Stephano v. News Group Publications, Inc.

Fein, J. (concurring).

I concur that there are issues requiring a trial. However, I differ with other aspects of the *293 majority opinion. At issue here and unresolved on the papers before the court is the nature of the agreement between the plaintiff and the defendant respecting the use of the photos taken by the defendant. It appears that there was an agreement of some kind. If plaintiff agreed to have his photograph taken for a fee for use in an article in the Magazine, as seems conceded, and there was a discussion concerning the nature of the article in which the photograph was to be used, the issue is whether the agreed upon use encompassed the actual use (Brinkley v Casablancas, 80 AD2d 428, 434).

Although there was no writing, as required by sections 50 and 51 of the Civil Rights Law, it may well be that plaintiff should be foreclosed because, as a professional model, he agreed to such use. The very fact that plaintiff is a professional model who has apparently modeled for this magazine on a number of prior occasions, for use in similar articles, would appear to indicate that there was such an agreement which ought to be enforced. (See Lomax v New Broadcasting Co., 18 AD2d 229; Booth v Curtis Pub. Co., 15 AD2d 343, affd 11 NY2d 907.) The rule announced in those cases that oral consent is insufficient is of doubtful application to a professional model, paid a fee for his services. Plaintiff’s affidavit states: “When consenting orally to do this job, I agreed that my picture could be used for inclusion in one article only on men’s fall fashions.” The content of the conversation is not given by either side. A trial may well be more revealing. In Lopez v Triangle Communications (70 AD2d 359) the infant plaintiff was not a professional model and there appears to be no evidence that he was told his photograph would appear in a feature devoted to makeup, clothing and hairstyling. Plainly the depiction was not in a commercial setting. Although oral consent of the infant’s parent was given, the case was decided on the basis of the defense here urged.

Similar is Pagan v New York Herald Tribune (32 AD2d 341, affd 26 NY2d 941), where the plaintiff was not a professional model and apparently had no agreement with the defendant, so that the sole issue was the nature of the article and whether it constituted an advertisement in disguise.

*294 Although the statute requires a writing, it may be that a defense should be available even in the absence of a writing where it is plain that the parties specifically agreed upon the use now complained of (see Welch v Mr. Christmas, 57 NY2d 143; Brinkley v Casablancas, 80 AD2d 428, supra).