- Sex Tape Used In “Rap War” Was For Trade Purposes
- Furtive Videotaping Violated Woman’s Privacy
- Employer of Injured Undocumented Alien Gets Workers’ Comp. Protection
Sex Tape Used In “Rap War” Was For Trade Purposes
In Leviston v. Jackson, 980 N.Y.S.2d 716 (Sup. Ct., N.Y. Cnty. 2013), a State Supreme Court recently held that rapper Curtis “50 Cent” Jackson’s posting of a sexually explicit videotape, involving a former girlfriend of his competitor “Rick Ross” (and the mother of Rick Ross’ youngest daughter) in an ongoing “rap war,” qualified as “trade purposes,” under New York’s right to privacy law.
Under New York law, there is no common-law right of privacy or publicity, and our Civil Rights statute prohibiting use, for advertising or trade purposes, of the name, portrait, or picture of any living person without that person’s consent is the only available remedy. The underlying purpose of law is to protect privacy without preventing publication of matters of public interest.
Here, the former girlfriend depicted in the sexually explicit videotape filed a suit against Jackson for violations of the Civil Rights Law. In order to establish a claim under Civil Rights Law §§ 50 and 51, the Court explained a plaintiff must demonstrate that the defendant used the plaintiff’s name, portrait, picture or voice in the State of New York for purposes of advertising or trade, without the plaintiff’s written permission. Civil Rights Law § 51 authorizes a civil action for injunctive relief and damages, including exemplary damages if the defendant acts knowingly in violation of that protection. However, a plaintiff cannot recover under Section 51 if the use to which his or her image was put is in the context of reporting a newsworthy incident, even if it also serves a trade purpose. Although here Jackson claimed this defense, the Court, not surprisingly, concluded that “it cannot be said that the dissemination of an explicit sexual videotape was newsworthy, despite defendant’s argument to the contrary.”
It turns out that the former girlfriend and a nonparty filmed themselves having sex at an apartment in New Jersey using the nonparty’s video camera. According to the plaintiff, the two had agreed that the videotape would be “kept private, just for their own use.” Apparently once the couple broke up, so did the agreement. The nonparty gave the videotape to the defendant who converted it into digital format and injected his character into the videotape and performed a “skit” mocking his rival and his rival’s former girlfriend in furtherance of the “war” efforts.
As Jackson described it in his deposition, “rap wars or beefs, are common in the rap and hip-hop culture, and involve irritating other artists to create more interest, develop more awareness for themselves and create competition, or battles, as to who can create material up to the standard quickly.”
In addressing the first issue of whether Jackson was using the plaintiff’s picture for advertising purposes, the Court concluded that the defendant “did not use it to solicit patronage nor did he use it to advertise or promote his music.” There was no allegation that Jackson had profited off of the video or that he charged anyone to view the videotape. Apparently, there were no war bonds sold.
As for the second issue of whether use of plaintiff’s picture was for “trade purposes,” after extensively reviewing the facts surrounding the “rap war,” the Court concluded that there was evidence “that the posting of the videotape on the websites generated interest in [the defendant.] The record reveals that [the defendant] had an ongoing rap war with [his rival], and used it to generate interest in himself to attract viewers to his website, which qualifies as a trade purpose.”
Furtive Videotaping Violated Woman’s Privacy
Yes, yet another sexual tape case. In People v. Schreier, our State’s highest court was faced with the issue of whether there was legally sufficient evidence to support defendant’s conviction for the crime of “unlawful surveillance” in the second degree (Penal Law § 250.45).
Early in the morning on Christmas Eve the defendant stood outside the front door of his neighbor’s townhouse and used his compact video camera to film her while she was naked in her second floor bathroom. She just came out of the shower and opened the bathroom door to allow the steam to dissipate and to hear if her sleeping child had awoke. The defendant recorded her for several minutes as she saw to her personal hygiene. He used the camera’s zoom feature and adjusted the focus in order to obtain closer views. When the woman just happened to look at the front door, she noticed a red light and saw a black-gloved hand holding a camera. She then quickly shut the bathroom door and called the police.
As explained by the Court, the bathroom was located at the top of the stairs, almost directly in line with the front door to the townhouse. The front door was solid wood with a semi-circular, decorative window near the top and a peephole at eye level, which allowed the occupants to see outside. The decorative window was high enough that a person of average height standing outside the door would not be tall enough to see through into the second floor bathroom. Here, the Defendant was 6′ 2″.
When the police arrived, they observed footsteps in the snow, concentrated between the victim’s door and defendant’s adjacent townhouse. When the officers asked defendant about the incident, he ultimately admitted taking the video and gave the police his camera and a memory card. An investigator from the district attorney’s office (who, like defendant, was 6′ 2″), testified that in order to obtain images of the bathroom through the window, he had to hold the camera over his head.
Defendant challenged his conviction of unlawful surveillance in the second degree. Under Penal Law § 250.45(1), a person is guilty of the crime of unlawful surveillance in the second degree when:
For his or her own . . . amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent.
The defendant conceded that the woman was unaware of, and did not consent to, being observed and recorded. He argued, however, that legally sufficient evidence was lacking as to certain other statutory elements.
The Court explained that this “legislation, known as Stephanie’s Law, was enacted to combat ‘video voyeurism.’ The woman for whom the law was named had been secretly recorded in her bedroom by her landlord, who had placed a hidden camera in a smoke detector. Although the genesis of the statute was a case involving a recording device that was hidden from all public view, there is no indication that the legislature intended that the term ‘surreptitiously’ be read so narrowly.”
