58 N.Y.2d 338 | NY | 1983
Lead Opinion
OPINION OF THE COURT
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 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. Special Term granted plaintiff a preliminary injunction. Although it determined that as a general proposition consents given by a parent pursuant to section 51 barred the infant’s action, it found that plaintiff’s claim that the consents were invalid or restricted the use of the photographs by Playboy Press presented questions of fact. After a nonjury trial the court
The parties have filed cross appeals. Defendant requests reinstatement of the trial court’s judgment. Plaintiff requests, in the alternative, that the order of the Appellate Division be modified by striking the limitation enjoining use only for purposes of advertising and trade, or that the order of the Appellate Division should be affirmed or, failing both of these, that a new trial be granted. Since the Appellate Division accepted the trial court’s findings that the consents were valid and unrestricted as to time and use, we are presented with only a narrow issue of law
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).
Thus, whereas in Roberson, the infant plaintiff had no cause of action against the advertiser under the common law for using her pictures, the new statute gives a cause of action to those similarly situated unless they have executed a consent or release in writing to the advertiser before use of the photographs. The statute acts to restrict an advertiser’s prior unrestrained common-law right to use another’s photograph until written consent is obtained. Once written consent is obtained, however, the photograph may be published as permitted by its terms (see Welch v Mr. Christmas, 57 NY2d 143).
Concededly, at common law an infant could disaffirm his written consent (see Joseph v Schatzkin, 259 NY 241; Casey v Rastel, 237 NY 305) or, for that matter, a consent executed by another on his or her behalf (see Lee v Silver, 262 App Div 149, affd 287 NY 575; Goldfinger v Doherty, 153 Misc 826, affd 244 App Div 779; Aborn v Janis, 62 Misc 95, affd 122 App Div 893). Notwithstanding these rules, it
Nor do we believe that the consents may be considered void because the parties failed to comply with the provisions of section 3-105 of the General Obligations Law requiring prior court approval of infants’ contracts. By its terms, section 3-105 applies only to performing artists, such as actors, musicians, dancers and professional athletes moreover, it is apparent by comparing other statutes with it that the Legislature knowingly has differentiated between child performers and child models. Thus, section 3229 (formerly § 3216-c) of the Education Law, which applies to “Child performers”, is referred to in section 3-105 (subd 2, par a) of the General Obligations Law but section 3230 of the Education Law, which applies to child models, is not. Child models are also recognized as a separate work classification in section 172 (subd 2, par f) of the Labor Law. Furthermore, section 3-105 was not designed to expand the rights of infants to disaffirm their contracts, as the concurring Justice at the Appellate Divi
Realistically, the procedures of prior court approval set forth in section 3-105, while entirely appropriate and necessary for performing artists and professional athletes, are impractical for a child model who, whether employed regularly or sporadically, works from session to session, sometimes for many different photographers. Moreover, they work for fees which are relatively modest when compared to those received" by actors or professional athletes who may be employed by one employer at considerably greater remuneration for a statutorily permissible three-year term. Indeed, the fee in this case was $450, hardly sufficient to warrant the elaborate court proceedings required by section 3-105 or to necessitate a court’s determination of what part should be set aside and preserved for the infant’s future needs. Nor do we think court approval necessary under the circumstances existing in the normal child model’s career. Given the nature of the employment, it is entirely reasonable for the Legislature to substitute the parents’ judgment and approval of what is best for their child for that of a court.
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. Thus, there is no need to discuss the unenforceability of certain contracts which violate public policy (see, e.g., Penal Law, § 235.00 et seq.) or to equate an infant’s common-law right
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).
The order of the Appellate Division should be modified by striking the further injunction against use of the photographs for uses of advertising and trade, and as so modified, the order should be affirmed.
The consents provided in pertinent part:
“I hereby give the photographer, his legal representatives, and assigns, those for whom the photographer is acting, and those acting with his permission, or his employees, the right and permission to copyright and/or use, reuse and/or publish, and republish photographic pictures or portraits of me, or in which I may be distorted in character, or form, in conjunction with my own or a fictitious name, on reproductions thereof in color, or black and white made through any media by the photographer at his studio or elsewhere, for any purpose whatsoever; including the use of any printed matter in conjunction therewith.
“I hereby waive any right to inspect or approve the finished photograph or advertising copy or printed matter that may be used in conjunction therewith or to the eventual use that it might be applied.”
