Shields v. Gross ( 1982 )

— Judgment, Supreme Court, New York County (Greenfield, J.), entered November 18, 1981, after nonjury trial, in an action alleging violation of sections 50 and 51 of the Civil Rights Law, which dismissed the complaint and denied plaintiff’s application for a permanent injunction except to the extent of enjoining defendant from using or permitting the use of the photographs in pornographic publications or publications whose appeal is of a predominantly prurient nature, modified, on the law, without costs or disbursements, and defendant is further permanently enjoined from the use of the photographs at issue for purposes of advertising or trade. Plaintiff, now 16 years of age, is an internationally known model and actress. Defendant is a prominent, highly regarded photographer. In September of 1975, when plaintiff, then 10 years old, was less well known, defendant took a series of photographs of her unclothed in a bathtub pursuant to arrangements made by Playboy Press. Although the immediate occasion for the taking of these photographs was their intended inclusion in a book “Portfolio 8” plaintiff’s mother and professional manager, Teri Shields, signed at the defendant’s request broad consent forms which in terms granted the defendant the unrestricted right to “use, reuse, and/or publish or republish” the photographs. Thereafter, in connection with other photographic assignments, and during the same general period of time, defendant took several other series of photographs of plaintiff. During these photographic sessions plaintiff was clothed. Plaintiff’s mother signed similar consents with regard to these photographs. In 1978, several of defendant’s photographs of plaintiff, clothed and unclothed, appeared in a French magazine called Photo. Disturbed by this publication, and the information that defendant intended further commercial use of the photographs, plaintiff undertook to purchase them from the defendant. When the negotiations proved unsuccessful, the instant action was brought, seeking a permanent injunction and damages pursuant to sections 50 and 51 of the Civil Rights Law. Plaintiff then moved for a preliminary injunction. Special Term (Helman, J.) granted plaintiff’s motion for a preliminary injunction, finding that factual issues were presented with regard to the meaning and validity of the consents signed by plaintiff’s mother, but going on to conclude that the consent provisions of sections 50 and 51 of the Civil Rights Law effectively rescinded as to an action brought thereunder the right of an infant to disaffirm a contract consented to by a parent. The trial court resolved the factual issues presented as to the meaning and validity of the consent forms in favor of the defendant and we find no basis in the record for disturbing the conclusions he reached. Quite properly the trial court did not consider whether an infant may disaffirm a parent’s consent in an action under sections 50 and 51 of the Civil Rights Law, that issue having been determined by Special Term. That question presents the principal issue on this appeal. We disagree with the conclusion reached by Special Term, find that the infant could lawfully disaffirm her parent’s consent, and did so, and accordingly reverse the judgment below and enjoin the defendant from the use of the photographs at issue for purposes of advertising or trade. In this State, as elsewhere, it has long been the general rule that an infant has the right to disaffirm a contract even when the contract has been entered into on behalf of the infant by a parent or guardian. (See, e.g., Lee v Silver, 262 App Div 149, affd 287 NY 575; Aborn v Janis, 62 Mise 95, affd 122 App Div 893.) The right of disaffirmance by an infant was recognized by the Legislature when it established 18 as the age after which a contract may not be disaffirmed on the ground of infancy. (General Obligations Law, § 3-101, subd 1.) Where the Legislature has determined in particular instances to limit or deny an infant the right of disaffirmance, it has invariably done so in explicit terms. For example, subdivision 3 of section 3-101 of the General Obligations Law provides that where a husband or wife seeks to occupy real property as a home and in connection therewith contracts for a loan or executes contracts, notes, mortgages, etc., “no such husband or wife shall have the power to disaffirm, because of minority [such] act or transaction * * * nor shall any defense based upon minority be interposed in any action or proceeding arising out of any such act or transaction.” Similarly, subdivision 1 of section 3-102 of the General Obligations Law provides: “An obligation incurred by a married minor for hospital, medical and surgical treatment and care for such minor or such minor’s children shall not be voidable because of minority.” To the same effect is section 3-103 of the General Obligations Law relating to certain contracts entered into pursuant to the Servicemen’s Readjustment Act of 1944. Significantly, in subdivision 1 of section 3-105 of the General Obligations Law the Legislature established a procedure for obtaining judicial approval of a contract made by an infant, or his parent, or guardian, for the infant’s services in the performing arts or professional sports. The section includes this language: “If the contract is so approved the infant may not, either during his minority or upon reaching his majority, disaffirm the contract on the ground of infancy or assert that the parent or guardian lacked authority to make the contract.” Paragraph e of subdivision 2 goes on to reserve to the court the continuing power to revoke its approval of the contract or declare the approval revoked unless the contract is appropriately modified. We do not perceive in the wording of sections 50 and 51 of the Civil Rights Law any clear manifestation of a legislative intent to limit the long-established rights of infants to disaffirm contracts approved by a parent with regard to actions brought under those sections. Section 50 provides: “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” Section 51 makes a violation of section 50 actionable in a civil suit. It specifically provides, as relevant to this case, that “[a]ny person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use”. The manifest purpose of the requirement of parental consent in these sections was to protect someone who secured such consent from being prosecuted criminally, or subject to an action for damages or injunctive relief, with regard to activities embraced in the sections during the period the consent was effective. Nothing in the sections even purports to address the infant’s right to disaffirm such consent, and we see nothing in the language of the sections nor the rights that they were designed to protect that would require an interpretation so inconsistent with the general common-law principle and the clear meaning of the statutory pattern described above. Accordingly, the judgment dismissing the complaint, and denying, except in one limited respect, plaintiff’s right to a permanent injunction, is modified and defendant is enjoined from using any pictures of plaintiff at issue here for purposes of advertising or trade. Concur — Sandler and Silverman, JJ.; Kupferman, J. P., concurs both with the memorandum of the court and in a separate memorandum; Asch, J., concurs in a separate memorandum; and Carro, J., dissents in a memorandum, all as follows: