Look “Innocent But Sexy”

A Jane Doe lawsuit against a high-profile modeling agency has survived dismissal in part by an order of the New York Appellate Division for the First Judicial Department

The order of the Supreme Court, New York County (Laurence L. Love, J.), entered on or about October 11, 2002, which, insofar as appealed from as limited by the briefs, granted defendants’ motions to dismiss, should be modified, on the law, to deny the motion of defendant Wilhelmina Models, Inc. as to the third and fifth causes of action alleging negligence, breach of fiduciary duty and invasion of privacy, and to deny the motion of defendants Cal Tan, LLC and New Sunshine, LLC as to the second cause of action alleging invasion of privacy, and otherwise affirmed, without costs.

The allegations

The second amended complaint of plaintiff, a then-aspiring model, alleges causes of action against two sets of defendants. As against Wilhelmina Models, Inc., the modeling agency that represented her, the claims arise from the conduct of photographers at several photoshoots, occurring when she was 17 years old. As against Cal Tan, LLC and New Sunshine, LLC (collectively, Cal Tan), a seller of suntanning products that hired plaintiff as a model for a print marketing campaign, the claims arise from the conduct of the photography crew at a photoshoot in Mexico, occurring when she was 16 years old. The complaint further includes allegations, as to both defendants, that plaintiff was touched inappropriately by persons participating in these photoshoots. As against both defendants, the complaint alleges a cause of action for invasion of privacy and a cause of action denominated “negligence and breach of fiduciary duty.” Plaintiff alleges an additional cause of action against Wilhelmina for sexual harassment. As to both defendants, for the purposes of revival under CPLR 214-g, plaintiff alleges that their conduct constituted both Penal Law article 130 offenses and a sexual performance under Penal Law § 263.05.

Specifics

Plaintiff’s allegations as to Cal Tan include that she was “instructed . . . to arch her back and look at the camera ‘sexy,’ ‘like a lover,’ and think about doing ‘naughty things with your boyfriend,'” and that the photographs generated from the photoshoot “included ones in which Doe was depicted topless with her back arched in a sexually suggestive pose; looking out to the sea in a sultry manner; in which she was completely topless and ‘naked in the water’; where she is posed suggesting a willingness to engage in sexual activity; and where Doe is standing on a roof, semi- or totally naked.”

As to Wilhelmina, plaintiff alleged that at one photoshoot, “[s]he was photographed in [see-through lingerie] with another girl, also wearing see-through lingerie, together in bed. Doe and the other underage model wore coy expressions, as if together they had been doing something naughty, or sexual;” at another photoshoot, where plaintiff was unclothed, she was “instructed . . . to look ‘innocent, but sexy’ for some photos, and like a ‘bad girl’ for others”; and that at a third photoshoot she “was made to sit nude on a bed with a white sheet covering part, but not all, of her breast and buttocks.”

Pleading sufficient

At the pleading stage, as to both defendants, we find that a reasonable inference to be drawn from plaintiff’s allegations regarding the photographing of her while she was unclothed is that the resulting photographs may have captured plaintiff’s genitalia, thus satisfying the “sexual conduct” component of a Penal Law § 263.05 sexual performance. It is not merely the allegation of nudity that suffices, but the permissible inference that nudity occasioned the exhibition of genitalia, lewdly, in a photographic performance. We need not and do not reach whether plaintiff will ultimately be successful (see Leon, 84 NY2d at 89), and at this stage, in light of the allegations contained in the complaint and the reasonable inferences to be drawn therefrom, we need not confine our analysis of the allegations to photographs that were ultimately used in Cal Tan’s marketing campaign, as submitted on the appeal.

(Mike Frisch)