Cohen v. Herbal Concepts, Inc.
472 N.E.2d 307, 482 N.Y.S.2d 457, 63 N.Y.2d 379 (1984)
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Rule of Law:
Under New York Civil Rights Law § 51, a photograph used for commercial purposes constitutes a 'portrait or picture' of a person, even if their face is not visible, provided they are capable of being identified from the photograph itself.
Facts:
- In July 1977, Susan Cohen and her four-year-old daughter, Samantha, were bathing nude in a stream on private property.
- Without their consent, photographer James Krieger took photographs of them.
- The photographs depicted their full-length bodies from a rear and side angle, but did not show their faces.
- Krieger sold one of the photographs to Herbal Concepts, Inc., which used it in magazine advertisements for a cellulite cream.
- The magazines were published by Conde Nast Publications, Inc., and Hearst Corporation.
- Ira Cohen, Susan's husband and Samantha's father, saw one of the advertisements and immediately recognized his wife and daughter.
Procedural Posture:
- The Cohen family sued James Krieger, Herbal Concepts, Inc., Conde Nast Publications, Inc., and Hearst Corporation in a New York trial court (Special Term).
- The trial court granted defendants' motion for summary judgment on the Cohens' defamation and derivative claims.
- Defendants then moved for summary judgment on the remaining invasion of privacy claims under Civil Rights Law § 51.
- The trial court granted the second motion for summary judgment, dismissing the complaint because it concluded the plaintiffs were not identifiable from the picture.
- The Cohens (plaintiffs-appellants) appealed to the intermediate appellate court, the Appellate Division.
- The Appellate Division reversed the trial court's order and reinstated the privacy claims.
- The Appellate Division then granted the magazine publishers, Hearst and Conde Nast (defendants-appellants), leave to appeal to the highest court of New York, the Court of Appeals.
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Issue:
Does a photograph used for advertising that does not show a person's face, but depicts their nude body from behind, constitute a 'portrait or picture' under New York Civil Rights Law § 51 if the person is identifiable from other physical characteristics?
Opinions:
Majority - Simons, J.
Yes, a photograph that does not show a person's face can still constitute a 'portrait or picture' under the statute if the person is recognizable from other features. The statute is designed to protect a person's identity, not just their facial image, and its use of the word 'picture' in addition to 'portrait' implies a broader scope. Whether a person is recognizable is generally a question for the jury. To survive a motion for summary judgment, a plaintiff must show that the person in the photograph is capable of being identified from the advertisement alone and that they have been so identified by someone. Here, identifying features such as hair, bone structure, body contours, and posture were visible. This, combined with an affidavit from plaintiff Ira Cohen stating he immediately recognized his wife and daughter, is sufficient to allow a jury to decide the question of identifiability.
Analysis:
This decision clarifies that the term 'portrait or picture' in New York's privacy statute is not limited to facial representations. It establishes that a right of privacy claim can proceed even if a subject's face is obscured, as long as other identifiable characteristics are present. This lowers the barrier for plaintiffs to survive summary judgment in such cases, shifting the factual question of 'recognizability' from the judge to the jury. The ruling broadens the scope of protection under § 51, making it more difficult for advertisers to use images of individuals without consent simply by avoiding a direct facial shot.
