FOR EDUCATIONAL USE ONLY                               Page 1181 Misc.2d 562, 693 N.Y.S.2d 897, 27 Media L. Rep. 2177, 199...
FOR EDUCATIONAL USE ONLY                               Page 2181 Misc.2d 562, 693 N.Y.S.2d 897, 27 Media L. Rep. 2177, 199...
FOR EDUCATIONAL USE ONLY                               Page 3181 Misc.2d 562, 693 N.Y.S.2d 897, 27 Media L. Rep. 2177, 199...
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Case brief assignment costanza v seinfeld


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Case brief assignment costanza v seinfeld

  1. 1. FOR EDUCATIONAL USE ONLY Page 1181 Misc.2d 562, 693 N.Y.S.2d 897, 27 Media L. Rep. 2177, 1999 N.Y. Slip Op. 99348 Michael Costanza, Plaintiff, Costanza asserts that the fictional character of v. George Costanza in the television program Jerry Seinfeld et al., Defendants. Seinfield is based upon him. In the show, George Costanza is a long-time friend of the lead character, Jerry Seinfeld. He is constantly Supreme Court, New York County, having problems with poor employment June 21, 1999 situations, disastrous romantic relationships, conflicts with his parents and general self- APPEARANCES OF COUNSEL absorption. Jonathan B. Fisher, New York City, for These aspects are part of the comedic interplayplaintiff. Davis, Wright, Tremaine L. L. P., New with Jerry Seinfeld and the other actors1 thatYork City (Elizabeth McNamara of counsel), for lead to the great success of the television showdefendants. Seinfeld. Plaintiff Michael Costanza points to various similarities between himself and the OPINION OF THE COURT character George Costanza to bolster his claim that his name and likeness are beingHarold Tompkins, J. appropriated. He claims that, like him, George Costanza is short, fat, bald, that he knew JerryA person is seeking an enormous sum of money Seinfeld from college purportedly as thefor claims that the New York State courts have character George Costanza did and they bothrejected for decades. This could be the plot for came from Queens. Plaintiff Michael Costanzaan episode in a situation comedy. Instead, it is asserts that the self-centered nature andthe case brought by plaintiff Michael Costanza unreliability of the character George Costanzawho is suing the comedian, Jerry Seinfeld, Larry are attributed to him and this humiliates him.David (who was the cocreator of the televisionprogram Seinfeld), the National Broadcasting FALSE LIGHT AND PRIVACYCompany, Inc. and the production companies for$100 million. He is seeking relief for violation The issues in this case come before the court inof New Yorks Civil Rights Law §§ 50 and 51, the context of a preanswer motion to dismiss. Atbeing cast in a false light, invasion of privacy this stage of a legal proceeding, the court mustand defamation. read the allegations of the complaint as true and give them every favorable inference (see, PLAINTIFFS CONTENTIONS Arrington v New York Times Co., 55 NY2d 433 [1982"). Even under this exceedingly favorableThe substantive assertions of the complaint are standard, plaintiff Michael Costanzas claims forthat the defendants used the name and likeness being placed in a false light and invasion ofof plaintiff Michael Costanza without his privacy must be dismissed. They cannot standpermission, that they invaded his privacy, that he because New York law does not and never haswas portrayed in a negative, humiliating light allowed a common-law claim for invasion ofand that he was defamed by defendant Larry privacy (see, Howell v New York Post Co., 81David when reports were published by a NY2d 115 [1993"; Freihofer v Hearst Corp., 65spokesman that plaintiff Michael Costanza had a NY2d 135 [1985"). As the New York Court oftenuous connection and was a "flagrantopportunist" seeking to cash in when the 1 The misappropriation of comedic ideas in thehyperbole of the Seinfeld programs final context of a Seinfeld episode was the issue inepisode was at its peak. Plaintiff Michael Leifer v Castle Rock Tel. (NYLJ, July 2, 1997, at 29, col 2 [Sup Ct, NY County"). Copyright © 2008 Thomson Reuters/West
  2. 2. FOR EDUCATIONAL USE ONLY Page 2181 Misc.2d 562, 693 N.Y.S.2d 897, 27 Media L. Rep. 2177, 1999 N.Y. Slip Op. 99348Appeals explained, The court now turns to the assertion that plaintiff"While legal scholarship has been influential in Michael Costanzas name and likeness are beingthe development of a tort for intentional appropriated without his written consent. Thisinfliction of emotional distress, it has had less claim faces several separate obstacles. First,success in the development of a right to privacy defendants assert that plaintiff Michael Costanzain this State. In a famous law review article has waived any claim by appearing on thewritten more than a century ago, Samuel Warren show.2 The statute clearly provides that writtenand Louis Brandeis advocated a tort for invasion consent is necessary for use of a persons nameof the right to privacy. Warren and Brandeis, or likeness (see, Kane v Orange County Publs.,The Right to Privacy, 4 Harv L Rev 193 (1890). 