687 N.Y.S.2d 551
Decided February 16, 1999
ELIZABETH H. EMERSON, J.S.C.
Civil Rights Law §51 authorizes a civil action for injunctive relief and damages where the name or likeness of any living person is used for advertising or trade purposes without the written consent of that person in violation of Civil Rights Law §50. Civil Rights Law §§ 50 and 51 "'were drafted narrowly to encompass only the commercial use of an individual's name or likeness and no more.'" A name 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. "Trade purposes" is more difficult to define, and involves use which would draw trade to the defendant. However, courts have carved out exceptions so that the statute does not apply to publications concerning newsworthy events.
Here, the web site in question was not a home page created by the defendants for the purpose of advertising or promotion. Rather, the record indicates that the defendants provided information at no cost to a third party which created web sites for arts organizations under the listing "www.arts-online.com". Thus, there is nothing in the record to indicate that the defendants were responsible for creating or maintaining the web site. Moreover, a web site on the Internet providing information about arts organizations is certainly a matter of some public interest. Even assuming, however, that the web site constitutes advertising or trade purposes within the meaning of the statute, it is well settled that where a reference to an individual is "'fleeting and incidental'", it will not be actionable under Civil Rights Law §51. Whether a particular use is incidental is determined through an assessment of the " 'relationship of the references to a particular individual "to the main purpose and subject of the [work in issue]." In this case, the plaintiff's name was not used in a manner directly related to the product or service. The plaintiff was not identified as a dancer or performer promoting the organization, but only as a contact person to call for additional information. Therefore, under these circumstances, any potential rewards for using the plaintiff's name were too remote and speculative to sustain her claim.
Accordingly, the defendants' motion for summary judgment is granted, the plaintiff's cross motion is denied and the complaint is dismissed.
CO259--Cyberlaw
Copyright © 2009 Dale A. Herbeck
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