BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, January 24, 2003.)
A recent decision has upheld the validity of releases that the plaintiff claims were fraudulently obtained and were given for no consideration. The action pitted against each other Luke Weil and Jamie Johnson, heirs to the Autotote gaming empire and the Johnson & Johnson fortune, respectively.1
Johnson and three others produced a documentary entitled “Born Rich” about children, like himself, who had grown up very wealthy. One of the producers was quoted as saying “[t]o qualify for [the] film, [the] ‘rich kids’ [colloquially dubbed ‘inheritors’] had to know they could live lavishly without ever having to work a day in their lives.” Johnson approached Luke Weil, who was at the time a student at Brown University and over the age of 18. Weil signed three releases, all under the letterhead of Black River Films, Inc., with a Beverly Hills, California address. The first is undated, but allegedly signed on or around June 15, 2000, and the other two are dated August 12, 2000 and September 23, 2000, respectively.
The releases authorize Producer to photograph Weil, to own all copyright and other rights in all photography and recordings for use in perpetuity throughout the world and to license others to use the photography and recording in any manner that Producer wishes in connection with the Picture (the title of which is left blank in the releases.)
The fourth paragraph of the release provides as follows:
“I am granting these rights in exchange for good and valuable consideration, receipt of which is hereby acknowledged. I hereby waive any right to injunctive or other equitable relief in connection with the development, production, distribution or other exploitation of the Picture.”
Subsequently, Weil contended that when Johnson originally solicited his participation, he assured Weil that “the singular purpose and expected utilization of the interview was solely for non-commercial purposes and merely in furtherance of a school project.” The complaint which was filed states that “without any prior notice, the defendant, Jamie Johnson sheepishly, surreptitiously and in the vein of irrelevancy flashed a document in front of the plaintiff, Luke Weil, indicating that the plaintiff Luke Weil’s signature on said document was a prerequisite to the plaintiff’s effectuation of the interview to be used in his project and that said executed document was an irrelevant formality that needed to be disposed of.”
Weil also alleges that he was not given a copy of the releases and received no money in the way of consideration.
On September 4, 2002, Weil filed a lawsuit accompanied by an Order to Show Cause. He demanded, among other things (1) a declaration that the releases signed by him are nullities because they were fraudulently obtained; and (2) an injunction preventing release of the film. In his Order to Show Cause, he sought a preliminary injunction enjoining defendants from exploiting any filming involving Weil and from advertising, promoting and announcing that the film portrays Weil.
In rejecting plaintiff’s argument concerning fraud, the Court notes that Weil clearly was alerted to the fact that the enterprise was not a “student project,” but rather a commercial one undertaken by a professional studio based in Beverly Hills. The Court states: “It is well established that a plaintiff may not avoid his obligations under a clearly worded release on the ground that defendant falsely misrepresented the true significance of the document to him in order to secure his signature.” Here, the plaintiff is all the more bound because there is no allegation that he did not or could not read the plain language of the release. Further deflating Weil’s argument that he was tricked into signing the first release is the fact that he signed two identical releases in August and September 2000.
The Court also rejects plaintiff’s suggestion that his releases are invalid because he received no consideration therefor. It cites General Obligation Law 15-303 which provides that a release which is in writing and signed by the plaintiff cannot be invalidated for the absence of consideration alone. The decision notes parenthetically that plaintiff’s demand for adequate consideration suggests that his true remedy lies in a suit for money damages.
In summary, the three releases signed by plaintiff appear valid and binding on their face. His request for injunctive relief based upon the invalidity of the contracts is unlikely to succeed, especially given the provisions stating that plaintiff waives any right to injunctive or other equitable relief in connection with the exploitation of the film.
In his second cause of action and in his Order to Show Cause, plaintiff argues that he will be irreparably damaged if the picture containing footage of and about him is exploited by defendants for advertising and trade purposes because he is portrayed in an “inaccurate, inappropriate and undignified manner,” and is held up to public ridicule and contempt.
The Court also rejects this argument, stating that New York does not recognize a common law right of privacy. It refers to section 50 of the Civil Rights Law which makes it a misdemeanor for any person, firm or corporation to use a living person’s name portrait or picture for advertising or trade purposes without having first obtained the written consent of such person. It also cites section 51 which provides in pertinent part as follows:
“Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided [in section 50] may maintain an equitable action in the supreme court of the state…to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use…”
Although plaintiff did not invoke any of these sections in his complaint or Order to Show Cause, the Court indicates that these provisions must be read into his pleading because they represent the sole vehicle for redressing the alleged invasions of the right of privacy. In one sentence, the Court dismisses any such claim, noting that plaintiff signed three written consents to be filmed.
The decision then states that, if for the sake of argument, plaintiff’s releases were to be discounted, defendants still would prevail. It notes that the guiding principles in construing sections 50 and 51 are that they are to be narrowly construed and strictly limited to non-consensual, commercial appropriations of the name, portrait or picture of a living person. Also, they do not apply to reports of newsworthy events or matters of public interest. Newsworthiness is to be broadly construed to encompass, not only descriptions of actual events, but also articles concerning political happenings, social trends or any other subject of public interest. After citing examples in which courts have extended “newsworthiness” protection to a wide variety of publications, the Court states that “indeed what plaintiff seeks here is a prior restraint on defendants’ First Amendment right to distribute an informative sociological documentary of considerable ‘public interest’. Prior restraints of that sort are presumptively unconstitutional.”
To prevail on such an application, a plaintiff must demonstrate that his privacy interests outweigh First Amendment concerns. Under the present circumstances, plaintiff, having signed documents releasing his privacy rights on three occasions, cannot make such a demonstration.
Turning to a consideration of the requirements plaintiff would have to meet in order to obtain a preliminary injunction, the decision indicates that he is not likely to succeed on the merits. Suggesting that plaintiff and his family will be embarrassed by the film is not a sufficient indication of plaintiff’s being in imminent danger of suffering irreparable damage from the issuance of the picture. Rather, his proper remedy for defendants’ alleged abuse of their free speech rights is a civil claim for monetary damages.
1 Weil v. Johnson, N.Y.L.J. Volume 228, No. 80, October 25, 2002, Page 24, Column 1