232 AD2d 526 [2d Dept 1996"). However,Relying in part on this article, Abigail Marie defendants note the limited nature of the reliefRoberson sued a flour company for using her provided by Civil Rights Law §§ 50 and 51. Itpicture, without consent, in the advertisement of extends only to the use of a name or likeness forits product (Roberson v Rochester Folding Box trade or advertising (see, Freihofer v HearstCo., 171 NY 538). Finding a lack of support for Corp., at 140). The sort of commercialthe thesis of the Warren-Brandeis study, this exploitation prohibited and compensable ifCourt, in a four to three decision, rejected violated is solicitation for patronage (see, Delanplaintiffs claim. v CBS, Inc., 91 AD2d 255 [2d Dept 1983"). In a case similar to this lawsuit involving the play"The Roberson decision was roundly criticized "Six Degrees of Separation", it was held that(see, Savell, Right of Privacy-Appropriation of a "works of fiction and satire do not fall within thePersons Name, Portrait, or Picture for narrow scope of the statutory phrasesAdvertising or Trade Purposes Without Prior advertising and trade " (Hampton v Guare, 195Written Consent: History and Scope in New AD2d 366 [1st Dept 1993"). The SeinfeldYork [Right of Privacy-Appropriation", 48 Alb television program was a fictional comedicL Rev 1, 11-12 [collecting articles"). The presentation. It does not fall within the scope ofLegislature responded by enacting the Nations trade or advertising (see, Freihofer v Hearstfirst statutory right to privacy (L 1903, ch 132), Corp., supra; Hampton v Guare, supra).now codified as sections 50 and 51 of the CivilRights Law. Section 50 prohibits the use of a Plaintiff Michael Costanzas claim for violationliving persons name, portrait or picture for of Civil Rights Law §§ 50 and 51 must beadvertising or trade purposes without prior dismissed. Additionally, plaintiff Michaelwritten consent (Civil Rights Law § 50). Section Costanzas claim under Civil Rights Law §§ 5050 provides criminal penalties and section 51 a and 51 is barred by the Statute of Limitations.private right of action for damages and This type of case must be brought within oneinjunctive relief." (Howell v New York Post Co., year of when a person learns of the improper useat 122-123.) of his name or likeness (see, Castel v Sherlock Corp., 159 AD2d 233 [1st Dept 1990").In New York State, there is no common-lawright to privacy (see, Freihofer v Hearst Corp.,at 140) and any relief must be sought under thestatute (Civil Rights Law §§ 50, 51). DEFAMATION 2 While there is an exception for newsworthy events or matters of public interest, this CIVIL RIGHTS LAW §§ 50, 51 exception is not relevant to this case. Copyright © 2008 Thomson Reuters/West
  3. 3. FOR EDUCATIONAL USE ONLY Page 3181 Misc.2d 562, 693 N.Y.S.2d 897, 27 Media L. Rep. 2177, 1999 N.Y. Slip Op. 99348Plaintiff Michael Costanzas final claim involves continuation have been without any basis in lawthe reports that defendant Larry David or or fact or any reasonable argument for a changeindividuals on his behalf stated that he was a or modification of the law, and that sanctions are"flagrant opportunist who barely knew Jerry appropriate. Essentially, plaintiff was informed(Seinfeld) less than a year." An exhibit to the that his case was based on nothing. While adefendants moving papers is a copy of a book program about nothing can be successful, aby plaintiff Michael Costanza entitled "The Real lawsuit must have more substance. The courtSeinfeld". The book was published at the time of awards sanctions in the sum of $2,500 eachthe final episode of the show Seinfeld. The use against plaintiff Michael Costanza and hisof the phrase "flagrant opportunist" in the attorney.context of the circumstances under which it wasuttered is a statement of opinion (see, Shinn v A copy of this decision has been faxed toWilliamson, 225 AD2d 605 [2d Dept 1996"). counsel for plaintiff Michael Costanza andThis claim of defamation is also dismissed.3 defendants.4 The court will not entertain any application for reargument, review or stay andFinally, defendants seek sanctions against any such relief should be sought through theplaintiff for pursuing a frivolous lawsuit. A appellate process.frivolous lawsuit is one for which there is nogenuine basis either in law or fact, or good-faithargument for a change in the law (see, Matter of Copr. (c) 2008, Secretary of State,Minister, Elders & Deacons of Refm. Prot. State of New York.Dutch Church v 198 Broadway, 76 NY2d 411[1990"; Matter of Winters v Gould, 143 Misc 2d44 [Sup Ct, NY County 1989"). In this regard,defendants placed plaintiff Michael Costanza onnotice of the lack of any merit by writing to hislawyer citing the legal authority that barred thisaction prior to seeking dismissal of the lawsuit.At oral argument, the court also noted inparticular the long-standing New York law thatbarred claims for invasion of privacy and beingplaced in a false light. While plaintiffs attorneystated that he wanted to make new law and that"all of these claims are well *567 founded", thecourt finds rather that plaintiff Michael Costanzaand his attorney wanted to ignore New Yorkslaw on commercial misappropriation of apersons name and likeness and defamation, that 4none of the claims were well founded and the The court notes that a letter from Michaelinstitution of this action as well as its Costanza was received on June 11, 1999. This ex parte communication (submitted without3 Defendants Larry David and Shapiro/West also notifying either his own or opposing counsel)assert that there is no jurisdiction over them due was not considered by the court. It was returnedto their lack of connection to New York State. In to plaintiffs counsel with instructions to directlight of the courts dismissal of this action on his client not to contact the court. A copy of theother grounds, it is not necessary to reach this ex parte letter was sent by the court toissue. defendants counsel. Copyright © 2008 Thomson Reuters/West