In honor of Hall of Fame Weekend at Cooperstown and the Mets return to first place in the National League East, today's weird (but true) legal cases takes on a baseball flavor and asks - can an apparel manufacturer who buys the right to a photo still be barred from using that photo on its merchandise? This was the question that the court needed to resolve in Shamsky v. Garan Inc., 167 Misc.2d 149, 632 N.Y.S.2d 930 (Sup. Ct. NY Cty 1995).
In Shamsky, the court examined a matter in which Garan, Inc. purchased the right to use a team photo of the 1969 Miracle Mets from the Baseball Hall of Fame. Garan proceded to use the photo on a jersey which also contained the name of the players and some statistical data.
As Garan had not sought permission from the players (nor paid them in all likelihood) for the use of their names and images, the players sued Garan under New York's Civil Rights Law §§50 and 51 to prevent the distribution of the shirts. As noted by the court, a violation of New York's Civil Rights law “consists of only two elements: the commercial use of a persons's name or photograph and the failure to procure the person's written consent for such use.”
In defending the lawsuit, Garan argued that under the players' contract with the Mets, they had waived any right to challenge the use of their names and likenesses. The relevant portion of the contract provided:
The court did not accept Garan's argument for three reasons. Initially, the court explained that "it is arguable [under the contract] that the team can only use the picture for publicity purposes, which is not what was done here." Secondly, the court explained that the second sentence of [the relvant portion of the contract]clearly contemplates that each player retains the right to commercial exploitation of his identity (albeit this right is restricted during “the playing season”). It is common knowledge that sports personalities retain the right to make commercial endorsements, etc., and do not cede this right to their teams."
Finally the court noted that:
If you have seen this post being carried on another site such as JBlog, please feel free to click here to find other articles on the kosherbeers blogsite. Hey its free and you can push my counter numbers up!
In Shamsky, the court examined a matter in which Garan, Inc. purchased the right to use a team photo of the 1969 Miracle Mets from the Baseball Hall of Fame. Garan proceded to use the photo on a jersey which also contained the name of the players and some statistical data.
As Garan had not sought permission from the players (nor paid them in all likelihood) for the use of their names and images, the players sued Garan under New York's Civil Rights Law §§50 and 51 to prevent the distribution of the shirts. As noted by the court, a violation of New York's Civil Rights law “consists of only two elements: the commercial use of a persons's name or photograph and the failure to procure the person's written consent for such use.”
In defending the lawsuit, Garan argued that under the players' contract with the Mets, they had waived any right to challenge the use of their names and likenesses. The relevant portion of the contract provided:
The Player agrees that his picture may be taken for still photographs, motion pictures or television at such times as the Club may designate and agrees that all rights in such pictures shall belong to the Club and may be used by the Club for publicity purposes ... The player further agrees that during the playing season he will not make public appearances, participate in radio or television programs or permit his picture to be taken ... or sponsor commercial products without the written consent of the Club, which shall not be withheld except in the reasonable interests of the Club....
The court did not accept Garan's argument for three reasons. Initially, the court explained that "it is arguable [under the contract] that the team can only use the picture for publicity purposes, which is not what was done here." Secondly, the court explained that the second sentence of [the relvant portion of the contract]clearly contemplates that each player retains the right to commercial exploitation of his identity (albeit this right is restricted during “the playing season”). It is common knowledge that sports personalities retain the right to make commercial endorsements, etc., and do not cede this right to their teams."
Finally the court noted that:
the players are not seeking to assert a right “in the picture”; they are seeking to assert a right to the commercial exploitation of their identities. Clearly the team could not crop one player's picture from the 1969 Mets Team Photo and use it to sell breakfast cereal or running shoes. In Cohen v. Herbal Concepts, 63 N.Y.2d 379, 384, 482 N.Y.S.2d 457, 472 N.E.2d 307 (1984), the court stated that Civil Rights Law §§ 50, 51 are “designed to protect a person's identity, not merely a property interest in his or her ‘name’, ‘portrait’ or ‘picture’....” Thus as a matter of contract interpretation plaintiffs did not authorize the Mets Ballclub to use the 1969 Mets Team Photo in contravention of what would otherwise be plaintiffs' personal, respective rights to publicity.
If you have seen this post being carried on another site such as JBlog, please feel free to click here to find other articles on the kosherbeers blogsite. Hey its free and you can push my counter numbers up!
No comments:
Post a Comment