HIV Portrayal | Too Romantic | No Car

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Woman May Sue Over Use of Her Picture In HIV Portrayal

Woman May Sue Over Use of Her Picture In HIV PortrayalRecently in Nolan v. Getty Images (US), Inc., a Court in Manhattan held that a Brooklyn woman depicted as an HIV victim in a State public service announcement may maintain a “right to privacy” lawsuit against the stock photo company who provided her picture to the State agency.

The defendant Getty is an image distributor. The plaintiff sued to recover compensatory and punitive damages pursuant to Civil Rights Law §§ 50 and 51 based upon a public service advertisement placed by the New York State Division of Human Rights, in a free, daily local paper AM NY, which displayed a full-color image of the plaintiff with the caption: “I am positive (+) and I have rights” and “People who are HIV positive are protected by the New York State Human Rights Law. Do you know your rights? Contact the NYS Division of Human Rights…” One could imagine her humiliation and apprehension that relatives, friends, potential romantic partners, business associates or bosses may have seen the advertisement implying she was infected with HIV.

In our last newsletter we explained that under New York law, there is no common-law right of privacy. However, our Civil Rights statute prohibits the use, for advertising or trade purposes, of the name, portrait, or picture of any living person without that person’s consent and provides a civil remedy for that conduct. The underlying purpose of law is to protect privacy without preventing publication of matters of public interest.

The amended complaint in this action alleged that the State licensed plaintiff’s image from Getty, which is in the business of licensing stock photographs on the Internet. Getty obtained the image from a photographer in accordance with Getty’s contributor agreement. The photographer, however, had no written model release from plaintiff to use or sell her image.

The Court rejected Getty’s motion to dismiss the complaint. It held that “[c]ontrary to Getty’s argument, a claim lies for placing [plaintiff’s] image in Getty’s catalog, especially where plaintiff’s photograph is ultimately used in an advertisement, and the use of plaintiff’s likeness created a false impression about plaintiff. Moreover, ‘[k]nowledge is not an element of the cause of action for compensatory damages or injunctive relief under the statute.’” Accepting the complaint’s allegations as true and affording plaintiff the benefit of every favorable inference as required by our procedural rules in New York, the Court held that the complaint sufficiently stated a cause of action under the Civil Rights Law. However, the Court posed the following issues that would need to be resolved in order to find liability:

In this case; whether [plaintiff] is a model, whether in fact a written release was signed by [her], whether Civil Rights Law §§ 50 and 51 required Getty to investigate the existence of a release signed by [plaintiff], whether the First Amendment protects Getty’s exploitation of [plaintiff’s] image without [plaintiff’s] written permission, whether Getty’s conduct qualifies as use of the image for either advertising or trade purposes, and whether Getty is able by agreement to shift to the end-user and the photographer the burden of obtaining [plaintiff’s] written consent, all must await further development of the facts, either by way of summary judgment or trial.

Romance Language Teachers – A Bit Too Romantic

Romance Language Teachers – A Bit Too RomanticIn a case that garnered quite a bit of media exposure, the termination of two teachers at the New York City Department of Education, a female French teacher and a female Spanish teacher, was overturned by a unanimous First Department Panel on March 20, 2014. Mauro v. Walcott, 115 A.D.3d 547 (1st Dept. 2014); Brito v. Walcott, 115 A.D.3d 544 (1st Dept. 2014).

The teachers were brought up on charges of misconduct after being observed by multiple non-student witnesses engaging in sexually inappropriate behavior in an upstairs classroom while a school musical competition was happening in the first floor auditorium. After an administrative hearing on the charges both teachers were terminated.

Separately, both teachers appealed their termination. Oddly enough, two different New York County Supreme Court justices came to two different conclusions based upon essentially an identical set of facts. Justice Torres upheld the hearing officer’s findings and the penalty of termination, while Justice Schlesinger vacated the hearing officer’s findings, remanded the matter for a new hearing and ordered the imposition of a lesser penalty. Appeals by the teacher and Department, respectively, resulted.

The First Department’s holding was not so inconsistent. It held that in both instances, the hearing officer’s finding on misconduct was supported by adequate evidence, and thus should not be disturbed. However, it held that “the penalty of termination [] is shockingly disproportionate to the [teachers’] misconduct,” and thus remanded both cases to the hearing officer for the imposition of a lesser penalty.

In support of this conclusion the First Department found that both teachers “were present at the school as [] audience member[s] and not in any official capacity. The incident involved [] consenting adult colleague[s] and was not observed by any student.” Both teachers had unblemished disciplinary records, and there was “no evidence that this incident, was anything but a one-time mistake.”

Of critical significance is that, unlike matters involving some sort of romantic involvement or other inappropriate conduct with a student, [these teachers] engaging in consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper. Indeed, lesser penalties have been imposed where a teacher had an ongoing relationship with or engaged in inappropriate behavior with a student.

No Release, No Car

No Release, No CarA municipality can seize a vehicle (or vessel) after making an arrest for certain crimes, such as operating a vehicle while intoxicated, operating without a license (with a prior conviction), or being engaged in a speed contest. The vehicle can be held pending resolution of a civil forfeiture proceeding by the municipality, but only after the owner is afforded a prompt hearing wherein the municipality establishes three elements, otherwise the vehicle must be returned to its owner. The municipality must show that: (1) probable cause existed for the defendant’s initial warrantless arrest; (2) it is likely to succeed on the merits of the forfeiture action; and (3) that the retention is necessary to preserve the vehicle from destruction or sale during the pendency of the proceeding. This post-seizure, pre-judgment hearing procedure was approved by a federal appeals court, and adopted into the Suffolk County Administrative Code as meeting the due process requirements of the Fourteenth Amendment of the United States Constitution.

The “due process clause” of the U.S. Constitution’s Fourteenth Amendment prohibits state and local government officials (i.e., state “actors”) from depriving persons of life, liberty or poverty without legislative authorization and without providing fair procedures.

In Suffolk County, despite no mention of such a requirement in its Code, a vehicle is not released to its owner unless the owner signs a general release, releasing the County from any and all liability. One resident, after being arrested for DWI, and the County having failed to meet its burden on all three elements, refused to sign this release, and thus his vehicle remained in the County’s possession. He challenged this policy as violative of his procedural and substantive due process rights under the Fourteenth Amendment. The County moved to dismiss the complaint. See, Fasciana v. County of Suffolk, 2014 WL 524466 (E.D.N.Y. 2014).

To prevail on a procedural due process claim, plaintiff must show that he “(1) had a protected liberty or property interest and (2) was deprived of that interest without due process.” It cannot be disputed that plaintiff, as title owner, has a protected property interest in his vehicle. The County disputes, however, that he was deprived “due process,” since he was afforded a hearing. The Court disagreed. Retention of the vehicle must be based only upon the three factors (listed above), and must not be contingent on any other factors, as such a contingency would nullify the hearing. The Court held that plaintiff properly stated a cause of action for procedural due process, in that “while the County . . . superficially compl[ies] with due process mandates, in practice such compliance is a sham.” The County’s motion to dismiss was denied in this regard.

Substantive due process claims, on the other hand, require a plaintiff to show that the government deprived him of a “fundamental right.” Traditional fundamental rights include such matters relating to marriage, family, procreation, and the right to bodily integrity. As a result, this portion of plaintiff’s claim was dismissed. “Substantive due process protects rights that are so rooted in the traditions and conscience of our people as to be ranked as fundamental.” It is well established, that plaintiff’s automobile, and the use and enjoyment he derives therefrom, are not fundamental rights. Thus, this claim was dismissed.

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