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.
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.
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
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,
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
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
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