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Book cover not artwork, subject to right of publicity claim

By Rebecca Tushnet

Yasin v. Q-Boro Holdings, LLC, 2010 WL 1704889 (Table) (N.Y.Sup.), 2010 N.Y. Slip Op. 50742(U), No. 13259/09 (Apr. 23, 2010)

Tasleema Yasin sued over the use of a photo of her, without her consent, for the cover of a work of fiction, Baby Doll. In 2005, Yasin hired photographer Frank Antonio Aleman to take photos of her ?for the purpose of promoting her career as a singer and songwriter.? She signed no release. In 2008, she learned that her image was on the front cover of the book. (Defendants stated that the photographer had certified in writing that he had the necessary release.) She sued for commercial misappropriation under Civil Rights Law §§ 50 and 51, which bar using a person?s name, portrait or picture for advertising or trade purposes without first obtaining written consent.

Defendants argued that the picture wasn?t used for advertising or trade purposes, but was protected by the First Amendment. The court disagreed. The use here did not fall within the newsworthiness/public interest exception. There was no relationship between Yasin?s picture and the subject matter of the book, which was a pure work of fiction that in no way referenced her or used her as a character. Although the use of a person?s image in a work of art is constitutionally protected free speech, the photo here wasn?t ?artwork.? Rather, its use on the cover was ?purely for marketing and trade purposes; solely as a means to attract customers and generate sales.? Thus, the court granted a permanent injunction against further use of her image and summary judgment on the issue of liability.

Note: although the court cited Messenger v. Gruner & Jahr Printing & Publ?g, 94 N.Y.2d 436, 441 [2000], in explaining the cause of action, it did not discuss the facts of that case or distinguish it, creating at least an oddity: there?s a cause of action for appearing on the cover of an unrelated work of fiction, but not for appearing as an illustration of a newsworthy story that has nothing to do with the person depicted (as long as there?s a ?real relationship? between the picture and the story, which there can be even if the person is not part of the story)?even though it?s the latter that is more likely to cause people to draw false conclusions about the person depicted.

Full post as published by 43(B)log on May 07, 2010 (boomark / email).