Fashionable Use

A fashion model who asserted claims against Ralph Lauren Corp. and HBO had the dismissal of the case affirmed by the New York Appellate Division for the First Judicial Department

Plaintiff, a fashion model, alleges that she was featured without her permission in Very Ralph, a documentary film about designer Ralph Lauren. Plaintiff also alleges that she was featured, again without her permission, in the trailer for the documentary, which aired on HBO’s cable TV network and internet streaming services. As relevant to this appeal, plaintiff commenced this action against HBO, alleging that it knowingly, and without her consent, used her image in the film for advertising and trade purposes in violation of Civil Rights Law §§ 50 and 51

No liability

Plaintiff, who acknowledges the film is a “documentary about Ralph Lauren,” fails to allege any facts to support her conclusory assertion that the film is a disguised advertisement for defendant Ralph Lauren Corp. Further, plaintiff does not show that the matters as to which she claims to need discovery – any Ralph Lauren/HBO agreements, including profit-sharing agreements, regarding the film – would advance her position, as it is the “content” of the work, rather than a defendant’s profit from it, that bears on whether “a newsworthy use, as opposed to a trade usage” is at issue for
purposes of section 51 (Stephano, 64 NY2d at 184-185; see Ward, 10 Misc 3d at 654).

Supreme Court also properly dismissed the action as against HBO on grounds that, to the extent the film uses plaintiff’s image, it does so in an “isolated,” or “fleeting and incidental” manner. Such uses, “even if unauthorized, are insufficient to establish liability” under section 51

(Mike Frisch)