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We have previously commented on the state of the law as it pertains to the unauthorized use of one's name and/or image--within the context of commercial television--and have expressed our disagreement with some recent appellate precedent on the subject. We are pleased to report that the tide may be turning (at least as far as the First Department is concerned).
In Nieves v. Home Box Office Inc, Ms. Chianti Nieves sued HBO (and others) for the unauthorized use of her image in a show about bounty hunters. We are advised that during the course of the program, Ms. Nieves's "sexual allure was crudely debated" by the show's cast. When Ms. Nieves later brought suit, HBO moved to dismiss the case, but the New York County Supreme Court denied the request. And on appeal, the Appellate Division, First Department, affirmed that denial.
Typically, when faced with a motion to dismiss, the allegations contained within a party's pleadings are assumed to be true and afforded a favorable inference, (except when the document is riddled with "legal conclusions," or there are clearly contradicted factual claims), and will usually be denied unless the moving papers can conclusively establish that the plaintiff does not have a case or "cause of action."
In this particular instance, HBO's motion was denied due to its failure to satisfy a two-pronged standard. First, according to the Appellate Division, First Department, HBO needed to show that the use of the image had a "real relationship" to the show's subject matter. Second, there had to be a demonstration that the claimant was "not 'singled out and unduly featured merely because [she was] on the scene'...."
The outcome of this case stands in stark contrast to the end result achieved in Walter v. NBC Television Network, Inc., wherein the Appellate Division, Fourth Department, summarily dismissed a comparable claim brought against comedian Jay Leno and The Tonight Show. In that dispute, Leno's unauthorized use of Ms. Walter's image, within the context of a comedy bit, was found to have fit within a "newsworthiness exception" which justified the case's dismissal.
Kudos to the A.D.1, for recognizing that the commercial exploitation of one's name and image is no laughing matter.
For a copy of the Appellate Division's decision in Nieves v. Home Box Office, Inc., please click on the following link:
For a copy of the Appellate Division's decision in Walter v. NBC Television Network, Inc., please click on the following link: