Is a Photo Release valid when it is in a Release?
Posted: July 15, 2013 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: 10 Kilometer Run, Contract, Inc., Maureen S. Bateman, Model Release, New York, New York Marathon, New York Roadrunners Club, Perrier, Photo Release, Photograph Release, Release, Sport Photo and EMS, Summary judgment 1 CommentNew York court said maybe not.
Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Plaintiff: Maureen S. Bateman
Defendant: Sport Photo and EMS, Inc.
Plaintiff Claims: Violation of New York Civil rights law §§ 50, 51 (misrepresentation of release signed to enter a road race)
Defendant Defenses: release and contract
Holding: for the plaintiff
This case is about a little clause found in numerous releases in the outdoor recreation industry. The clause is the photography release in the release.
In this case, the plaintiff signed the release to enter the New York Roadrunners Club (NYRRC) 10K road race. The plaintiffs photograph was assigned to the defendant who used it to advertise another race. The defendant was in the business of soliciting contestants to buy photographs when they ran a race.
The plaintiff found out about the use of her photograph when the defendant used it to attempt to market the New York Marathon.
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.
The plaintiff sued over the issue. The defendant filed a motion for summary judgment which this court denied.
Summary of the case
The plaintiff argued there were two legal issues at stake:
…“whether plaintiff, by signing the so-called “release”, consented 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 assignment by NYRRC to Sportphoto.”
Normally contracts are only interpreted by the language of the contract. No other evidence can be brought into to interpret the contract. Specific words in a contract are given the definition found in the contract, if not defined there, then as used in the industry or as defined by courts in other cases.
At issue was the interpretation of the word in the photo release, legitimate. In this case, however, the court found a different interpretation for the word “legitimate.” The defendants argued the word should be defined as found in a dictionary, which would be the definition that would normally be used.
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.
Releases under New York law are interpreted according to New York contract law.
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 not desire or intend to dispose of.”
The reason why the court stretched was based upon the plaintiff signed a release to race and also gave up her photographic rights.
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.
The plaintiff raised valid issues, bordering on misrepresentation, about how her legal agreement was reached. “…the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace.”
The court could find that whether the plaintiff intended to run a road race or give up her photo rights. “Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.”
The plaintiff also argued that the assignment between the NYRRC, and the defendant was invalid.
In both cases, the court stated that there was a genuine issue of fact that had to be reviewed by a jury.
So Now What
Like any clause in a contract or release, make sure if your guests want to read the release they have the opportunity to read the release.
You may want to identify the photo release with a bold heading so people cannot argue you tried to hide it.
I would also suggest that when you are going to use someone’s photograph you contact them and offer an incentive for using their release; a free trip, a discount, a T-shirt even. Most people if given the opportunity would love to have their photograph used. By providing your guests with some type of consideration (money) post contract you are at least going to find out how they feel and arguing you “paid” for the right to sue their photos.
This case has me wondering.
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2013-2023 Summit Magic Publishing, LLC
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Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Posted: July 15, 2013 Filed under: Legal Case, New York, Racing, Release (pre-injury contract not to sue) | Tags: 10 Kilometer Run, Inc., Maureen S. Bateman, Model Release, New York, New York City, New York Marathon, New York Roadrunners Club, New York Supreme Court, Perrier, Photo Release, Photograph Release, Plaintiff, Release, Sport Photo and EMS, Summary judgment Leave a commentTo Read an Analysis of this decision see: Is a Photo Release valid when it is in a Release?
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)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
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.
OPINION BY: LOWE
OPINION
MEMORANDUM OPINION AND ORDER
MARY JOHNSON LOWE, D. J.
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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NY court explains how it interprets Section 5-326 which disallows releases in NY. Upholds release for a marathon
Posted: October 8, 2012 Filed under: New York, Racing, Release (pre-injury contract not to sue) | Tags: Brooklyn, General Obligations Law § 5-326, Jim Moss, New York, New York City, New York Roadrunners Club, New York Supreme Court Leave a commentBrookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
Language of General Obligations Law § 5-326 is interpreted
In this case, the plaintiff sued the New York Road Runners Club which puts on the ING New York Marathon. His injuries were not stated in the claim nor were his
claims. A New York statute restricts the use of releases. See States that do not Support the Use of a Releaseand no court has ever clearly defined how they get around the statute when a release is raised as a defense.
The Supreme Court of New York, Appellate Division which wrote this decision held that General Obligations Law § 5-326 did not apply.
General Obligations Law § 5-326 states:
§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable
Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.
The court then looked at the language of the statute and concluded the release applied in this case because the entry fee for the marathon was not a fee for admission into the streets of New York City. Further the court found the streets of New York City, where the plaintiff was injured were not places of amusement.
…General Obligations Law § 5-326 does not invalidate the release, since the entry fee the plaintiff paid to the NYRRC was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run. Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation”
So Now What?
