The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
MEMORANDUM OPINION AND
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
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
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.
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 § 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
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