The following numbered papers were used on this motion: NYSCEF Document Numbers 12-17, 20-21, 23-33. ORDER Upon the foregoing papers, having heard oral argument, the within motion is determined as hereinafter set forth. Plaintiff’s Complaint Plaintiff, for his Complaint, alleges that while attending Brooklyn’s Afropunk Festival on August 25, 2018, he agreed to be photographed by a New York Times (“NYT”) journalist and authorized publication of said photo in an August 28, 2017 NYT article titled “Street Style: Afropunk 2018.” The image, in which Plaintiff wore “a canary yellow durag with a cape-like train, emblazoned with hundreds of rhinestones,” has been publicly reproduced during the years following, to which Plaintiff filed no complaints. Every year Defendant sponsors a Black History Month Artist Series promoting Black creatives whose works are incorporated into apparel displayed online and in Defendant’s physical locations and galleries. In February 2022 and without any knowledge of Plaintiff’s photo, Defendant entered into a Licensing Agreement (“the Agreement”) with Samuel Olayombo (“the Artist”) with respect to his painting, “Slum Flower Titus,” depicting a man wearing a long cape-like pink durag with no rhinestones, in which the Artist represented that he had full rights to the licensed work, that the image was used rightfully and legally, and that no third party would have valid claims based on the artwork. Defendant featured the painting in its Black History Month celebration during February 2023 in reliance of the Artist’s representations. Plaintiff alleges the painting was adapted from the photograph and claimed Defendant used his likeness without authorization. When Defendant refused to comply with demands such as entering into a business collaboration, Plaintiff brought suit, asserting a violation of his right to privacy and right of publicity under New York Civil Rights Law §§50-51 and seeking compensatory damages of “no less than $500,000,” punitive damages, and equitable relief. (See generally NYSCEF Doc No. 15, Complaint.) Defendant’s Contentions in Support of CPLR 3211 Motion to Dismiss First, Defendant argues that the use of the painting in its Black History Month Artist Series is protected by the First Amendment and therefore cannot be the basis of a claim under NYCRL §51. Defendant maintains Plaintiff has no recourse under §51 as artistic expressions do not require consent and Plaintiff admitted “Slum Flower Titus” is a work of expression by referring to it as a “painting” and “artwork” that “has been shown at galleries internationally.” Defendant cites to Miczura v. Knowles (2015 WL 8653578, *2 [Sup Ct, NY County, Dec. 10, 2015, index no. 162333/14] ["[c]ourts have consistently held that Civil Rights Law §51 does not apply to works of literary and artistic expression”]) and Foster v. Swenson (128 AD3d 150, 156 [1st Dept 2015] ["when a plaintiff's name, portrait, picture or voice is used in a work of artistic expression without her written consent, she has no recourse pursuant to Civil Rights Law §51"]) (see NYSCEF Doc No. 13, Mem of Law in Support). Second, Defendant contends Plaintiff is not entitled to any damages or relief as his claim fails to plead entitlement to equitable relief, compensatory damages, or punitive damages. Defendant claims Plaintiff is not entitled to equitable relief in the form of a “public apology” as such relief is generally granted in the form of injunctions. Furthermore, there is nothing to restrain or prevent as, by Plaintiff’s own admission, Defendant no longer displays or publishes the merchandise reflecting the artwork as Defendant promptly “removed most…of the unauthorized content from its website” (see NYSCEF Doc No. 15, Summons and Verified Complaint 32; NYSCEF Doc No. 13, citing Gibson v. SCE Grp., Inc., 391 F Supp 3d 228, 250 [SDNY 2019] ["Because Plaintiffs have not provided any evidence of a knowing violation of §51, and because Defendants have already removed the challenged picture, only compensatory damages are available."]). Defendant argues that Plaintiff is not entitled to compensatory damages because Plaintiff fails to plead any facts to suggest a “fair market value” for his likeness apart from its alleged adaptation in the artwork (see NYSCEF Doc No. 15, Summons and Verified Complaint; NYSCEF Doc No. 13, Mem of Law in Support, citing Gibson, 391 F Supp 3d at 250 ["[c]ompensatory damages are the fair market value of the use for the purposes of trade of [Plaintiff's] face, name and reputation”]). Defendant further argues that Plaintiff failed to offer facts to support how he suffered “severe mental and emotional distress,” making him feel as though he “needed to hide from the outside world to protect himself from the near constant bombardment of questions and comments related to the…exploitation of his image” from an inability “to generate income from creative opportunities,” let alone what those opportunities were, how the painting affected them, or how much said opportunities were worth (see NYSCEF Doc No. 15, Summons and Verified Complaint
