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Keywords

plaintiffdefendantdamagesliabilitystatutemotionsummary judgmentcivil rightspunitive damagesmotion to dismiss

plaintiffdefendantliabilityappealmotionsummary judgmentcivil rights

Related Cases

Morse v. Studin, 283 A.D.2d 622, 725 N.Y.S.2d 93

Facts

The defendant, a plastic surgeon, performed three surgical procedures on the plaintiff, Darrell Morse. He allegedly used 'before and after' photographs of her in a newsletter mailed to his patients. The plaintiffs claimed that these photographs were used for advertising purposes without written consent, which is a violation of Civil Rights Law § 51.

The defendant is a plastic surgeon who performed three surgical procedures on the plaintiff Darrell Morse. He allegedly used “before and after” photographs of her in a “newsletter” mailed to his patients. The plaintiffs allege that these photographs were used for advertising purposes without written consent in violation of Civil Rights Law § 51.

Issue

Did the plastic surgeon violate Civil Rights Law § 51 by using the patient's photographs in a newsletter without her written consent?

Rule

A name, portrait or picture is used 'for advertising purposes' if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service.

“A name, portrait or picture is used ‘for advertising purposes' if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service.”

Analysis

The court found that the newsletter was distributed as a solicitation for the surgeon's medical practice, thus requiring patient consent for the use of her photographs. The defendant's argument that the newsletter was for educational purposes was contradicted by evidence that it included gift certificates for free consultations, indicating a promotional intent. Additionally, the claim that the patient orally modified her consent was insufficient to negate liability under the statute.

The plaintiffs established, as a matter of law, that the newsletter, taken in its entirety, was distributed as a solicitation for patronage of the defendant's medical practice.

Conclusion

The court modified the order to grant the plaintiffs' motion for partial summary judgment on the issue of liability and affirmed the denial of the defendant's motion to dismiss the claim for punitive damages.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the plaintiffs' motion for partial summary judgment on the issue of liability and substituting therefor a provision granting that motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs payable to the plaintiffs.

Who won?

The plaintiffs prevailed in the case because the court found that the surgeon's use of the photographs constituted a violation of Civil Rights Law § 51, as he failed to obtain proper consent.

The plaintiffs established, as a matter of law, that the newsletter, taken in its entirety, was distributed as a solicitation for patronage of the defendant's medical practice.

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