Dissenting Opinion
(dissenting). Since I believe that the interests of society and this State in protecting its children must be placed above any concern for trade or commercialism, I am compelled to dissent. The State has the right and indeed the obligation to afford extraordinary protection to minors.
At the outset, it should be made clear that this case does not involve the undoing of a written consent given by a mother to invade her infant daughter’s privacy so as to affect prior benefits derived by a person relying on the validity of the consent pursuant to sections 50 and 51 of the Civil Rights Law. Rather, what is involved is the right of an infant, now 17 years of age, to disaffirm her mother’s consent with respect to future use of a nude photograph taken of her at age 10.
The majority holds, as a matter of law, not only in this case but as to all present and future consents executed by parents on behalf of children pursuant to sections 50 and 51 of the Civil Rights Law, that once a parent consents to the invasion of privacy of a child, the child is forever bound by that consent and may never disaffirm the continued invasion of his or her privacy, even where the continued invasion of the child’s privacy may cause the child enormous embarrassment, distress and humiliation.
I find this difficult to accept as a rational rule of law, particularly so when one considers that it has long been
This right has been upheld despite the fact that the minor held himself out to be an adult (Sternlieb v Normandie Nat. Securities Corp., supra) or that a parent also attempted to contractually bind the minor (Kaufman v American Youth Hostels, 13 Misc 2d 8, mod on other grounds 6 AD2d 223, mod and certified question answered in negative 5 NY2d 1016). Significantly, whether or not the minor can restore the other contracting party to the position he was in prior to entering the contract is pertinent only to the extent that the minor, by disaffirming the contract, cannot put himself into a better position than he was in before entering the contract. (Sternlieb v Normandie Nat. Securities Corp,, supra; Rice v Butler, supra,) In the past, this court has noted that those who contract with minors do so at their own peril. (Joseph v Schatzkin, supra, at p 243.)
Understandably, such a broad right has evolved as a result of the State’s policy to provide children with as much protection as possible against being taken advantage of or exploited by adults. “The right to rescind is a legal right established for the protection of the infant” (Green v Green, supra, at p 556). This right is founded in the legal concept that an infant is incapable of contracting because he does not understand the scope of his rights and he cannot appreciate the consequences and ramifications of his decisions. Furthermore, it is feared that as an infant he may well be under the complete influence of an adult or may be unable to act in any manner which would allow him to defend his rights and interests. (28 NY Jur, Infants, § 3, pp 221-222.) Allowing a minor the right to disaffirm a contract is merely one way the common law developed to
Can there be any question that the State has a compelling interest in protecting children? Indeed, the most priceless possessions we have in the Nation are our children. Recognizing this compelling interest in children, the State has assumed the role of parens patriae, undertaking with that role the responsibility of protecting children from their own inexperience. Acting in that capacity, the State has put the interests of minors above that of adults, organizations or businesses. (Rice v Butler, supra; Kaufman v American Youth Hostels, supra; Sternlieb v Normandie Nat. Securities Corp., supra.) The broad right given a minor to disaffirm a contract is, of course, an obvious example of the State’s attempt to afford an infant protection against exploitation by adults. (28 NY Jur, Infants, op. cit.) Thus, I am persuaded that, in this case, 17-year-old Brooke Shields should be afforded the right to disaffirm her mother’s consent to use a photograph of her in the nude, taken when she was 10 years old, unless it can be said, as the majority holds, that the Legislature intended to abrogate that right when it enacted sections 50 and 51 of the Civil Rights Law.