Although the interpretation by the court could be viewed in another light, clearly most courts in New York want to uphold releases and if given the opportunity will write a decision which does so.
Make sure, if you are based in New York, that when your release is written it takes the statute into consideration. You can have signors of the release agree to the release that you are not a place of amusement, and the fee paid is not for admission.
Other New York Articles:
Electronic Signature on release in NY upheld.
New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Summer camp supervision issues are always part of any lawsuit and tough to determine in New York.
How to fight a Bicycle Product Liability case in New York. One step at a time
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
Outdoor Recreation Insurance, Risk Management and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2012-2023 Summit Magic Publishing, LLC
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, New York, ING, New York Marathon, Marathon, ING NY Marathon, release,
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Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
Posted: October 8, 2012 Filed under: Legal Case, New York, Racing | Tags: New York, New York City, New York Roadrunners Club, Supreme Court Leave a commentTo Read an Analysis of this decision see NY court explains how it interprets § 5-326 which disallows releases in NY. Upholds release for a marathon
Brookner v New York Roadrunners Club, Inc., et al., 2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
[*1] Larry Brookner, Appellant, v New York Roadrunners Club, Inc., et al., Respondents. (Index No. 2902/06)
2007-02310, 2007-02712
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 4638; 51 A.D.3d 841; 858 N.Y.S.2d 348; 2008 N.Y. App. Div. LEXIS 4393
May 20, 2008, Decided
SUBSEQUENT HISTORY: Appeal denied by Brookner v. N.Y. Roadrunners Club, Inc., 11 NY3d 704, 894 NE2d 1198, 2008 N.Y. LEXIS 2654, 864 NYS2d 807 (N.Y., Sept. 9, 2008)
HEADNOTES
Release–Scope of Release
COUNSEL: David A. Kapelman, P.C., New York, N.Y. (Richard H. Bliss of counsel), for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York, N.Y. (Steven Rosenfeld and Carmen Nicolaou of counsel), for respondents.
JUDGES: ANITA R. FLORIO, J.P., HOWARD MILLER, MARK C. DILLON, WILLIAM E. McCARTHY, JJ. FLORIO, J.P., MILLER, DILLON and McCARTHY, JJ., concur.
OPINION
[**841] [***348]
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 18, 2006, which, in effect, granted that branch of the defendants’ motion pursuant to CPLR 3211 (a) (5) which was to dismiss the complaint insofar as asserted against the defendant New York Roadrunners Club, Inc., and (2), as limited by his brief, from so much of an order of the same court dated February 8, 2007, as, in effect, granted that branch of the defendants’ motion pursuant to CPLR 3211 (a) (5) which was to dismiss the complaint insofar as asserted against the defendant City of New York.
Ordered that the order dated December 18, 2006, is affirmed; and it is further,
[***349] Ordered that the order dated February 8, 2007, is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff commenced this action to recover damages after he allegedly sustained injuries while participating in the 2004 ING Marathon in New York City. Prior to the event, the plaintiff signed a waiver and release, which unambiguously stated his intent to release the defendants from [*2] any liability arising from ordinary negligence (see Bufano v National Inline Roller Hockey Assn., 272 AD2d 359, 359-360, 707 NYS2d 223 [2000]; cf. Gross v Sweet, 49 NY2d 102, 109-110, 400 NE2d 306, 424 NYS2d 365 [1979]; Doe v Archbishop Stepinac High School, 286 AD2d 478, 479, 729 NYS2d 538 [2001]). In light of this waiver and release, [**842] the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the complaint pursuant to CPLR 3211 (a) (5) insofar as asserted against the defendants New York Road Runners Club, Inc. (hereinafter NYRRC) and City of New York (see Fazzinga v Westchester Track Club, 48 AD3d 410, 851 NYS2d 278 [2008]; see also Booth v 3669 Delaware, 92 NY2d 934, 703 NE2d 757, 680 NYS2d 899 [1998]; Lee v Boro Realty, LLC, 39 AD3d 715, 716, 832 NYS2d 453 [2007]; Koster v Ketchum Communications, 204 AD2d 280, 611 NYS2d 298 [1994]).
Contrary to the plaintiff’s contentions, General Obligations Law § 5-326 does not invalidate the release, since the entry fee the plaintiff paid to the NYRRC was for his participation in the marathon, and was not an admission fee allowing him to use the City-owned public roadway over which the marathon was run (see Stulweissenburg v Town of Orangetown, 223 AD2d 633, 634, 636 NYS2d 853 [1996]). Further, the public roadway in Brooklyn where the plaintiff alleges he was injured is not a “place of amusement or recreation” (Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758, 673 NYS2d 181 [1998]; see Fazzinga v Westchester Track Club, 48 AD3d 410, 851 NYS2d 278 [2008]).
The plaintiff’s remaining contentions are without merit. Florio, J.P., Miller, Dillon and McCarthy, JJ., concur.
Recreation Law 