Here is a current litigation right out of Ed’s files.
Facts: A young “All American” handsome man and attractive woman carefully plan out their dream wedding. They are right out of central casting. Both bride and groom would be perfect and if this had been a “regular” commercial shoot, both would have been cast. But here neither is a professional model nor aspires to be one.
The ceremony was held at the bride’s family home with some intimate friends and family in attendance. The reception was held at Atlantis Marine World on Long Island. Atlantis is a sprawling upscale complex located out on Long Island and is comprised of The Long Island Aquarium (a major tourist attraction), catering facilities, a Hyatt hotel, a separate smaller boutique hotel, a marina and two gas stations.
Bride and groom arranged for a wedding photographer and their agreement makes it clear that no images from the wedding may be used by the photographer without written consent of any subject of any photo, except inclusion in the photographer’s portfolio. Advertising use being strictly prohibited without written consent from the subjects. As planned, a beautiful wedding ceremony was had at the bride’s family home, photographs were taken at a nearby beach, and later in the day festivities ensue at Atlantis. All goes well at the reception and as they say, a good time was had by all. There are no problems with the photographs or the photographer. But the story does not end there. If it did we’d have nothing to write about.
Many months later, the bride and groom come to learn that several of their wedding photos were being used in various media to advertise Atlantis. Additionally, photos taken on the beach, miles away from Atlantis, have been Photoshopped to make them appear to have been shot at Atlantis. The images among other things, falsely portray Atlantis has owning the beach where the images were shot. Those images and others are being used by Atlantis in a massive advertising and promotional campaign in media including but not limited to:
– TV commercials airing during shows like The Daily Show, The Colbert Report, Say Yes to the Dress;
– You Tube videos advertising Atlantis;
– direct mail postcards to engaged couples shopping for wedding venues;
– wedding trade shows;
– website(s) cross promoting various of Atlantis’ venues ie The Long Island Aquarium;
– full page print ad in Bridal Guide Magazine;
– multiple wedding websites such as Martha Stewart Weddings, Wedding Wire, Wedding Bee, The Knot, and others.
No permission for such use was sought or obtained from either half of the happy couple. Neither bride nor groom would have consented to such use in any event. NY law, as set out in The New York Civil Right Law Sections 50, 51, is crystal clear: a written consent by the person in the photograph is required to employ the use of a person’s photograph, image, portrait or likeness for trade or commercial purposes, prior to any such use. The failure to obtain such consent is a misdemeanor under Section 50 and the aggrieved person whose image was employed without consent may seek monetary relief, punitive damages if the use was “knowing”, and an injunction preventing use.
Representing the plaintiffs, Ed made a motion for “Summary Judgment”. In plain English, this is a request (rarely granted) for the Court to officially declare the plaintiffs “winners” and for permission to go to a jury to let it assess and determine how much money the plaintiffs should receive via compensatory and/or punitive damages.
This motion was made after depositions of all parties were taken, tons of documents produced and two oral arguments before judges in Kings County NY Supreme Court, were had. Rather than write an extensive decision, which the press likely would have preferred, the judge simply wrote two sentences, stating that the plaintiffs’ motion on liability is “hereby granted”, and that the damages will be determined by a jury. Liability as a matter of law has now been determined without the need for days of testimony establishing the violations of law. It is as if the judge told the plaintiffs “You win, you are right and as per your attorneys’ request a jury will decide what/how much you are entitled to”.
Now, this decision will not likely get any publicity because the judge did not recite all of the facts that people who happened to be in the courtroom during oral argument heard. Here, an upscale wedding facility who was paid in full for their services, simply elected to employ their customers wedding photos for their advertising… well, everywhere. It didn’t matter to the defendant that neither the bride nor groom were asked for permission or that NY Law specifically requires written permission. Fortunately it did matter to the judge.
The case will now go in front of a jury to determine what the nature and extent of what plaintiffs’ awards will be. The jury will be advised by a judge that the husband and wife have “won” and that it must determine how much they are entitled to whether by way of actual and/or punitive damages.
This is a big decision which upholds the clear requirements of NY law to get signed model releases for use of the photo of a person for trade or advertising purposes and it is just two sentences in length. Only practicing attorneys who were in the courthouse at the time of the decision know about the case and it was the subject of courthouse gossip given the rather interesting facts. The judge knew the law and that the defendant was liable under it. Brevity is the sole of wit and truth.
We will keep you posted. But your take away is get a signed release for any image that could/will be used for trade or commercial purposes. Better still, get a release all of the time because as Jack and I always say, “Ya’ never know”.