Cease and Desist Letter for Infringement of Right of Publicity
[date]
VIA FEDERAL EXPRESS
[address]
Re:	Unauthorized Use of Likenesses of [Name of Individual] for Advertising and/or Trade in Violation of N.Y. Civil Rights Law §§ 50-51
Dear Sir or Madam,
We are counsel to [name of individual] and write you on his/her behalf. [Name of individual] is a professional [description of profession], well-known in the [type of profession].
It recently came to our attention that the [date] edition of [name of publisher]’s (“Publisher”) promotional magazine (“[name of magazine]”) (“Magazine”) prominently features a photographic image of [name of individual], which is used in connection with promoting a particular [description of goods/services]. (A photocopy of the page of Publisher’s Magazine containing the image at issue is attached hereto for your reference.) We understand that Publisher’s Magazine is distributed to Publisher’s customers in its stores across the United States, and worldwide.
[Name of individual] is deeply dissatisfied with the use and publication of [his/her] likeness in Publisher’s Magazine on several levels. [He/She] would not have approved the appearance in which [he/she] is presented to the world in the photo, and is extremely distressed with the light in which [he/she] is shown. [He/She] is dissatisfied with Publisher’s implied endorsement of and association with the [description of goods/services] referenced in the caption to the photo, as well as with the implied endorsement and association with Publisher.
[Name of individual] did not release the use of [his/her] likeness in Publisher’s Magazine; in fact, Publisher never asked for [his/her] approval for the use of [his/her] likeness in what is clearly Publisher’s marketing material. And, had Publisher sought [his/her] approval in advance of publishing and distributing [his/her] likenesses in Publisher’s Magazine, [he/she] would not have given [his/her] consent.
It is clear that [name of individual]’s likeness is used in Publisher’s Magazine to educate Publisher’s customers as to a [description of goods/ services] for the purpose of stimulating demand and sales of products within that style offered in [name of store]’s stores—where the Publisher’s Magazine is distributed to the public.
As such, Publisher’s uses of [name of individual]’s likeness in Publisher’s Magazine constitutes violations of New York Civil Rights Law §§ 50 & 51, for using [his/her] likeness for advertising purposes and/or purposes of trade without their prior written approval. See Zoll v. Jordache Enters. Inc., No. 01 Civ. 1339(CSH), 2003 WL 1964054, at *7, 16, 19 (S.D.N.Y. 2003) (“Although the publication of an individual’s image in conjunction with newsworthy items of public interest is not actionable under §§ 50, 51, this protection does not extend to publications that constitute an ‘advertisement in disguise’…Where an individual’s name or likeness is used ‘for the purpose of soliciting purchasers for defendant’s products the advertising prong of the statute is violated…The advertising purpose prong ‘is to be construed liberally’…The court should focus on whether the use of plaintiff’s image was ‘sufficiently related to a commercial end’ or ‘mercantile rewards’…Where the use of a publication is primarily for commercial purposes and the public interest aspect of the publication is merely incidental, the newsworthiness exception does not apply”); Beverley v. Choices Women’s Medical Center, Inc. 78 N.Y.2d 745, 752-53 (1991) (“[A] commercial advertiser…may not unilaterally neutralize or override the long-standing and significant statutory privacy protection by wrapping its advertising message in the cloak of public interest…The ‘advertisement in disguise’ caveat to the newsworthiness/public interest exception reinforces this analysis, as does the overarching statutory prohibition against unauthorized privacy invasions for ‘advertising purposes’…[T]o hold otherwise would diminish the statutory privacy protection against exploitation of a person’s name or likeness. Ordinary citizens are entitled to the protective mantle of this statute, and persons with professional reputations should receive no less coverage in this respect”); Selsman v. Univ. Photo Books, Inc., 18 A.D.2d 151, 152 (1st Dept. 1963) (“Although in a broad sense the manual serves an educational purpose, nevertheless it does advertise the Minox camera. The ultimate objective of commercial advertising is to educate the public as to the advantages and virtues of commodities and thereby stimulate demand therefor. The provision of section 50 of the Civil Rights Law with regard to ‘uses for advertising purposes’ is to be construed liberally and the publication of plaintiff’s picture is within its scope”).
New York Civil Rights Law Section 51 expressly provides that, in addition to monetary damages, [name of individual] is entitled to seek injunctive relief to remedy the unauthorized use of [his/her] likeness, as well as to prevent and restrain Publisher from engaging in further use of [his/her] likeness. Accordingly, on behalf of [name of individual], we hereby demand that Publisher immediately take the following steps:
[a] Cease and desist any and all further efforts to manufacture, market, promote, distribute, or otherwise use in commerce, the [date] edition of Publisher’s Magazine in which [his/her] likeness is used;
[b] Withdraw from the market each and every copy of the [date] edition of Publisher’s Magazine, and either destroy them or remove the unauthorized image of [name of individual] from every copy thereof; and
[c] Deliver to the undersigned a payment in the amount of $[amount], for the unauthorized use of [name of individual]’s likeness from the first distribution of the [date] edition of Publisher’s Magazine until all copies thereof featuring [his/her] likeness has been withdrawn from the market.
In the alternative, while [name of individual] is greatly displeased with the manner in which [his/her] likeness has been used, [he/she] is open to a monetary settlement payment in the amount of $[amount], in exchange for a release authorizing the use of [his/her] likeness in the [date] edition of Publisher’s Magazine (and thereby permitting continued distribution thereof).
We request that you provide assurances within five (5) business days of the dates of this letter of Publisher’s commitment to satisfy the above steps. Though we hope and expect to resolve this matter quickly and amicably, please be advised that we have been authorized to commence litigation should you fail to timely respond and resolve this matter. Please be further advised that if we are forced to proceed with legal action to vindicate [name of individual]’s rights, we will seek the maximum damages available under the law, as well as injunctive relief forcing Publisher to remedy the situation by withdrawing all copies of the [date] edition of Publisher’s Magazine. Moreover, once legal action is commenced, we will require that [name of individual]’s attorney’s fees and costs incurred in this matter be included as part of any settlement to be reached prior to a verdict at trial.
Please contact me at [telephone number] or via email at [email address] to provide the requested assurances, as well as if you would like to discuss my clients’ claims further. I look forward to receiving your response, and to working out a prompt and amicable resolution.
This letter is without prejudice to [name of individual]’s rights, remedies, claims, and arguments, all of which are expressly reserved, including the right to proceed to litigation without further notice if a final resolution cannot be reached.
Sincerely,
[name and firm of individual’s counsel]
Enc.