The defendant first argued that the recording was not “surreptitiously” made, within the meaning of the statute, because his conduct was out in the open and in full public view. The Penal Law does not define the term “surreptitiously.” Applying its common meaning as found in Merriam Webster’s Collegiate Dictionary, surreptitiously is something done “by stealth” or “clandestinely.” “The statute, then, requires that the perpetrator make an effort to conceal his conduct or to escape detection. In other words, the element of surreptitiousness is clearly not duplicative of the requirement that the recording be made without the victim’s knowledge or consent. Contrary to defendant’s argument, however, it is not necessary that the conduct be entirely imperceptible to all members of the general public. Rather, whether a defendant’s actions can be considered surreptitious is dependent upon the particular facts and circumstances presented.”
Here, although recognizing that the defendant was standing on the woman’s front step, potentially exposed to public view, the Court also recognized “it was at 7:30 a.m. on Christmas Eve. The argument that defendant’s conduct was completely out in the open, for anyone who happened by to see, is undermined given the pre-dawn hour. Moreover, defendant was holding the small black camera in his black-gloved hand. In addition, he apparently had to hold the camera over his head, in the air, in order to get the proper angle and used the zoom function. Under the circumstances, there is legally sufficient evidence that defendant was acting in a furtive or stealthy manner, attempting to obtain the video of complainant without being discovered—in other words, that he was acting surreptitiously.”
Defendant had also argued that the woman did not have a “reasonable expectation of privacy” because her unclothed body could be seen from a lawful public vantage point without the need for technological enhancement, such as a telephoto lens. The Penal Law defines a “place and time when such person has a reasonable expectation of privacy” as “a place and time when a reasonable person would believe that he or she could fully disrobe in privacy.” Penal Law §250.40(1).
The Court concluded that one’s “own bathroom must certainly be the quintessential example of a location where an individual should expect privacy.” “It cannot be that the legislature intended New Yorkers to have to shutter their own residences completely in order to garner the protection of this Penal Law provision. Defendant’s conduct was an unmistakable violation of complainant’s reasonable expectation of privacy and the evidence was legally sufficient to support this element of the offense.”
Employer of Injured Undocumented Alien Gets Workers’ Comp. Protection
In N.Y. Hosp. Medical Ctr. Of Queens v. Microtech Contracting Corp., 2014 WL 551289, the State’s highest Court was asked whether “an employer’s statutory rights under the Workers’ Compensation Law are extinguished merely because its injured employee is an undocumented alien; specifically, whether the employer may still invoke section 11’s shield against third-party claims for common-law contribution and indemnification.” The Court concluded that the employees’ immigration status did not affect the employer’s rights under Workers’ Compensation Law § 11.
Here, New York Hospital Medical Center engaged defendant employer Microtech Contracting to undertake demolition in a basement room. Brothers Luis and Gerardo Lema, were hired by Microtech to perform this work. The Lemas, originally from Ecuador, were undocumented aliens not legally employable in the United States. During the demolition, both brothers were injured when a chimney fell on them.
The brothers made claims for and received workers’ compensation benefits, which Microtech’s insurance carrier paid. The Lemas also sued the hospital for violations of the Labor Law.
Generally, Workers’ Compensation Law § 11 bars third-party lawsuits for contribution and indemnification against an injured employee’s employer, unless the employee suffered a “grave injury” (limited to death and the exclusive list of disabilities defined in the statute), or the employer agreed to contribution and indemnification in a written contract entered into with the third party prior to the accident.
Under the federal Immigration Reform and Control Act (8 USC § 1324a) (the “IRCA”), employers may hire only persons who may legally work in the U.S., i.e., citizens and nationals of the U.S. and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification Form (I-9). Employers must keep each I-9 on file for at least three years, or one year after employment ends, whichever is longer.
The hospital argued that Microtech should not be allowed to “hid[e] behind the language of Workers’ Compensation Law § 11 after violating a federal statute since New York courts have long held that they will not award a plaintiff the benefit of an illegal bargain.”
Microtech, on the other hand, took the position that section 11 barred the hospital’s action because the Lemas did not suffer a grave injury and argued that non-compliance with IRCA (which it disputed) “would not deprive it of the protection of section 11 since the Workers’ Compensation Law applies to all workers within the state’s borders regardless of their immigration status.”
In addressing the arguments, the Court recognized that “[i]t is true that New York courts typically do not assist parties in taking advantage of their own wrongs, or enforce illegal contracts. But these principles are beside the point in this case: we are not being called upon to enforce or recognize rights arising from an illegal oral employment contract between Microtech and the Lemas, and Microtech is not raising any such employment contract as a defense to common-law contribution or indemnification. Indeed, section 11 does not even require an underlying employment contract.”
The Court explained that under “New York’s workers’ compensation scheme, an employee receives medical benefits and compensation for workplace injuries, regardless of fault, paid for by the employer. In exchange for this certain and swift remedy, the employee gives up the right to sue the employer for personal injuries.” Section 11 “explicitly limits an employer’s exposure to third party liability to those situations where the employee suffers a grave injury, or the employer enters into a written contract of contribution or indemnification with the third party. As this case is presented to us, the Lemas did not suffer grave injuries, there was no preexisting agreement for contractual contribution or indemnification and the hospital does not contend that IRCA preempts section 11; therefore, Microtech is entitled to the safe harbor in section 11.” It appears that the preemption argument has been reserved for another day.