NOBLE v. TOWN SPORTS INTERNATIONAL INC

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Supreme Court, Appellate Division, First Department, New York.

Richard NOBLE, et al., Plaintiffs-Appellants, v. TOWN SPORTS INTERNATIONAL, INC., et al., Defendants-Respondents.

Decided: April 27, 2000

SULLIVAN, P.J., NARDELLI, TOM, WALLACH and SAXE, JJ. Stephen A. Weingrad, for Plaintiffs-Appellants. Saul B. Shapiro, for Defendants-Respondents.

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered April 9, 1999, dismissing plaintiffs' complaint, and bringing up for review an order, same court and Justice, entered December 23, 1998, granting defendants' motion to dismiss the complaint pursuant to CPLR 3211, unanimously affirmed, without costs.

 The complaint fails to set forth cognizable causes of action for breach of a license agreement or invasion of privacy under Civil Rights Law §§ 50 and 51.   The licensing agreement expired before the alleged unauthorized use of the photographs, and thus, plaintiffs have no contract to sue on (see, F.N.S. Atl. Co., Inc. v. City of New York, 201 A.D.2d 366, 607 N.Y.S.2d 336).   Moreover, the models whose photographs are at issue do not have an invasion of privacy cause of action under the Civil Rights Law because they provided written consent, without limitation, to the use and reuse of the photographs for advertising purposes and received payment for the use of their photographs, thus waiving any invasion of privacy claim (see, Cory v. Nintendo of Am., Inc., 185 A.D.2d 70, 592 N.Y.S.2d 6).

 Finally, we also agree with the motion court's conclusion that plaintiffs' unjust enrichment cause of action is preempted by the Federal Copyright Act.

MEMORANDUM DECISION.