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Myskina v. Conde Nast Publ'ns, Inc. - 386 F. Supp. 2d 409 (S.D.N.Y. 2005)


Under New York law, common law unjust enrichment claims for unauthorized use of an image or likeness are subsumed by N.Y. Civ. Rights Law §§ 50 and 51. Likewise, New York law does not recognize common law misappropriation and negligence claims based on the same allegations. 


In 2002, plaintiff Anastasia Myskina, a Russian tennis player, agreed to take part in a photoshoot by defendants The Conde Nast Publications, Inc. ("Conde Nast") and its magazine Gentleman's Quarterly ("GQ"), Mark Seliger, a photographer, and Mark Seliger Studio. The photographs depicted Seliger as "Lady Godiva"—lying nude on the back of a horse. Before the shoot, Myskina signed a release in which she irrevocably consented to the use of her name and the pictures taken of her on that date Conde Nast and others it might authorize, for editorial purposes. Myskina claimed that she was photographed topless in blue jeans after Seliger finished with the Lady Godiva photographs, and further that he agreed that those photographs would not be published. Those photographs were later published in a Russian magazine in 2004. Myskina filed lawsuit against defendants in federal district court alleging violations of §§ 50 and 51 of New York Civil Rights Law, misappropriation, unjust enrichment, negligence, and breach of contract. She sought compensatory and exemplary damages, as well as injunctive relief restraining the sale and dissemination of the photographs at issue. Defendants filed a motion to dismiss the complaint or alternatively, for summary judgment.



Could Myskina recover damages for defendants' alleged violations of §§ 50 and 51 of New York Civil Rights Law or on her claims of misappropriation, unjust enrichment, negligence or breach of contract?




The court ruled that because the parties submitted affidavits and other exhibits, defendants' motion would be treated as one for summary judgment, and the court then granted the motion. The court held, inter alia, that: (1) Myskina's claims under N.Y. Civ. Rights Law §§ 50 and 51 failed because she signed a release allowing the unrestricted editorial use of her photographs by defendants, the alleged oral agreement between her and Seliger limiting Myskina's consent to publication of her photographs was barred by the parol evidence rule; (2) Seliger's syndication of the photographs to another magazine fell under the newsworthiness and public interest exceptions to N.Y. Civ. Rights Law §§ 50 and 51; (3) Myskina's breach of contract claim failed due to the signed release; (4) her misappropriation, unjust enrichment and negligence claims were subsumed by N.Y. Civ. Rights Law §§ 50 and 51, and; (5) Myskina was not entitled to amend her complaint to assert a breach of contract claim against Seliger due to its futility.

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