is denied.

  This ruling does not purport to limit Plaintiffs ability to testify in support of her claim for damages under New York Civil Rights Law. Damage awards based on violations of New York Civil Rights Law § 51 "are designed primarily to compensate for injury to feelings." Lerman, 745 F.2d at 141. As a result, "[a]warding damages under New York Civil Rights Law § 51 and Page 8 similar statutes is a difficult question at best. Objective standards for measuring injury resulting from an invasion of privacy or an appropriation of one's name, likeness, or reputation are unlikely to be available." Big Seven Music Corp., 554 F.2d at 512. Plaintiff may, then, offer relevant testimony relating to the subjective effects on her of the uses of her images that are relevant in these actions. As a background matter, Plaintiff may also make reference, in this context only, to the 1997 commercials and her correspondence with Jordache relating to those commercials. Plaintiff may not comment on her reactions to these uses of her image or her reactions to any uses of the 1978 images other than those presented in exhibits 21 and 23.

 IV. Defendants' Motion to Preclude Evidence Relating to Jordache's Sales Numbers

  Counsel for Defendants moves under Federal Rules of Evidence 401, 402, and 403 to exclude from trial reference to and evidence of the value of Jordache Enterprises' gross sales, Tr. at 20-27,36, and the value of sales associated with Jordache's "Vintage Line."

  It is immediately apparent that the amounts of Jordache's sales to retailers have no possible relevance to Plaintiffs privacy claim under the New York statute, which creates a remedy for "injury to feelings" and can justify only nominal damages. See Lerman, 745 F.2d at 141 (reversing award of damages under §§ 50 and 51; "[i]t cannot seriously be contended that Ms. Lerman's lacerated feelings are worth anything close to $7 million."). Informing the jury about Jordache's multi-million dollar sales carries the unacceptable risk of misleading the jury into thinking that such impressive dollar amounts have some connection to the amount that Page 9 should be awarded for Plaintiffs "lacerated feelings," when in fact no such connection could exist.

  As for Plaintiffs publicity claim, the amount of Jordache's sales might be relevant if Plaintiff can show a causal connection between the Defendants' actionable unauthorized uses of her image and specific sales, a showing required by Second Circuit authority. See, e.g., Big Seven Music Corp., 554 F.2d at 510 ("In general damages may be recovered only if there is a necessary, immediate and direct causal connection between the wrongdoing and the damages."). In Big Seven Music, defendant John Lennon, the late Beatle, counterclaimed against the plaintiff music publisher on the theory that plaintiffs unauthorized release of a Lennon album diminished the sales of an album subsequently released by Lennon. The district court awarded Lennon damages based on a finding that Lennon's album "would have sold 100,000 more units (records or tapes) had the Levy album not been released." 554 F.2d at 508. The Second Circuit rejected that finding as clearly erroneous and reversed the damages award, commenting that "the evidence that release of the `Roots' album injured `Rock `n' Roll' sales in an amount as high as 100,000 units is very thin indeed.") Id. at 510. See also, Davis, 246 F.3d at 159 (upholding district court's decision to exclude evidence relating to defendant's gross profits on a claim for copyright violation*fn2 because plaintiff failed to show a "causal connection between the infringement and the defendant's profits.").

  Presentation at trial of Jordache's sales numbers, some of which are quite impressive, would also be highly and unfairly prejudicial to Defendants. Evidence of wealth alone invites the Page 10 jury to award Plaintiff sums based on the depth of Jordache's pockets, rather than on the value contributed to Defendants' businesses by the use of the 1978 images or actual losses suffered by Plaintiff. Without sufficient evidence linking Jordache's alleged success to Defendants' alleged wrongs, descriptions of what is in Jordache's wallet do not pass muster under Rule 403, F.R.Evid. See e.g. Lerman, 745 F.2d at 141 (discussing and demonstrating the risk of prejudice in jury awards for suits based on violations of rights to publicity and New York Civil Rights Law §§ 50 and 51.)

  Finally, reference to Jordache's sales numbers would pose a significant risk of confusing the jury. Plaintiffs surviving causes of action are limited to the production and distribution of exhibits 21 and 23 and the display of exhibit 21 at the "Magic Show." These were neither the only uses of the 1978 images by Jordache nor were these images the only elements of Jordache's marketing and advertisement plans. Without specific evidence linking Plaintiffs limited claims based on exhibits 21 and 23 to sales results, there is a significant risk that the jury will be misled and confused into concluding on speculation that these limited uses of the 1978 images are predominate or even significant causes of Jordache's successes or failures. This may be the case, but Plaintiff will need to prove that it is rather than just say so, or worse, imply that it is.

  The circumstances under which the amount of a defendant's sales would be probative of a plaintiffs property damages may be illustrated by a hypothetical case. Assume that an American bicycle manufacturer has had only modest commercial success, selling 50 bicycles a month to retailers for the totality of its business life. Two weeks after the famous bicyclist Lance Armstrong wins his sixth Tour de France, the manufacturer places in the national media an unauthorized and altered photograph depicting Armstrong, astride a bicycle bearing the Page 11 manufacturer's, flashing the V-for-victory sign. The manufacturer's monthly sales immediately increase to 1,000 bicycles per month, until Armstrong's counsel obtains an injunction against what the Lombardo court would call an illicit exploitation of Armstrong's "property right in his public personality." If these facts were proved, a jury could draw a reasonable inference about the value of Armstrong's property right, and consequently the amount of damages to which he would be entitled.

