It is unlikely that a WMC victim will bring a breach of contract action. As shown below, in a situation where parties have a contract involving consent to use an image of the plaintiff (be it for advertising purposes or otherwise), any claim that follows would arise under N.Y. Civil Rights Law §§ 50-51.
Breach of Contract
(1) Existence of a contract;
(2) Claimant’s performance under the contract;
(3) Defendant’s breach of that contract; and
(4) Resulting damages.1
(1) A promise that is sufficiently clear and unambiguous;
(2) Reasonable reliance on the promise by a party; and
(3) Injury caused by the reliance.2
1) Wrangell v. C.F. Hathaway Co., 253 N.Y.S.2d 41 (N.Y. App. Div. 1964)
Procedural Posture: Appeal from order denying defendant’s motion to dismiss plaintiff’s claim for a violation of his right to privacy through use of his photograph in connection with defendant’s advertisements of women’s blouses.
Law: Breach of contract; N.Y. Civ. Rights Law §§ 50 & 51
Facts: Plaintiff alleged that the defendant violated his right to privacy by using his photograph in connection with its advertisements of women’s blouses. Defendant put forth exhibits showing that the plaintiff and defendant had signed an agreement several years earlier for plaintiff’s photograph to serve as its main advertisement for its shirts, and that the defendant had then trademarked the photograph. Plaintiff asserted that the defendant was not authorized to use his photograph without giving plaintiff extra compensation.
Outcome: The court reversed the lower court’s denial of the motion to dismiss and dismissed plaintiff’s claim. The court determined that through his contract for employment and his consent to defendant’s use of his photograph in its trademark, “plaintiff relinquished his right to privacy.”3 The court explained that “[i]n essence, plaintiff’s action is for breach of contract, that is, the use of his photograph in excess of the right and privilege which he granted to defendant. Section 51 of the Civil Rights Law does not afford relief for mere breach of contract. ‘[R]esort to the statute under these circumstances perverts its purpose. . . We make no determination as to whether or not plaintiff has a cause of action for breach of contract or other relief.”4
d. Practice Pointers
If a plaintiff’s suit arises from the unlawful use of her image in contravention of an agreement with the defendant, then the plaintiff should proceed under N.Y. Civil Rights Law §§ 50 & 51, not under breach of contract.
A plaintiff can recover lost profits due to a breach of contract only if he can demonstrate the existence and the amount of such damages with reasonable certainty.5 “[T]he damages may not be merely speculative, possible or imaginary.” Id. Rather, they must be “capable of measurement based upon known reliable factors without undue speculation.”6 “Projections of future profits based upon a multitude of assumptions that require speculation and conjecture and few known factors do not provide the requisite certainty.”7
A court may allow a party to seek punitive damages where a “breach of contract also involves a fraud evincing a ‘high degree of moral turpitude’ and demonstrating ‘such wanton dishonesty as to imply a criminal indifference it civil obligations’” and the “conduct was part of a pattern of similar conduct directed at the public generally.”8
- 1. JP Morgan Chase v. J.H. Elec. of NY, Inc., 893 N.Y.S.2d 237 (N.Y. App. Div. 2010).
- 2. New York City Health & Hosp. Corp. v. St. Barnabas Hosp., 782 N.Y.S.2d 12 (N.Y. App. Div. 2004); see also Johnson & Johnson v. Am. Nat’l Red Cross, 528 F. Supp. 2d 462, 463 (S.D.N.Y. 2008).
- 3. Wrangell v. C.F. Hathaway Co., 253 N.Y.S.2d 41, 43 (N.Y. App. Div. 1964).
- 4. Id. (citations omitted).
- 5. Kenford Co. v. County of Erie, 493 N.E.2d 234, 235 (N.Y. 1986).
- 6. Ashland Mgmt. Inc. v. Janien, 624 N.E.2d 1007, 1010 (N.Y. 1993).
- 7. Kenford, 493 N.E.2d at 235.
- 8. Rocanova v. Equitable Life Assurance Soc’y of United States, 634 N.E.2d 940, 943 (N.Y. 1994).