THE STANDARD MODEL RELEASE IN ISSUE

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."

A NEIGHBOR'S SECURITY CAMERA AND CIVIL RIGHTS LAW

"Big Brother is watching you": 1984, George Orwell

Ienopoli v. Lent, NYLJ September 05, 2019, Date filed: 2019-08-19 Court: Supreme Court, Nassau; Judge: Justice Diccia Pineda-Kirwan; Case Number: 606251/19:

"Upon the foregoing cited papers, and after conference, it is ordered that this petition for an order directing respondents to remove or redirect their cameras, pursuant to New York Civil Rights Law §52-a, is determined as follows: Petitioners and respondents are neighbors residing at 9 Jerry Lane and 7 Jerry Lane, Glen Cove, New York, respectively. The parties’ properties abut and their backyards share a common fence line. Petitioners claim that respondents installed numerous cameras on their property aimed at petitioners’ property, including their backyard and windows, without petitioners’ consent. Petitioners believe that the cameras were installed with the intent to harass, annoy, and alarm them, or with the intent to threaten petitioners’ person or property.

New York Civil Rights Law §52-a gives an owner of residential real property “a private right of action for damages” against anyone “who installs or affixes a video imaging device” on property adjoining their residential real property with “the purpose of video taping or taking moving digital images of the recreational activities which occur in the backyard of the residential real property without the written consent thereto of such owner” when such action is taken “with intent to harass, annoy or alarm another person, or with intent to threaten the person or property of another person.”
The parties acknowledge that there have not been any cases guiding the application of New York Civil Rights Law §52-a. When interpreting a statute, courts must try to ascertain the Legislature’s intent, by first looking at the statute’s plain language (see Feinman v. Cty. of Nassau, 154 AD3d 739, 740 [2017]). Here, the statute states that it permits “a private right of action for damages.” In the instant matter, petitioners admittedly are not seeking damages but equitable relief in the form of an order directing respondents to redirect or move their cameras.

Additionally, when statutory language is ambiguous, the court may reference the statute’s legislative history (see Jackson v. Bank of Am., N.A., 149 AD3d 815, 821 [2017]). The Sponsors Memorandum for the bill explains the statute’s “[j]ustification” as closing a gap in Stephanie’s Law, which was enacted in 2003 after a woman discovered that she was being videotaped in her bedroom by her landlord (see NY Sponsor’s Mem, 2017, SB 870). Stephanie’s Law codified unlawful surveillance as a Class E felony, but did not have any restriction against video monitoring a neighbor’s backyard (see Id). New York Civil Rights Law §52-a was meant to address this deficiency, and the Sponsor’s Memorandum references an instance in which a family with young children was under constant video surveillance in their backyard by a neighbor who is a registered sex offender (see Id). The statute helps to ensure the rights of individuals to enjoy their backyards with a certain expectation of privacy and not be subjected to an adjoining landowner’s harassing or annoying behavior (see Id).

Here, petitioners submit, among other things, photographs of cameras on respondent’s property and the affidavit of Lina Ienopoli. It is impossible to discern from the photographs alone where the cameras are focused and if they indeed are aimed at petitioners’ windows and backyard as petitioners allege. Additionally, aside from Ms. Ienopoli’s bare statement that “[u]pon information and belief,” the cameras were installed “with the intent to harass, annoy or alarm…or with the intent to threaten the person or property of” petitioners, there is no evidence submitted to establish same.

Furthermore, in opposition, respondents submit, among other things, the affidavit of Christopher Lent. Mr. Lent states that he installed the cameras in January of 2019 after petitioner Francesco Ienopoli allegedly threatened him stating in sum and substance “You are this close to me burning your house down,” while putting his fingers close together as he said “this close.” Mr. Lent avers that he installed the cameras solely for the purpose of protecting his family and his property. He claims that the cameras do not tape or image petitioners’ backyard and were not installed to annoy, harass, or threaten petitioners.

It is evident that the relief petitioners seek is not provided for by the plain language of the statute. Additionally, petitioners fail to establish that respondents installed their cameras with the requisite intent prohibited by the statute. Lastly, both the incident that served as the impetus for Stephanie’s Law, and the one referenced in the Sponsors Memorandum, are clearly distinguishable from the instant matter. Nothing in the statute or the Sponsors Memorandum suggests that Civil Rights Law §52-a was enacted in any part to curtail the rights of property owners to secure their property through the use of security cameras. Thus, petitioners fail to establish their entitlement to an order directing the removal or redirection of respondents’ cameras."