A standard model release, with respect to stock images, etc., may provide: "For valuable consideration, I hereby irrevocably consent to and authorize the use and reproduction by you, or anyone authorized by you, of any and all photographs which you have this day taken of me, negative or positive, proofs of which are hereto attached, for any purpose whatsoever, without further compensation to me. All negatives, together with the prints shall constitute your property, solely and completely.
Does "for any purpose whatsoever" mean "for any purpose"? Does "anyone authorized by you" mean "anyone"? Some well known models signed standard model/image releases to a third-party. Several New York strip clubs purchased the rights to use the photographs from the third-party for their strip clubs ads. The models brought an action against the strip clubs for misusing their images claiming that their images utilized for the adult entertainment industry damages their careers.
ELECTRA v. 59 MURRAY ENTERPRS., INC., Court of Appeals, 2nd Circuit February 9, 2021 (in part):
"Relying on the release agreements in the record, the district court concluded that Appellants had executed agreements releasing all their proprietary rights to the photographs and authorizing releasees to allow third parties to use the photographs for any purpose. The district court held that the release agreements disclaimed Appellants' rights to challenge the use of the photographs, barring Appellants' Section 51 claims. In a footnote, the district court suggested that though it did not need to address the question of whether the releases constituted "written consent" for purposes of Section 51, it was "inconsistent" with the statute "for plaintiffs that have signed unlimited releases to rely on the absence of written consent in pursuing damages under that statute." Toth, 2019 WL 95564 at *11 n.14.
Appellants contend that this was an error of law, arguing that Appellees lacked written consent from Appellants, the releasees, or anyone else to use the images; that Appellees were not third-party beneficiaries of the release agreements; and that the release agreements did not constitute written consent for purposes of Section 51. We agree.
Under New York law, "the terms of a contract may be enforced only by contracting parties or intended third-party beneficiaries of the contract . . . ." Rajamin v. Deutsche Bank Nat. Tr. Co., 757 F.3d 79, 86 (2d Cir. 2014). Here, both parties agree that the Club Companies and their contractors—including Brown, IMC, and Melange—were not parties to the releases, and that there are no other agreements between Appellants and the Club Companies or their contractors authorizing the use of the photographs. In addition, Appellees conceded during oral argument that the contractors secured no legal rights to use the photographs, such as through an assignment or license. Appellees and their contractors are plainly not third-party beneficiaries of the release agreements. See State of Cal. Pub. Emps.' Ret. Sys. v. Shearman & Sterling, 95 N.Y.2d 427, 434 (2000) (explaining that a "party asserting rights as a third-party beneficiary must establish," inter alia, "that the contract was intended for his benefit"). Appellees therefore had no legal rights under the releases or any subsequent agreement to use the images and cannot rely on the releases to bar Appellants' claims.
We further conclude that the releases are not written consent for purposes of Section 51. The text of the statute requires a party to have "written consent" to use the image, though it allows "sale or transfer" of the image "for use in a manner lawful under" Section 51. N.Y. Civ. Rights Law § 51. As case law demonstrates, written consent in favor of one party does not allow others to use an image for trade or advertising. See, e.g., Chambers v. Time Warner, No. 00-cv-2839, 2003 WL 749422, at *4 (S.D.N.Y. Mar. 5, 2003). This is true no matter how broadly an agreement releases proprietary rights to the releasee. In Rosemont Enterprises, Inc. v. Urban Systems, Inc., for example, the New York Supreme Court held—in an action under Section 51 brought by Howard Hughes against the maker of "The Howard Hughes Game"— that Hughes's "exclusive assignment of the right to exploit the Hughes name and personality" to another party did not defeat the claim. 340 N.Y.S.2d 144, 144, 147 (Sup. Ct. 1973), aff'd as modified, 345 N.Y.S.2d 17 (App. Div. 1st Dep't 1973). The court explained that Hughes was "free to protect himself from the exploitation of his name and likeness against all the world except [the assignee]. It is only between them will that assignment constitute a defense to a similar law suit." Id. at 147.
A cause of action under Section 51 does not depend on the proprietary rights a plaintiff has in a particular image. In Gautier v. Pro-Football, Inc., the Appellate Division explained that Section 51 provides "primarily a recovery for injury to the person, not to his property or business." 106 N.Y.S.2d 553, 560 (App. Div. 1st Dep't 1951), aff'd, 304 N.Y. 354. Gautier continued,
True, where an individual's right of privacy has been invaded there are certain other elements which may be taken into consideration in assessing the damages. Thus, where a cause of action under the Civil Rights statute has been established, damages may include recovery for a so-called `property' interest inherent and inextricably interwoven in the individual's personality, but it is the injury to the person not to the property which establishes the cause of action. That is the focal point of the statute.
Id. (citation omitted).[6] The district court's conclusion that the release agreements defeated Appellants' claims would construe Section 51 claims as coextensive with claims for breach of contract: only the releasees, who retained proprietary interest in the image, could sue. But this is wrong, even in this "modern era" of the internet. Cf. Gautier, 304 N.Y. at 360. "Section 51 of the Civil Rights Law was not enacted . . . to supplement causes of action based on contracts . . . ." Gautier, 106 N.Y.S.2d at 560-61.
Thus, Lee's and Mayes' releases in favor of Dreamgirl, Koren's release in favor of Gianatsis Design Associates, and Golden's release in favor of Leg Avenue do not constitute written consent for all others to use their images for purposes of advertising or trade. That their releases conveyed their proprietary rights to the photographs does not defeat their claims, because their cause of action under Section 51 is based on their statutory rights, not their proprietary rights in the photographs. And while the releases could provide a defense in an action against the releasees or those who could assert lawful use by reason of assignment or license, Appellees concede that they had no legal rights to the images. Appellants therefore have established that Appellees used their images without written consent, and they are entitled to summary judgment as to Appellees' liability under Section 51."
In the following article, NYLJ March 24, 2021, Release Did Not Grant Consent To Use Likeness Under Civil Rights Law, Tal S. Benschar, the author suggests:
"A release of an image intended for exploitation in commercial pro-motion must do more than license proprietary rights. Rather, it should specifically state that the model consents to the use of her image for the purposes of advertisement or trade by any party licensing the photograph. It should also recite that the model has received compensation for this right, and that the agreement is for the benefit of not only the photographer, but also any third party to whom the image is licensed. Of course, in some cases, this might require additional compensation to the model, either on a flat-fee basis or a per-use basis.
Businesses involved in use of images of models and other individuals should thus beware that they have rights that may be asserted, and that those rights are distinct from the photographers’ rights. Ensuring that both are covered before the advertisement is used can go a long way to insulating the business from expensive litigation."
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