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The Appellate Division has upheld the dismissal by the New York State Supreme Court of a claim brought against the creators, producers and broadcaster of the “Seinfeld” television series. [FOOTNOTE 1]In that action, plaintiff had sought relief for purported violation of ��50 and 51 of the New York Civil Rights Law, for being cast in a false light and for defamation. Plaintiff Michael Costanza asserts that the character of GeorgeCostanza as portrayed in the series is based upon him. Played by JasonAlexander, the fictional George Costanza, a long-time friend of leadcharacter Jerry Seinfeld, is constantly having problems with pooremployment situations, disastrous romantic relationships, conflicts withhis parents and general self-absorption. The interplay between George Costanza and the actors in the series has been responsible in some measure for the great success of the series. In support of his claim that his name and likeness are being appropriated, plaintiff points to similarities between him and the George Costanza character. Both are short, fat and bald; both knew Jerry Seinfeld from college and both came from Queens. Plaintiff asserts that the self-centered nature and unreliability of the George Costanza character are attributed to him, and this humiliates him. Plaintiff complains that defendants used his name and likeness without his permission, that they invaded his privacy and that he was portrayed in a negative, humiliating light. Plaintiff also claims that he was defamed by defendant Larry David. Plaintiff had written a book in which he set forth his relationship with Jerry Seinfeld and claimed to be the “real” George Costanza. David, in response to an inquiry as to his thoughts concerning that book, reportedly replied that plaintiff was a “flagrant opportunist” seeking to cash in when the hyperbole of the “Seinfeld” program’s final episode was at its peak. Defendants moved to dismiss plaintiff’s claims. In considering the motion, the Supreme Court read the allegations of the complaint as true and gave them every favorable inference. HISTORY: RIGHT TO PRIVACY It first traced the history of the development of a right to privacy in New York state. Responding to the roundly criticized decision involving the unsuccessful claim brought by Abigail Marie Roberson against a flour company for using her picture without her consent, the New York Legislature, early in the 20th century, enacted the nation’s first right to privacy statute, now codified as ��50 and 51 of the Civil Rights Law. Section 50 prohibits the use of a living person’s name, portrait or picture for advertising or purposes of trade without prior written consent. It provides for criminal penalties and �51 provides for a private right of action for damages and injunctive relief. Today, there is no common law right to privacy in New York and any relief must be sought under ��50 and 51. Against that background, the Supreme Court then examined the assertion that plaintiff’s name and likeness were appropriated without his consent and defendants’ argument that the relief provided by ��50 and 51 extends only to the use of a name or likeness for trade or advertising. It noted that the type of commercial exploitation prohibited and compensable if violated is solicitation for patronage and cited a lawsuit involving the play “Six Degrees of Separation” [FOOTNOTE 2]in which it was held that works of fiction and satire do not fall within the narrow phrases “advertising” and “trade.” Because “Seinfeld” is a fictional comedic presentation, it too does not fall within the scope of trade or advertising. The Supreme Court also held that plaintiff’s claim under ��50 and 51 is barred by the Statute of Limitations, which provides that this type of case must be brought within one year from the time a person learns of the improper use of his name or likeness. The Supreme Court also dismissed plaintiff’s defamation claim, holding that the use of the phrase “flagrant opportunist” in the context of the circumstances under which it was uttered is a statement of opinion. Defendants sought sanctions against plaintiff for pursuing a frivolous lawsuit. The decision indicated that such a lawsuit is one for which there is no genuine basis either in law or fact, or good faith argument for a change in the law. In the instant case, defendants had placed plaintiff on notice that his claim lacked any merit by writing to his lawyer citing the legal authority that barred the action prior to seeking a dismissal of the suit. At oral argument, the Supreme Court also noted, in particular, the long-standing New York law that bars claims for invasion of privacy and false light. Plaintiff’s attorney argued that he wanted to make new law and that all of the claims are well founded. However, the Supreme Court found that plaintiff and his attorney wanted to ignore New York’s law on commercial misappropriation of a person’s name and likeness and defamation, that none of the claims were well founded and the institution of the action as well as its continuation were without any basis in law or fact or any reasonable argument for change or modification of the law. It stated that plaintiff was informed that his case was based on nothing and, although a program about nothing can be successful, a lawsuit must have more substance. It awarded sanctions to the defendant in the sum of $2,500 against each of plaintiff and his attorney. In its opinion, the Appellate Division indicates that plaintiff does not contest the principle that New York places claims for invasion of privacy exclusively within the domain of ��50 and 51. It notes that it is undisputed that defendants never have used plaintiff’s actual name, or filmed plaintiff himself or made use of a photograph of plaintiff, in any form except during a “Seinfeld” episode in which plaintiff briefly appeared as a actor. The opinion states that the similarity of last names between plaintiff and the fictional character is not cognizable under the statute. ‘SIX DEGREES OF SEPARATION’CASE Citing the “Six Degrees of Separation”case noted above, the court indicated that works of fiction do not fall within the narrow scope of the statutory definitions of “advertising” or “trade.” Any alleged “commercial” use of the character in advertising was incidental or ancillary to the permitted uses. The court also rejects the argument of plaintiff that the Statute of Limitations runs anew with the airing of each episode featuring the George Costanza character. Rather, the court holds that the one-year statute of limitations ran from the inception of the series in 1989. Accordingly, the court upheld the dismissal of plaintiff’s invasion of privacy and Civil Rights Law causes of action. Regarding plaintiff’s claim for defamation, the court upheld the Supreme Court’s decision that the statements attributed to defendant David clearly constitute an expression of opinion that is not actionable. APPELLATE DIVISION The Appellate Division disagreed with the Supreme Court’s awarding of sanctions against plaintiff and his attorney. Although it agreed with defendants that plaintiff’s lawsuit warrants dismissal, it does not find that there was anything wrongful about the commencement or continuation of the action, which it believes was brought in good faith and was not frivolous. “Although plaintiff’s arguments are not persuasive, they constitute reasonable invitations to the motion court and this court to extend existing law to an unusual fact pattern.” Thus, the court vacates the award of sanctions against plaintiff and his counsel. Michael I. Rudell is a member of Franklin, Weinrib, Rudell & VassalloPC. He is past chairman of both the Forum on the Entertainment andSports Industries of the ABA and the Committee on Entertainment andSports Law of the Association of the Bar of the City of New York. ::::FOOTNOTES:::: FN1 Costanza v. Seinfeld, et al, New York Supreme Court, Appellate Division, First Department (Jan. 4, 2001). FN2 Hampton v. Guare, 195 A.D. 2d (1st Dept. 1993).

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