NEW YORK – A part-time actress and elementary school teacher has won her bid to remain anonymous in a $5 million suit against a jewelry company that she claims violated her civil rights by using her image in an Internet ad with a “decidedly pornographic look.”
In the 35-second spot, entitled “Rock Her World,” the 37-year-old woman, identified only as “Jane Doe” in the action, reportedly fakes an orgasm while clad in lingerie and a diamond necklace.
Doe claims the commercial, which was widely viewed on YouTube, allegedly resulted in her being the subject of “hundreds of demeaning and insulting comments.” She is claiming loss of reputation, lost earnings and emotional distress.
In Doe v. Szul Jewelry Inc., 604277/07, Acting Supreme Court Justice Shirley Werner Kornreich of Manhattan held that since Szul Jewelry knew the woman’s name, “the only purpose revelation of plaintiff’s name could have would be to further discomfit plaintiff and perhaps deter her from litigating the matter. In fact, revelation of plaintiff’s identity would undermine the litigation by denying a portion of the relief ultimately requested in the action.”
According to the decision, on Nov. 2, 2007, Doe responded to a casting call placed by the production company, Q2 Entertainment, which sought an “average joe” and a woman, who was “a real stunner” with a “great body.” The ad specified that it was a “plus” if the woman had “good comedic skills.”
During her audition, Doe’s complaint alleges that she was told the ad centered around a “shy, average joe [who] would place a necklace on the neck of a beautiful woman and – due to the special qualities of the necklace – cause the woman to get excited.”
According to the complaint, while most of the filming was “comedic” in nature, after the male actor placed the necklace on Doe, she was told to lie down and “feign excitement,” breathe heavily and move “her hands from the chest area to upwards toward the back of her neck, for a minute or two.”
Doe alleges that “as an actress attempting to professionally follow her director’s instructions,” she “complied with these directions.”
While she received $200 for the shoot, Doe never signed a release or consented to the use of her likeness “to simulate a female having an orgasm or otherwise experiencing sexual pleasure,” according to the complaint.
On Nov. 21, 2007, the “Rock Her World” commercial appeared on YouTube. A few days later, the decision notes that Doe e-mailed Mitchell Goldman, principal of Q2. She maintained that she “was really freaked out” and “scared” after finding her name linked to the Szul’s commercial, and asked for her name to be removed from the site.
In early December, Doe again wrote Goldman, stating that “no one ever mentioned” that the video would go “straight to YouTube,” and that she was “deathly afraid of what it’s going to do to my career working with children.”
By Dec. 30, 2007, over 11,000 viewers had seen the YouTube video. According to papers filed with the court, hundreds of viewers posted comments on the Internet, calling Doe such names as a “hot little slut monkey,” “idiot” and “dumb bitch.”
On Dec. 31, Doe filed suit against Szul, Q2 and Goldman seeking $5 million in compensatory and punitive damages and a permanent injunction preventing them from using her image.
After the media got wind of the action, viewership of the commercial soared to nearly 700,000, until Szul removed it from the Internet on Jan. 17.
Szul and the other defendants moved to dismiss the action. In the alternative, they maintained that Doe should be barred from bringing a suit under a pseudonym because doing so violated the presumption of openness in judicial proceedings and hinders their ability to conduct discovery.
But Justice Kornreich disagreed on both counts.
She noted that the state civil rights statute allows individuals to bring a claim when their name, image or voice is used without their written consent (New York Civil Rights Law §§50-51).
Since the $200 check Doe cashed and other evidence “does not conclusively establish that plaintiff consented to the use of her photograph and voice,” Kornreich allowed the suit to proceed against Szul and Q2, although she dismissed the action against Goldman in his personal capacity.
Moreover, the judge held that Doe’s privacy interests warranted her use of a pseudonym.
While a “dearth of case law in New York” addresses whether an individual can proceed by pseudonym, “courts have discretion in determining the issue and do so by balancing the privacy interests of the party seeking anonymity against the general presumption favoring open trials and the risk of prejudice to the opposing party,” Kornreich wrote.
Factors that should be weighed in this analysis include the motive of the party wishing to remain anonymous, the extent to which anonymity has been preserved, whether identification would result in harassment and discourage legal redress, “whether the action is against a governmental identity,” the magnitude of the public interest at stake, and the risk of prejudice if the request is granted, the judge wrote.
Noeleen G. Walder is a reporter with the New York Law Journal, a Recorder affiliate.
