Will a Manhattan jury have to figure out whether a gay man can be identified by the pattern of his chest hair? Maybe, if the lawsuit brought by Doug Hill and James Moritz against plastic surgeon Douglas Steinbrech actually goes to trial in New York County Supreme Court. Supreme Court Justice Cynthia Kern granted summary judgment to Dr. Steinbrech on some of the gay couple’s claims on September 28 in Hill v. Steinbrech, 2015 N.Y. Misc. LEXIS 3562, 2015 NY Slip Op 31827(U), but she refused to do so on others, finding, for example, that it was a jury question as to whether a photograph of Mr. Moritz’s torso running from his chin to his knees would be recognizable enough based on the distinguishing features of his chest and facial hair to constitute an unauthorized appropriation of his image for commercial purposes under New York’s Civil Rights Law.
Hill and Moritz describe themselves as a “well-known gay couple in Chelsea.” This lawsuit may increase their fame!
Between January 2012 and October 2012, they retained the services of Dr. Steinbrech and his professional corporation, Gotham Plastic Surgery, to have some work done. Apparently their goals included pec enhancement for Hill and tightening up the butt for Moritz. As plastic surgeons generally do, Dr. Steinbrech made “before and after” photographs to document his work. He also made a video recording of Hill after completing the procedures.
Hill and Moritz claim that more than a year later, in May 2014, they were surprised to find that their “before and after” photos appeared on “numerous commercial websites” without their consent. They provided Justice Kern with photos and screen shots which they claim “depict their pre and post-operative states,” although as to some of these images one would have to take it on faith because their faces are not shown.
Justice Kern itemized the images presented to her: (1) a screen shot of the website www.boyculture.com, which contains what appears to be a video advertising defendants’ work that includes a picture of Hill’s chest in a pre and post-operative state; (2) a screen shot of the website gaytube.com, which contains an advertisement for defendants with a similar photo of Hill’s chest; (3) a screen shot of search results from google under the heading ‘Pec implant testimonial of NYC patient’, depicting a youtube video showing Hill in a post-operative state; (4) a screen shot of a commercial website advertising defendants’ services known as Men’s Plastic Surgery Manhattan, which includes photographs of Hill’s torso in a pre and post-operative state from a front and side angle; (5) a screen shot of a video posted to youtube entitled ‘Pec implant testimonial of NYC patient’ in which Hill is shown in a post-operative state; (6) a screen shot of a youtube video which purportedly includes a picture of Moritz’s buttocks in a post-operative state; (7) a frontal torso shot of Moritz in a post-operative state; and (8) a flier advertising defendants’ services which purportedly includes a side angle shot of Moritz’s buttocks in a pre and post-operative state.
Justice Kern wrote that in the youtube videos Hill’s face and torso tattoo are visible. In the still pictures of Hill, on the other hand, Hill’s face is not visible but his tattoos on his torso and shoulder are. The pictures of Moritz’s buttocks include nothing further than this portion of his body, but the frontal picture of Moritz shows from his chin to his knees.
The men advanced five different legal claims, but Kern explained that all of the other claims were preempted by an old New York statute, Civil Rights Law Sections 50 and 51, commonly known as the Privacy Act. The Privacy Act provides that a person’s image cannot be used without their written consent for “advertising or trade” purposes, and authorizes those whose images are used without their consent to sue for damages, including punitive damages for intentional violations of the statute.
Justice Kern rejected the argument that the defendants could not be liable for any picture where a face is not shown. “Rather,” she wrote, “the question is whether the objectionable material presents a recognizable likeness of the plaintiff,” which is “generally a jury question unless plaintiff cannot be identified because of the limited subject matter revealed in the photograph or the quality of the image.” If the person in the photograph “is capable of being identified from the advertisement alone and that plaintiff has been so identified,” the court will not grant summary judgment to the defendants.
As Hill had submitted some pictures in advertisements from which he could readily be identified by his face and swore that he had not provided written consent for their use in advertising, Justice Kern granted summary judgment in his favor with respect to those images, as the consent forms produced by the defendants did not specifically authorize that they be used in advertising. Hill had signed a consent form allowing pictures to be taken and disseminated “with the exception of his bodily tattoos,” but his tattoos were in the pictures and the video. The defendants also offered a video in which Hill “says ‘I don’t care’ in regards to showing his tattoo in the video,” but this would not suffice under the law, which requires a signed, written consent for commercial use.
Moving to Hill’s photos that did not show his face, Justice Kern ruled that she couldn’t grant summary judgment in his favor as to those because a jury would have to decide whether he was recognizable from those pictures. Since they did show his tattoos, “which are a distinguishing feature,” wrote Kern, the jury would have to decide whether they were recognizable as him. Because there were distinguishing features, the judge could not rule against Hill as a matter of law.
Moving on to the Moritz photos, Justice Kern found that he was not entitled to summary judgment on the claim that the picture of his front torso was used for advertising purposes because the only evidence he presented was the photo itself, which was not clearly part of an advertisement. He claimed that it was used in an advertisement, and defendants denied it, so there was a question of fact for a jury to sort out. Furthermore, wrote Kern, “even if the picture was used for advertising purposes, summary judgment is inappropriate as there remains an issue of fact as to whether Moritz is identifiable from the picture alone. The court cannot say that Moritz is identifiable from the picture as a matter of law. Indeed, the only portion of Moritz’s face depicted in the picture is the lower portion of Moritz’s chin. However, the picture contains distinguishing features such as Moritz’s facial and chest hair. Thus, based on these distinguishing features, the court finds that a jury could find that Moritz is capable of being identified by the picture alone and, as such, determination of that issue must be left to the jury.” The judge found that because the picture included Moritz’s chin — which by dictionary definition is part of his face — it exceeded the scope of the written release he had signed, which excluded disseminating pictures of his face. This is the picture where the jury would have to find that the facial and chest hair and other features are distinctive enough to identify Moritz from the picture.
Bringing up the rear, as it were, is the advertisement that Moritz claims depicts his buttocks pre and post operative. “As an initial matter,” wrote Justice Kern, “on their face, the pictures are devoid of any distinguishing or identifying features. Further, Moritz has failed to present any evidence that he has actually been recognized from these pictures. Thus, these pictures are not actionable and defendants are entitled to summary judgment dismissing Moritz’s claim for violation of the Civil Rights Law based on defendants’ alleged use of these pictures for advertising purposes.” Alas, poor Moritz, thy butt is undistinguished and anonymous, as a matter of law. All butt men who read this doth protest!
We wonder how coincidental it is that this case was assigned to Justice Kern, a lesbian, to decide? Actually, we know that the cases in Supreme Court are assigned at random, but we couldn’t resist the irony.
Any volunteers for the jury?