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Andretti v. Rolex Watch U.S.A., Inc.

56 N.Y.2d 284 Court N.Y. Decision date 1982-06-15 English

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Mario Andretti, Respondent, v Rolex Watch U.S.A., Inc., et al., Appellants.
Argued May 12, 1982;
decided June 15, 1982
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POINTS OF COUNSEL
Robert M. Callagy and George L. Mahoney for appellants.
I. Formal recognition of the right of publicity and its proper application to the facts of this case require a finding that Andretti does not have standing to maintain this action. (Roberson v Rochester Folding Box Co., 171 NY 538 ; Haelan Labs. v Topps Chewing Gum, 202 F2d 866 , 346 US 816 ; Koussevitzky v Allen, Towne & Heath, 188 Misc 479 , 272 App Div 759 ; Gautier v Pro-Football, Inc., 278 App Div 431 , 304 NY 354 ; Wood v Lucy, Lady Duff-Gordon, 222 NY 88 ; Madison Sq. Garden Corp. v Universal Pictures Co., 255 App Div 459 ; Zacchini v Scripps-Howard Broadcasting Co., 433 US 562 ; Time, Inc. v Hill, 385 US 374 ; Brinkley v Casablancas, 80 AD2d 428 .) II. It was error to grant Andretti’s motion for partial summary judgment as to defendants’ alleged liability. (McAdam v Ridge Press, 57 AD2d 763 ; Manger v Kree Inst. of Electrolysis, 233 F2d 5 ; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 27 NY2d 410 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 .)
Alfred S. Julien and William D. Fireman for respondent.
I. The court below correctly held that infringement of Andretti’s “right of publicity” is actionable under section 51 of the Civil Rights Law. (Brinkley v Casablancas, 80 AD2d 428 ; Gautier v Pro-Football, Inc., 304 NY 354 ; Haelan Labs. v Topps Chewing Gum, 202 F2d 866 , 346 US 816 ; Ali v Playgirl, Inc., 447 F Supp 723 ; Grant v Esquire, Inc., 367 F Supp 876 ; Rosenberg v Lee’s Carpet & Furniture Warehouse Outlet, 80 Misc 2d 479 ; Rosemont Enterprises v Urban Systems, 72 Misc 2d 788 , 42 AD2d 544 ; Time, Inc. v Hill, 385 US 374 ; Booth v Curtis Pub. Co., 15 AD2d 343 , 11 NY2d 907 ; Ladany v Morrow & Co., 465 F Supp 870 .) II.
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Andretti has standing to maintain this action. (Rosemont Enterprises v Urban Systems, 72 Misc 2d 788 , 42 AD2d 544 ; Yameta Co. v Capitol Records, 279 F Supp 582 .) III. The court below properly held that consent under section 51 of the Civil Rights Law must be in writing and that the photograph autographed by Andretti did not constitute such written consent. (Durgom v Columbia Broadcasting System, 29 Misc 2d 394 ; Miles v Sears, Roebuck & Co., 61 AD2d 929 ; Lomax v New Broadcasting Co., 18 AD2d 229 .) IV. Statute of Frauds principles are applicable; because the inscribed photograph is insufficient on its face as a written consent, it cannot be supplemented by parol evidence. (Felicie, Inc. v Leibovitz, 67 AD2d 656 ; Crabtree v Elizabeth Arden Sales Corp., 305 NY 48 ; Cohon & Co. v Russell, 29 AD2d 221 , 23 NY2d 569 ; Matter of Levin, 302 NY 535 ; Drake v Seaman, 97 NY 230 ; Poel v Brunswick-Balke-Collender Co. of N. Y., 216 NY 310 ; Dorman v Cohen, 66 AD2d 411 ; Lauter v W & J. Sloane, 417 F Supp 252 ; Mentz v Newwitter, 122 NY 491 ; Kobre v Instrument Systems Corp., 54 AD2d 625 , 43 NY2d 862 .)

OPINION OF THE COURT

This dispute arises out of the 1979 publication of two watch advertisements placed by defendant Rolex Watch U.S.A., Inc. The advertisements contained the name and picture of plaintiff, a well-known race car driver. Plaintiff sought recovery under section 51 of the Civil Rights Law, alleging that his name and picture were used in these advertisements without his written consent. Supreme Court denied plaintiff’s motion for partial summary judgment with respect to liability. The Appellate Division reversed and granted the motion ( 82 AD2d 765 ).

The Appellate Division erred in granting plaintiff’s motion. Section 51 of the Civil Rights Law, directly applicable to the instant case, permits an individual to recover damages if his or her name or likeness is used for advertising or trade purposes without the individual’s prior written consent (see Arrington v New York Times Co., 55 NY2d 433 , 439). The parties do not dispute that before the Rolex

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advertisements were published, plaintiff accepted a Rolex watch worth approximately $6,000 and acknowledged his membership in the “Rolex Club” in writing. Plaintiff sent the president of Rolex a photograph of himself with the handwritten inscription: “To Rene ... it’s good to be a member of your Rolex Club! All the best, Mario Andretti.” Whether this membership encompassed the use of plaintiff’s picture and name in Rolex advertisements, however, is the subject of sharply divergent recitations of the relevant events. Factual issues exist as to what membership in the Rolex Club entailed, i.e., whether plaintiff thereby consented to the use of his name and likeness in Rolex advertisements. Summary judgment for plaintiff on the issue of liability was therefore improper. Parol evidence may be introduced to establish that an equivocal writing signed by the subject of the photograph was intended as the expression of consent contemplated by the statute to the use of the name.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the order of Supreme Court, New York County, entered December 8,1980 reinstated. The question certified should be answered in the negative.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order, insofar as appealed from, reversed, etc.

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