Shields v. Gross - 58 N.Y.2d 338, 461 N.Y.S.2d 254, 448 N.E.2d 108 (1983)

Rule:

N.Y. Civ. R. § 51 of the statute states that the prior written consent which will bar the civil action is to be as above provided, referring to § 50, and § 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.

Facts:

Plaintiff was 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". Before the photographic sessions, plaintiff's mother and legal guardian, Teri Shields, executed two consents in favor of defendant. 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 the present action in tort and contract seeking compensatory and punitive damages and an injunction permanently enjoining defendant from any further use of the photographs. The trial court dismissed the plaintiff’s complaint but granted plaintiff limited relief. On defendant's stipulation, it permanently enjoined defendant from using the photographs in pornographic magazines or publications whose appeal was of a predominantly prurient nature and it charged him with the duty of policing theit use. The Appellate Division, by a divided court, modified the judgment on the law and granted plaintiff a permanent injunction enjoining defendant from using the pictures for purposes of advertising or trade. The parties have filed cross appeals. 

Issue:

Could an infant model disaffirm a prior unrestricted consent executed on her behalf by her parent and maintain an action pursuant to N.Y. Civ. R. Law § 51 of the Civil Rights Law against her photographer for republication of photographs of her? 

Answer:

No.

Conclusion:

The court modified the lower court's order by striking the further injunction against the use of the photographs for advertising and trade purposes and, as modified, affirmed. The court held that the actress, as an infant plaintiff, was bound by the terms of the valid, unrestricted consents to the use of her photographs executed by her mother, which she could not disaffirm, and that no prior court approval of the contract with the photographer for the infant's services was required under N.Y. Gen. Ob. Law § 3-105 which did not apply to contracts for the services of infant professional models. Accordingly, the court modified and affirmed the lower court's decision.