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Shields v. Gross , 58 N.Y.2d 338, 448 N.E.2d 108, 461 N.Y.S.2d 254, 9 Media L. Rep. 1466 (N.Y. 1983)

This case illustrates several important aspects related to consent and commercial use:


The infant plaintiff cannot maintain an action pursuant to section 51 of the Civil Rights Law to recover damages for the republication of nonpornographic nude photographs of plaintiff, taken by defendant photographer when plaintiff was a professional model, or enjoin future use of the photographs in nonpornographic publications, since plaintiff's parent executed prior unrestricted consents for use of the photographs in favor of defendant, which consents are valid under the statute and may not be disaffirmed by the infant; furthermore, the consents are not void because the parties failed to comply with the provisions of section 3-105 of the General Obligations Law requiring prior court approval of certain contracts for the services of infant artistic performers, as contracts involving infant professional models do not fall within said statute.

Case History:

Special Term found that the photographs were not pornographic and, on defendant's stipulation, permanently enjoined defendant from using the photographs in pornographic publications. The Appellate Division modified the judgment and granted plaintiff an injunction permanently enjoining defendant from using the pictures for purposes of advertising or trade. Special Term found that the consents executed by plaintiff's mother were valid and unrestricted as to time and use, which findings were accepted by the Appellate Division.

The Court of Appeals modified the Appellate Division order by striking the further injunction against the use of the photographs for advertising and trade purposes and, as modified, affirmed, holding, in an opinion by Judge Simons, that the infant plaintiff is bound by the terms of the valid, unrestricted consents to the use of her photographs executed by her mother, which she may not disaffirm, and that no prior court approval of the contract with defendant for the infant's services was required under section 3-105 of the General Obligations Law, which does not apply to contracts for the services of infant professional models. Shields v Gross, 88 AD2d 846.

Court of Appeals ruling:

Order modified, with costs to defendant, in accordance with the opinion herein and, as so modified, affirmed.

Court of Appeals opinion:

Judge Simons (Chief Judge Cooke and Judges Jones and Wachtler concur):

The issue on this appeal is whether an infant model may disaffirm a prior unrestricted consent executed on her behalf by her parent and maintain an action pursuant to section 51 of the Civil Rights Law against her photographer for republication of photographs of her. We hold that she may not.

Plaintiff is now a well-known actress. For many years prior to these events she had been a child model and in 1975, when she was 10 years of age, she obtained several modeling jobs with defendant through her agent, the Ford Model Agency. One of the jobs, a series of photographs to be financed by Playboy Press, required plaintiff to pose nude in a bathtub. It was intended that these photos would be used in a publication entitled "Portfolio 8" (later renamed "Sugar and Spice"). Before the photographic sessions, plaintiff's mother and legal guardian, Teri Shields, executed two consents in favor of defendant. * After the pictures were taken, they were used not only in "Sugar and Spice" but also, to the knowledge of plaintiff and her mother, in other publications and in a display of larger-than-life photo enlargements in the windows of a store on Fifth Avenue in New York City. Indeed, plaintiff subsequently used the photos in a book that she published about herself and to do so her mother obtained an authorization from defendant to use them. Over the years defendant has also photographed plaintiff for Penthouse Magazine, New York Magazine and for advertising by the Courtauldts and Avon companies.

In 1980 plaintiff learned that several of the 1975 photographs had appeared in a French magazine called "Photo" and, disturbed by that publication and by information that defendant intended others, she attempted to buy the negatives. In 1981, she commenced this action in tort and contract seeking compensatory and punitive damages and an injunction permanently enjoining defendant from any further use of the photographs....

Historically, New York common law did not recognize a cause of action for invasion of privacy ( Arrington v New York Times Co., 55 NY2d 433; Roberson v Rochester Folding Box Co., 171 NY 538). In 1909, however, responding to the Roberson decision, the Legislature enacted sections 50 and 51 of the Civil Rights Law. Section 50 is penal and makes it a misdemeanor to use a living person's name, portrait or picture for advertising purposes without prior "written consent". Section 51 is remedial and creates a related civil cause of action on behalf of the injured party permitting relief by injunction or damages (see Arrington v New York Times Co., supra, at p 439; Flores v Mosler Safe Co., 7 NY2d 276, 280). Section 51 of the statute states that the prior "written consent" which will bar the civil action is to be as "above provided", referring to section 50, and section 50, in turn, provides that: "A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor" (emphasis added). ...

It should be noted that plaintiff did not contend that the photographs were obscene or pornographic. Her only complaint was that she was embarrassed because "they [the photographs] are not me now." The trial court specifically found that the photographs were not pornographic and it enjoined use of them in pornographic publications....

Finally, it is claimed that the application of the statute as we interpret it may result in unanticipated and untoward consequences. If that be so, there is an obvious remedy. A parent who wishes to limit the publicity and exposure of her child need only limit the use authorized in the consent, for a defendant's immunity from a claim for invasion of privacy is no broader than the consent executed to him (see Welch v Mr. Christmas, 57 NY2d 143, supra; Adrian v Unterman, 281 App Div 81, affd 306 NY 771).


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