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United States District Court, S.D. New York

March 17, 2004.

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

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

Having considered the most recent submissions of counsel, the Court concludes that, while there was a surface appeal to directing the jury to decide as a separate, initial question the nature and extent of the release given to defendant Jordache by plaintiff Zoll, prior to the filming of the commercial in 1978, and placing the burden of proof on that question upon defendant, because the Page 2 release would appear to underlie the first and third affirmative defenses pleaded in the answer, such a procedure would run counter to the governing substantive law.

"In order to establish liability under New York's Civil Rights Law, plaintiff must demonstrate each of four elements: (i) usage of plaintiff's name, portrait, picture, or voice, (ii) within the State of New York, (iii) for purposes of advertising or trade, (iv) without plaintiff's written consent." Molina v. Phoenix Sound Inc., 297 A.D.2d 595, 597, 747 N.Y.S.2d 227 (1st. Dep't 2002) (emphasis added). Since the absence of plaintiff's written consent is an element that plaintiff must plead to state a claim under 51 and prove at trial to sustain that claim, the burden of proof properly falls upon her.

  Plaintiff's property claim under California common law is in the same posture. "A common law cause of action for appropriation of name or likeness may be pleaded by alleging (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury." Eastwood v. Superior Court of Los Angeles County, 149 Cal.App.3d 409, 417 (1983) (emphasis added). What plaintiff must allege to state a claim, she must also prove at trial to succeed upon it.

  Accordingly, the trial will proceed in the usual manner. Plaintiff will put on her case in chief, attempting to establish all the elements, including lack of consent to the usages of her image by Jordache that have survived the prior motion practice. Defendants will then offer their evidence. Whether plaintiff would be entitled to put in proof in rebuttal will depend upon whether or not she could have reasonably anticipated the need for such proof and included it in her case in chief. Page 3

  The contents of the form that plaintiff signed in 1978 will apparently be established by the testimony of witnesses, since no copy of the document presently exists. The rule in New York is that "a defendant's immunity from a claim for invasion of privacy is no broader than the consent executed to him." Shields v. Gross, 58 N.Y.2d 338, 347 (1983). Where the consent given by the plaintiff was unrestricted, no action may be maintained under New York Civil Rights Law ยง 51 for defendant's subsequent use of plaintiffs image. Id. at 341. Any limitations in the consent proved by the plaintiff will, if exceeded by the defendant, sustain plaintiff's claim under the statute. "Whether the limitation in the consent is as to time, form or forum, the use of a name, portrait or picture is without consent if it exceeds the limitation." Dzurenko v. Jordache, Inc., 59 N.Y.2d 788, 790 (1983). The Court will apply the same rules to the California common law property claim.

  In these circumstances, the order of proof at trial and the sequence of counsel's opening and closing statements will follow the customary practice.



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