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Defamation, Right of Publicity and Sovereign Immunity

By Barry Skidelsky
Edited by Elissa D. Hecker

The above issues and more were implicated in a recent case involving a photograph of a woman. The photo was licensed by Getty Images ("Getty") to the New York State Division of Human Rights ("DHR"), in connection with DHR's public service announcement ("PSA") campaign intended to enhance public awareness that HIV-positive New Yorkers should not be the targets of discrimination.

The photographer, who originally took the woman's picture in connection with an online magazine article about New Yorkers' music interests, later sold the photograph to Getty without the woman's knowledge or consent. The photographer had also neglected to obtain a release from the woman, and in turn Getty mistakenly led DHR to believe that she had signed one.

Failures by each of those involved to conduct proper due diligence, if not to consult with counsel before the you-know-what hit the fan, obviously contributed to the creation of a messy situation. A friend of the woman saw the advertisement in print, and alerted her to its existence (including the implication that the woman had AIDS). The woman then commenced litigation against New York State in the NY Court of Claims. That court granted her motion for summary judgment on the issue of liability on her defamation "per se" and Civil Rights Law §50 and §51 claims.

New York State then appealed. On appeal, the First Department modified to deny the Claimant summary judgment on her Civil Rights Law claims, to grant New York State summary judgment dismissing those claims, and to grant New York State summary judgment dismissing the standard defamation claim. In part, the appellate court held that the State of New York is entitled to sovereign immunity against the Civil Rights Law claims asserted.

The case is interesting for this and other reasons, including additional matters of interpretation regarding New York State's Right of Publicity as embodied in the Civil Rights Law (a proposed modification of which is currently pending before the New York State legislature), differences between per se and standard defamation, and whether people with HIV or AIDS have a "loathsome disease."

See Nolan v. State of New York, 2018 NY Slip Op 00269 (decided January 16, 2018): http://nycourts.gov/reporter/3dseries/2018/2018_00269.htm

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This page contains a single entry from the blog posted on February 7, 2018 8:51 PM.

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