Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)

Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)

Maureen S. Bateman, Plaintiff, against Sport Photo and EMS, Inc., Defendants.


No. 81 Civ. 4790 (MJL)




1983 U.S. Dist. LEXIS 15461


July 14, 1983


COUNSEL: [*1] J. DENNIS McGRATH, ESQ., 321 East 89th Street, New York, New York 10028, for plaintiff.

ROGERS & WELLS, 200 Park Avenue, New York, New York 10166, for defendants.





This action, brought pursuant to New York Civil Rights Law Sections 50 and 51, was originally commenced in New York Supreme Court. The action was subsequently removed by the defendants to this Court. Plaintiff alleges that defendants used a photograph of her taken during the 1980 Perrier 10 Kilometer Run in New York Ciry, for advertising purposes, without her written consent, in violation of the above-mentioned statute. 1 Defendants have moved for summary judgment on the ground that plaintiff signed a release on her entry blank which gave the New York Roadrunners Club [“NYRRC”] and its assigns “full permission… to use any photographs, video tapes, motion pictures, recordings, or any other record of this event [the Perrier 10 Kilometer Run] for any legitimate purpose.” Defendants claim that NYRRC assigned the rights, acquired by virtue of plaintiff’s release, to Sportphoto for use in connection with Sportphoto’s business of soliciting [*2] mail order sales of photographs from contestants in competitive foot races.

1 Briefly stated, defendants’ business operates as follows. Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon. (Evenson Dep. at 55).

Plaintiff argues that there are two major issues of material fact which preclude the granting of summary judgment in favor of defendants; first, whether plaintiff, by signing the so-called “release”, consented [*3] to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assigment by NYRRC to Sportphoto. The Court agrees that there are genuine issues of material fact in this case which render summary judgment inappropriate.

The parties’ dispute concerning the correct interpretation of the “release” centers around the use of the phrase “for any legitimate purpose”. Defendants argue that “legitimate” should be given its dictionary meaning, which would clearly encompass advertising and commercial purposes. Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.” Plaintiff’s Op. Memo., at 20.

[HN1] The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did [*4] not desire or intend to dispose of”. Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 354, 157 N.E.2d 505, 510, quoted in Tarantola v. Williams, 48 AD 2 552 371 N.Y.S.2d 136, 139. The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering. 2 The Court is convinced on the record before it that this question should be resolved by the trier of fact.

2 Plaintiff’s affidavit makes clear that if a photograph of her running in the Perrier 10K appeared in an article about that race, or if the sponsor of the race showed a video-tape of the race, in which plaintiff happened to appear she would deem those uses “legitimate” within the meaning of the release. Bateman Aff. P29.

This case is not, as defendants suggest, analagous to cases in which courts have broadly construed releases [*5] entered into by professional models and actors. Unlike the plaintiffs in those cases, who knowingly signed releases for commercial purposes in pursuit of their careers, the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace. What constitutes a “legitimate use” of an individual’s photograph may vary from one context to another. Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.

Plaintiff also claims that there is a genuine issue of material fact with respect to whether defendants were the assignees of whatever rights NYRRC obtained by virtue of the entry blank “release”. Plaintiff acknowledges that there was a verbal agreement in 1979 (and renewed thereafter), between NYRRC and defendants giving defendants the exclusive right to take photographs of runners at the Perrier 10K for subsequent mail order sale. However, she argues that this agreement did not constitute an “assignment” of any rights on the entry blank; nor did it contemplate the use of one runner’s photograph for advertising directed at other runners.

Defendants maintain that [*6] in construing the agreement between NYRRC and defendants, the intent of the parties is controlling. They argue that in this case, the intent of the parties has been explicitly set out in the affidavits of Mr. Lebow, president of the NYRRC, and Mr. Evenson, president of defendants. Both Mr. Lebow and Mr. Evenson state that NYRRC intended to assign defendants the right to use runners’ photographs for all legitimate purposes, including advertising in connection with defendants’ business of selling photographs by mail. It is defendants’ position that in light of these clear expressions of intent, the assignment issue should be resolved as a matter of law.

Plaintiff argues that the rest of the evidence, including portions of Mr. Evenson’s own deposition testimony, contradicts the statements of Mr. Lebow and Mr. Evenson with respect to their intent at the time the agreement was reached, and thus raises a triable issue of fact. For example, Mr. Evenson testified during his deposition that he and Mr. Lebow never discussed the language of the entry blank “release”, the assignment of rights under the entry blank “release”, or the use of a participant’s photograph in the manner challenged [*7] herein, during negotiations for the agreement.Mr. Lebow testified that he could not recall whether these issues had been discussed. Defendants respond that the parties need not have anticipated or discussed every specific application of the agreement so long as the agreement was sufficiently broad to encompass those applications.

We find that the plaintiff has raised questions of credibility and intent which, even where the evidence weighs strongly in favor of one side, are better left to the trier of fact.

For the reasons stated above, defendants’ motion for summary judgment is hereby denied.

It is So Ordered.

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