  In the case at bar, if comparable connective evidence is available to the Plaintiff, the volume of Jordache's sales to retailers may become probative on the issue of her damages on this claim. However, Plaintiff must demonstrate such a connection between the Defendants' actionable uses of her image and specific sales to allow evidence of sales volume to come before the jury. Until such a connection is established, Plaintiffs counsel is directed not to mention the amount of Jordache's sales in opening to the jury; Plaintiff is directed not to refer to the subject in her testimony; and documents evidencing the volume of Jordache's sales, including Plaintiffs exhibits 14, 16, and 19, will not be received into evidence.

  Plaintiff may move the Court to reconsider this ruling if she can present evidence making a direct connection between her surviving claims based on exhibits 21 and 23 and sales of Jordache products. Given this caveat, the parties are advised to proceed with their agreed upon plan to take the deposition testimony of Edward Benaderet. Page 12

 V. Defendants' Motion to Exclude the Testimony of Les Eisenstein

  Defendants move to exclude the testimony of Les Eisenstein. Tr. at 27. In response to this motion, Plaintiff withdrew Mr. Eisenstein as a witness. Tr. at 28. Defendants' motion is therefore denied as moot.

 VI. Defendants' Motion to Exclude Plaintiffs Exhibit 15

  Defendants move to exclude Plaintiffs exhibit 15 under Federal Rules of Evidence 402 and 802. Tr. at 28-29. The Court will reserve its ruling on this motion. Defendants should reassert their motion at trial if and when it is appropriate or necessary to do so.

  Defendants' Motion to Exclude Plaintiffs Exhibit 51

  Defendants move to exclude Plaintiffs exhibit 51 under Federal Rules of Evidence 402 and 403. Tr. at 32, 35. The Court will reserve its ruling on this motion. Defendants should reassert their motion at trial if and when it is appropriate or necessary to do so.

 VII. Defendants' Motion to Exclude Plaintiffs Exhibit 53

  Defendants move to exclude Plaintiffs exhibit 53 under Federal Rules of Evidence 402 and 802. Tr. at 33. During a colloquy with the Court, Defendants withdrew their motion based on Rule 802. Tr. at 34. The Court will reserve its ruling oh the remaining Rule 402 motion. Defendants should reassert their motion at trial if and when it is appropriate or necessary to do so. Page 13

 IX. Defendants' Motion to Exclude Plaintiffs Exhibit 52

  Defendants move to exclude Plaintiffs exhibit 52 under Federal Rules of Evidence 402 and 403. Tr. at 36. Plaintiffs exhibit 52 is a letter documenting the "top ten" retailers of Jordache products. This list is not relevant of itself. If Plaintiff can establish, by reliable evidence, that any of the retailers listed in the letter was exposed to or directly affected by the production and distribution of exhibit 21 or exhibit 23 or the display of exhibit 21 in February 2001, then that retailer's appearance on the list may become relevant. Absent such a foundation, however, exhibit 52 is irrelevant, prejudicial, and confusing for the same reasons discussed above in relation to the motion to exclude sales evidence. On this basis, Defendants' motion to exclude exhibit 52 is granted.

 X. Defendants' Motion to Exclude Plaintiffs Exhibit 64

  Defendants move to exclude Plaintiffs exhibit 64 under Federal Rule of Evidence 402. Tr. at 36-37. This motion was denied at the March 9, 2004 hearing. Tr. at 37. This Order does not disturb that ruling.

 XI. Defendants' Motion to Enter into Evidence the Deposition Testimony of Edward Benaderet

  At the March 9, 2004 hearing the Court granted on consent Defendants' motion to offer into evidence the deposition testimony of Edward Benaderet Tr. at 42. Given the Court's rulings in this Order pertaining to the exclusion of evidence relating to the value and volume of sales attributable to Jordache Defendants may elect not to offer into evidence either the testimony of Mr. Benaderet or Defendants' exhibit M, which is an accounting report produced by Mr. Page 14 Benaderet. The Court cannot advise Defendants on these questions. In the interest of prudence, however, the Court will remind the parties that its ruling to exclude evidence relating to sales may be challenged and reversed if Plaintiff is able to produce reliable evidence that supports a logical connection between her causes of action and Jordache sales numbers.

 XII. Defendants' Motion to Exclude References to Transportation Services Provided to Howard Goldstein by Defendants

  At the March 9, 2004 hearing Defendants moved to enter into evidence the deposition testimony of Howard Goldstein in lieu of his live testimony at trial. Tr. at 44. That motion was denied. Id. Defendants then moved to bar Plaintiff and Plaintiffs counsel from making reference to any transportation provisions Defendants might make for Mr. Goldstein in aid of his appearance to offer testimony at trial. Counsel for Plaintiff agreed that he would not refer to these arrangements. The Court grants Defendants1 motion on consent.

  It is SO ORDERED.


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