Helm Claim Has No "Weight"

Helm v BBDO Worldwide, Inc.

2012 NY Slip Op 01573

Decided on March 1, 2012

Appellate Division, First Department (New York)

Plaintiff's claim under New York Civil Rights Law § 51, which prohibits the use of a person's "name, portrait, picture or voice" for advertising or trade purposes without written consent, was properly dismissed. By contract, plaintiff broadly granted his record company the "exclusive and perpetual right to use and control" plaintiff's sound recordings and the "performances embodied therein," which included the recording that was licenced to and used by defendant in a third-party television commercial. Although plaintiff claims that he never gave written consent for the use of his voice, as it is embodied in that recording, for the instant advertising purpose, he unambiguously authorized defendant to license the recording in the contract (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).

Common-Law Copyright Claim Time Barred; No Breach or Unjust Enrichment

Goeke v. Naxos of America, Inc., 650606/09, NYLJ 1202541596753, at *1 (Sup., NY, dec. Jan. 27, 2012) (Fried, J).

Plaintiff, a world-renowned lyric tenor, alleged that Defendants have been engaged in the unauthorized distribution and sale of five audio and audiovisual recordings of live opera and choral performances, in which plaintiff appeared as a featured artist. Plaintiff's cause of action for breach of contract against the defendant record distributor was dismissed because the label was not party to any contract with plaintiff. Plaintiff's causes of action for unjust enrichment against the defendant record distributor also was dismissed because there was no connection or relationship between the parties. Plaintiff's cause of action for common-law copyright infringement under New York law was dismissed because " the only judicially recognized relief in New York for the violation of such right are the protections afforded against the commercial misappropriation of a person's name, picture, or voice that are provided by Civil Rights Law §§50 and 51." This claim was dismissed under the applicable one-year limitations period. Additionally, Plaintiff's common law claim for unjust enrichment, based on the unauthorized appropriation of a name, picture, or voice, was subsumed under the time-barred Civil Rights Law §§50 and 51 claims.