Essay

Cited: Cases On a pre-answer motion to dismiss, the Supreme Court must read the allegations of the complaint as true and give them every favorable inference. [2] Torts 379 354 379 Torts 379IV Privacy and Publicity 379IV(B) Privacy © 2008 Thomson Reuters/West. No Claim to Orig. U.S. Govt. Works. 181 Misc.2d 562 FOR EDUCATIONAL USE ONLY 181 Misc.2d 562, 693 N.Y.S.2d 897, 27 Media L. Rep. 2177, 1999 N.Y. Slip Op. 99348 181 Misc.2d 562, 693 N.Y.S.2d 897 Page 2 The substantive assertions of the complaint are that the defendants used the name and likeness of plaintiff Michael Costanza without his permission, that they invaded his privacy, that he was portrayed in a negative, humiliating light …*564. Plaintiff Michael Costanza asserts that the fictional character of George Costanza in the television program “Seinfeld” is based upon him. In the show, George Costanza is a long-time friend of the lead character, Jerry Seinfeld. He is constantly having problems with poor employment situations, disastrous romantic relationships, conflicts with his parents and general self-absorption. … Plaintiff Michael Costanza points to various similarities between himself and the character **899 George Costanza to bolster his claim that his name and likeness are being appropriated. He claims that, like him, George Costanza is short, fat, bald, that he knew Jerry Seinfeld from college purportedly as the character George Costanza did and they both came from Queens. Plaintiff Michael Costanza asserts that the self-centered nature and unreliability of the character George Costanza are attributed to him and this humiliates him. [1][2] The issues in this case come before the Court in the context of a pre-answer motion to dismiss. … [P]laintiff Michael Costanza 's claims for being placed in a false light and invasion of privacy must be dismissed. They cannot stand because New York law does not and never has allowed a common law claim for invasion of privacy, see Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993); Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 480 N.E.2d 349 (1985). As the New York Court of Appeals explained, “While legal scholarship has been influential in the development of a tort for intentional infliction of emotional distress, it has had less success in the development of a right to privacy in this State. In a famous law review article written more than a century ago, Samuel Warren and Louis Brandeis advocated a *565 tort for invasion of the right to privacy …. Relying in part on this article, Abigail Marie Roberson sued a flour company for using her picture, without consent, in the advertisement of its product (Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442). Finding a lack of support for the thesis of the Warren-Brandeis study, this Court, in a four to three decision, rejected plaintiff 's claim. “The Roberson decision was roundly criticized …. The Legislature responded by enacting the Nation 's first statutory right to privacy (L. 1903, ch. 132), now codified as sections 50 and 51 of the Civil Rights Law. Section 50 prohibits the use of a living person 's name, portrait or picture for “advertising” or “trade” purposes without prior written consent. … Section 50 provides criminal penalties and section 51 a private right of action for damages and injunctive relief.” Howell at 122-123, 596 N.Y.S.2d 350, 612 N.E.2d 699. In New York State, there is no common law right to privacy, see Freihofer at 140, 490 N.Y.S.2d 735, 480 N.E.2d 349, and any relief must be sought under the statute, Civil Rights Law § 50, 51. [3] The Court now turns to the assertion that plaintiff Michael Costanza 's name and likeness are being appropriated without his written consent. This claim faces several separate obstacles. First, defendants assert that plaintiff Michael Costanza has waived any claim by [personally] appearing on the show. [This defense fails because the] statute clearly provides that written consent is necessary for use of a person 's name or likeness, Kane v. Orange County Publications, 232 A.D.2d 526, 649 N.Y.S.2d 23 (2nd Dept.1996). However, defendants note the limited nature**900 of the relief provided by Civil Rights Law § 50, 51. It extends only to the use of a name or likeness for trade or advertising, see Freihofer at 140, 490 N.Y.S.2d 735, 480 N.E.2d 349. The sort of commercial exploitation prohibited and compensable if violated is solicitation for patronage, see Delan v. CBS, Inc., 91 A.D.2d 255, 458 N.Y.S.2d 608 (2nd Dept.1983). In a case similar to this lawsuit involving the play “Six Degrees of Separation”, it *566 was held that “works of fiction and satire do not fall within the narrow scope of the statutory phrases ‘advertising’ and ‘trade’,” see Hampton v. Guare, 195 A.D.2d 366, 600 N.Y.S.2d 57 (1st Dept. 1993). The Seinfeld television program was a fictional comedic presentation. It does not fall within the scope of trade or advertising …. [4] Plaintiff Michael Costanza 's claim for violation of Civil Rights Law § 50, 51 must be dismissed. …. N.Y.Sup.,1999. Costanza v. Seinfeld 181 Misc.2d 562, 693 N.Y.S.2d 897, 27 Media L. Rep. 2177, 1999 N.Y. Slip Op. 99348 END OF DOCUMENT © 2008 Thomson Reuters/West. No Claim to Orig. U.S. Govt. Works.