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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


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 ...

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