Company uses models' images without consent: Knowing, intentional use of images: Lost value of services: Verdict: Punitive damages

Law Reporter, May 2001

Hernandez v. Wyeth-Ayerst Labs., N.Y., New York County Sup. Ct., No. 605439/97, Oct. 27,2000.

Hernandez and Kilbanks, both models, were selected by Wyeth-Ayerst Laboratories to appear on advertising materials for a pharmaceutical product. Written vouchers specifying time and usage limitations on the models' images were executed. The company reportedly used the models' images on advertising materials without their consent until notified by the models' counsel to cease such use. The company then created new advertising materials with models who looked similar to Hernandez and Kilbanks.

Hernandez and Kilbanks sued the company under N.Y. Civ. Rights Law 50 and 51, which require written consent for the use of an image, photo, portrait, or likeness for trade or commercial benefit. Plaintiffs alleged defendant's unauthorized use of their images was knowing and intentional. Additionally, plaintiffs claimed that defendant's use of models whose appearances were similar to plaintiffs' was motivated by an intent to copy and trade upon plaintiffs' images, which had been successful in marketing defendant's products. Plaintiffs claimed the value of services rendered.

A jury awarded plaintiffs $224,000, including $200,000 punitive damages. The award will be divided equally between plaintiffs.

Plaintiffs' expert was Joe Hunter, modeling business, New York, N.Y. Defendant's expert was Beverly Adler, art buying, New York, N.Y.

Plaintiffs' Counsel

*Edward C. Greenberg, New York, N.Y.