A WMC victim could sue to recover property or damages. For instance, if an individual publishes an online photograph of the victim without her consent, she could try to bring an action of conversion against him to reclaim the goods and/or obtain other equitable relief.
A denial or a violation of a person’s dominion over rights in or possession of property.1
1) Abrams v. Pecile, 922 N.Y.S.2d 16 (N.Y. App. Div. 2011)
Procedural Posture: On appeal from lower court’s ruling granting defendant’s motion to compel discovery in context of plaintiff’s claim that defendant retained without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon.
Law: Conversion; intentional infliction of emotional distress
Facts: Plaintiff sued defendant, a former employee of her husband, for retaining, without her permission, a copy of a CD containing seminude photographs of the plaintiff taken by her husband during their honeymoon. Plaintiff also alleged that defendant refused to return the CD/photographs unless plaintiff’s husband paid him $2.5 million to settle her sexual harassment claims brought against plaintiff’s husband and his brother.”2
Outcome: The court reversed the lower court’s decision and determined that defendant was not entitled to access to plaintiff’s social networking accounts or hard drive for discovery where he failed to provide evidence that had a “substantial need” for the materials and was unable to obtain them elsewhere without “undue hardship.”3
2) Preston v. Martin Bregman Prods., Inc., 765 F. Supp. 116 (S.D.N.Y. 1991)
Procedural Posture: Defendant moved for summary judgment on plaintiff’s claims under N.Y. Civ. Rights Law §§ 50 & 51, common law conversion, and intentional infliction of emotional distress.
Law: Conversion; N.Y. Civ. Rights Law §§ 50 & 51; intentional infliction of emotional distress
Facts: Plaintiff contended that she appeared in a scene shown during the opening credits of a New York murder mystery, “Sea of Love,” in which a police officer investigating a case becomes romantically involved with a suspect who responded to an advertisement placed by the police in an effort to catch the killer.4 The defendants disputed whether the plaintiff was actually in the scene, but the court adopted plaintiff’s factual assertions for purposes of considering the summary judgment motion. The scene at issue was nine seconds long (though the woman’s face was visible for only four seconds), and showed a “scantily dressed” woman revealing her full face and entire body as she walked on a public New York City street.
Outcome: The court granted defendant’s motion for summary judgment on all claims. First, in rejecting plaintiff’s conversion claim, the court explained that the claim labeled “conversion,” was actually simply a claim for a violation of plaintiff’s right to privacy, which exists only under New York Civil Rights law.5 Second, the N.Y. Civil Rights Law claims were barred by the “incidental use” do[ctrine, which requires a “direct and substantial connection between the appearance of the plaintiff’s name or likeness and the main purpose and subject of the work.”6 The court specifically rejected plaintiff’s argument that the doctrine only applied to injunctive relief, and not to actions for money damages as well as injunctions. 7 The court explained “[t]he doctrine of incidental use was developed to address concerns that penalizing every unauthorized use, no matter how insignificant or fleeting, of a person’s name or likeness would impose undue burdens on expressive activity, and carry consequences which were not intended by those who enacted the statute.”8 The court further reasoned that although "[t]he statute was passed to change New York law, which then provided no remedy to those whose pictures or names were used blatantly and commercially, as in advertisements. That is no this case.”9 Finally, the court also dismissed plaintiff’s intentional infliction of emotional distress claim because the conduct at issue was not “extreme and outrageous” such that it fell under the tort.10
d. Practice Pointers
A cause of action for conversion accrues when the conversion occurs, and the statute of limitations begins to run at that time. The fact that the victim may not know that she suffered an injury or that she may not have discovered the wrongs complained of until long after they were committed is immaterial.11
New York law permits a claim for aiding and abetting conversion where the plaintiff can prove: (1) the existence of a violation committed by the primary (as opposed to the aiding and abetting) party; (2) “knowledge” of this violation on the part of the aider and abettor; and (3) “substantial assistance” by the aider and abettor in achievement of the violation.12 While “wrongful intent is not an essential element of the conversion, a plaintiff must show that the defendant aided and assisted the converter with culpable knowledge that such funds did not belong to [the converter].”13 “New York has not adopted a constructive knowledge standard for imposing aiding and abetting liability.”14
- 1. Sporn v. MCA Records, Inc., 448 N.E.2d 1324, 1326 (N.Y. 1983).
- 2. Abrams v. Pecile, 922 N.Y.S.2d 16, 17 (N.Y. App. Div. 2011)
- 3. Id.
- 4. Preston v. Martin Bregman Prods, Inc., 765 F. Supp. 116, 118 (S.D.N.Y. 1991).
- 5. Id. at 120.
- 6. Id. at 119.
- 7. Id.
- 8. Id. at 120 (citations omitted).
- 9. Id. (citations omitted).
- 10. Id. at 120-21 (“If defendant’s primary purpose was to advance its own business interests, and any conduct that harmed plaintiff was incidental, defendant has not committed the New York tort of intentional infliction of emotional distress.”).
- 11. Brick v. Cohn-Hall-Marx Co., 11 N.E.2d 902 (N.Y. 1937).
- 12. Dangerfield v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 02-CIV-2561, 2006 WL 335357, at *5 (S.D.N.Y. Feb. 15, 2006) (internal citations omitted).
- 13. Id. (internal citations omitted).
- 14. Id. (internal citations omitted).