Will a Manhattan jury have to figure out whether a gay man can be identified by the pattern of his chest hair? Maybe, if the lawsuit brought by Doug Hill and James Moritz against plastic surgeon Douglas Steinbrech for the unauthorized use of their images in advertising material actually goes to trial in New York County Supreme Court.
Justice Cynthia Kern, on September 28, granted summary judgment to Dr. Steinbrech on some of the gay couple’s claims, but she refused to do so on others, finding, for example, that a jury should decide whether a photograph of Moritz’s torso running from his chin to his knees would be recognizable enough based on the distinguishing features of his chest and facial hair. If they are, that would constitute an unauthorized commercial appropriation of his image under New York’s Civil Rights Law.
Hill and Moritz, who are fashion photographers, describe themselves as a “well-known gay couple in Chelsea.” This lawsuit may increase their fame!
Chelsea gay couple claims their plastic surgeon used identifiable body shots of them in his ads
Between January and October 2012, the two men retained the services of Steinbrech and his company, Gotham Plastic Surgery, to get pec enhancement for Hill and butt tightening for Moritz. Steinbrech made “before and after” photographs to document his work and also made a video recording of Hill after completing the procedures.
Hill and Moritz claim that in May 2014 they were surprised to find that their “before and after” photos appeared on “numerous commercial websites” without their consent. They provided Justice Kern with photos and screen shots which they claim “depict their pre- and post-operative states,” although in some of these images no faces are shown. The images, from sites such as boyculture.com, gaytube.com, and YouTube.com, allegedly included shots of Hill’s torso in pre- and post-operative states and of Moritz’s buttocks and torso in pre- and post-operative states.
Kern wrote that in the YouTube videos, Hill’s face and torso tattoos are visible, while in the still pictures, his face is not visible but his tattoos on his torso and shoulder are. The most revealing alleged picture of Moritz is a frontal shot from chin to knees.
The two men advanced five different legal claims, but Kern explained that the Privacy Act, which provides that a person’s image cannot be used without their written consent for “advertising or trade” purposes, preempted all other claims. Anyone whose images are used without their consent can sue for damages, including punitive damages for intentional violations of the statute.
Kern rejected the argument that Steinbrech could not be liable for any picture where a face is not shown. “Rather,” she wrote, “The question is whether the objectionable material presents a recognizable likeness of the plaintiff,” which is “generally a jury question.”
Regarding the pictures in Steinbrech’s ads where Hill’s face could be readily identified, Kern granted summary judgment in his favor since Steinbrech submitted no consent forms authorizing such use.
Kern denied Steinbrech summary judgment for his alleged use of body images of Hill that showed tattoos since the patient signed a consent form that specifically ruled out the use of such images. Since they did show his tattoos, “which are a distinguishing feature,” wrote Kern, the jury would have to decide whether they were recognizable as him.
Moving on to the Moritz photos, Kern first noted that there was a factual dispute about whether the photos he submitted to the court were in fact used in any advertising. A jury would have to sort that out and also decide whether the images, if used in ads, were recognizably Moritz. Focusing on the frontal image that ran from the knees to the chin, judge noted, “The only portion of Moritz’s face depicted in the picture is the lower portion of Moritz’s chin. However, the picture contains distinguishing features such as Moritz’s facial and chest hair. Thus, based on these distinguishing features, the court finds that a jury could find that Moritz is capable of being identified by the picture alone and, as such, determination of that issue must be left to the jury.” Since Moritz did not authorize use of any images of his face, a picture of his chin that was recognizable would exceed the scope of the written release he signed.
Bringing up the rear in Kern’s consideration was Moritz claim regarding pictures that he alleges depict his buttocks pre- and post-operative. Finding that “the pictures are devoid of any distinguishing or identifying features,” she determined that he could not pursue a claim regarding them. As a matter of law, Moritz’s butt is undistinguished and anonymous.
One irony of the case is that it was assigned –– albeit randomly –– to a lesbian judge. Now, the question is who might volunteer for jury duty to determine if Hill’s tattoos and Moritz’s chest and facial hair are enough to make a visual ID of the men.
