The Second Department determined the complaint stated causes of action for violation of the right of privacy by the alleged use of plaintiff’s likeness in an advertising campaign. The Second Department, disagreeing with Supreme Court, held the cause of action alleging a purported common-law fight of publicity should have been dismissed because the right of privacy is exclusively statutory in New York:
We agree with the Supreme Court’s determination denying those branches of the defendant’s motion which were to dismiss the first and second causes of action, alleging violations of the plaintiff’s right of privacy and the related right of publicity, respectively, under Civil Rights Law §§ 50 and 51. Civil Rights Law § 50 prohibits “[a] person, firm or corporation” from using “for advertising purposes . . . the name, portrait or picture of any living person without having first obtained the written consent of such person.” “A name, portrait or picture is used for advertising purposes’ if it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service” … . Here, accepting the plaintiff’s allegations as true, which we must … , whether or not the subject image constituted a work of art, the first and second causes of action state cognizable causes of action under Civil Rights Law §§ 50 and 51 as they allege, inter alia, that the defendant used the plaintiff’s portrait, image, and likeness as Phantom Knoet in an advertising campaign, which included promotional merchandise to promote the defendant’s financial services and products … .
However, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the third cause of action, alleging a violation of a purported common-law right of publicity based on the defendant’s misappropriation of the plaintiff’s property right in her image and that of her persona Phantom Knoet. As the right of publicity is encompassed under the Civil Rights Law as an aspect of the right of privacy, which is exclusively statutory, there is no common-law right of publicity … . Darden v OneUnited Bank, 2020 NY Slip Op 04291, Second Dept 6-29-20