The legislative history of this statute enacted in the early 1900’s is understandably scarce. The case law prior to its passage, however, indicates that a minor’s right to disaffirm a contract under the common law was well established at that time. Additionally, it is well accepted that this statute was enacted in response to this court’s decision in Roberson v Rochester Folding Box Co. (171 NY 538; see, also, Arrington v New York Times Co., 55 NY2d 433, 439) in which the court held that a minor had no recourse against an entrepreneur who made commercial use out of her picture without her consent. Apparently, in order to alleviate litigation over whether or not consent had been given, the Legislature required that such consent be in writing and, if the person was a minor, that the parent sign the consent form. There is no indication that by requiring consent from the minor’s parents, the Legislature intended in any way to abrogate that minor’s right to disaffirm a contract at some future date. Indeed, the requirement of
Furthermore, nothing compels the majority’s conclusion that the right to disaffirm a contract was eliminated when the Legislature created a new cause of action for invasion of privacy merely because that statute provided safeguards for the child’s privacy by giving the parent the right to grant or withhold consent. When both rights are viewed, as I believe they must be, as protection for the child, logic and policy compels the conclusion that the two rights should exist coextensively. The requirement that a parent consent before the child’s privacy can be invaded by commercial interests establishes the parent as the first guardian of the child’s interest. But the State retains its long-standing role of parens patriae so that if the parent fails to protect the child’s interests, the State will intervene and do so. One means of doing so is to allow the child to exercise its right to disaffirm if the child concludes that its parent improvidently consented to the invasion of the child’s privacy interests. Given the strong policy concern of the State in
This conclusion is further supported by other statutes in which the Legislature has clearly abrogated the infant’s right to disaffirm a contract in those situations in which it has determined that the damage incurred by the minor will be minimal and the cost to the contracting party or society would be great. Invariably, these are contractual situations in which the minor has incurred a contractual obligation in order to receive a benefit which cannot be deemed anything other than a benefit. For example, section 281 of the Education Law negates a minor’s right to disaffirm a contract when that contract afforded him a student loan to pursue an advanced education. (See, also, General Obligations Law, § 3-103.) No one can argue that the contract was anything other than beneficial to the minor. Such legislation was endorsed by the Law Revision Commission on the basis of a legislative finding “that the type of contract involved is clearly for the benefit of the infant”. (1961 Report of NY Law Rev Comm, pp 269, 275, citing Touster, Contracts Relating to the Services of Talented Minors and the Treatment of Their Earnings Therefrom.)
Two factors distinguish sections 50 and 51 of the Civil Rights Law from those statutory provisions which do, in certain contexts, abolish the minor’s right to disaffirm a contract. The first is that in all cases when the Legislature
I do not believe that the Legislature’s intent in enacting sections 50 and 51 of the Civil Rights Law was to elevate the interests of business and commercialism above the State’s interest in protecting its children. Since this statute was enacted in response to this court’s decision in Roberson v Rochester Folding Box Co. (supra), which denied an infant plaintiff any recovery for the invasion of her privacy by a commercial enterprise in using her picture without her consent, it would seem to me that the legislative intent was to expand individual protections, rather than to afford protection to commercial enterprises.
The fact that when an infant disaffirms a contract there may be harsh results to the person or commercial enterprise attempting to exploit the child has never caused the courts to alter the scope of the protection that right affords the child. The overriding interest of society in protecting its children has long been held to outweigh the interests of merchants who attempt to contract with children. (Sternlieb v Normandie Nat. Securities Corp., supra, at p 250.)
In those situations in which the Legislature has decided that business ventures need additional protection, it has done so not merely by abolishing the infant’s right to disaffirm, but, rather, by providing alternative protection. Section 3-105 of the General Obligations Law provides for judicial approval of contracts for the services of child performers or professional athletes. It is clear that the
It is even more unfortunate that by its interpretation of sections 50 and 51 the majority takes away a large part of the protection those children had at common law.
Chief Judge Cooke and Judges Jones and Wachtler concur with Judge Simons; Judge Jasen dissents in part and votes to affirm in a separate opinion in which Judges Fuchsberg and Meyer concur.
Order modified, with costs to defendant, in accordance with the opinion herein and, as so modified, affirmed.
The discussion in this opinion of the policy behind affording a child the extraordinary protection of the right to disaffirm a contract should not be read, as the majority does, to equate the right to disaffirm with the principle that a court will refuse to enforce contracts which violate public policy. Indeed, had the courts below found that her mother had contracted for her daughter to pose in an obscene manner or that the photographs were obscene or pornographic, then we would not need to decide the applicability of the infant’s right to disaffirm that contract as I assume the majority would find the contract and the consent incorporated in it to violate public policy. (Penal Law, § 235.00 et seq.; People v Ferber, 52 NY2d 674 [Jasen, J., dissenting], revd 458 US_, 102 S Ct 3348, on remand 57 NY2d 256.) A contract held to be unenforceable because it violates public policy is void ab initio and, thus, there is no need to consider whether or not it may be disaffirmed.
