“The Pie” – Right of Privacy

While walking in New York, Kramer notices that a mannequin in Rinitze, a department store, looks exactly like Elaine. Later in the episode, Elaine is infuriated by how the store dresses the mannequin and she threatens to press charges, with Jerry pretending to be her lawyer and citing case-law precedent as support. Does Elaine have a valid argument? Is the store liable for damages to Elaine? And what’s up with the cases that Jerry references?

They got a mannequin in there that looks exactly like Elaine.

There are two New York statutes that could be applicable to this type of case: one criminal statute and a similar civil statute. While Elaine says she wants to “press charges,” which usually means a criminal investigation, we will focus on the civil damages part of the statute since we can assume she would rather be compensated monetarily than have the store owner go to jail. In addition, a successful civil suit would likely lead to a court order (known as an injunction) to force the store to remove the mannequin as well.

(Note for our expert lawyer readers: New York DOES NOT recognize a common law right of privacy, it only recognizes the statutory provision.)

The New York civil statute on the right of privacy states:

“Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided [in section 50] may maintain an equitable action … to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use.”

To succeed, Elaine will need to show three elements: (1) her name, portrait, picture or voice was used; (2) for commercial or trade purposes; (3) without her consent.

We first have to analyze what qualifies as a “portrait” or “picture.” Does this mean only a literal photograph? Or does something like a mannequin which looks like Elaine, but is not actually an actual picture or painting of her, count as well?

Boy, the resemblance is uncanny.

Luckily for Elaine, the New York courts have ruled that “any recognizable likeness, not just an actual photograph, may qualify as a portrait or picture.” A New York court in 1941 specifically found that a “manikin” (an older spelling of mannequin) is included in the definition of “portrait” or “picture.” The court in 1941 stated: “The statute is not confined to the use of photographs. The words “picture” and “portrait” are broad enough to include any representation, whether by photograph, painting or sculpture. The use of a three-dimensional representation is just as violative of the statute as that of a two-dimensional one.”

Other examples of where New York courts have found a depiction of an individual to violate the statute include a drawing of an African American boxer in a ring which resembled Muhammad Ali and a “look-alike” model use in advertisement to represent former first lady Jacqueline Kennedy Onassis.

I believe there is some legal precedent...

So far so good for Elaine.

The best argument in favor of the department store would be for it to argue that the depiction of the mannequin was not a close enough representation of Elaine to count as violating the statute. But the case-law is most likely not going to provide much help to the store. There are two high profile celebrity cases where a court found that the representation did not violate a right to privacy. In one, the court found that an average viewer would not confuse an M&M dressed like The Naked Cowboy to be confused with the cowboy’s actor Robert Burck. Similarly, a California court analyzing a statute similar to the one in New York found that a depiction of a robot dressed in formal wear flipping tiles on a screen would not be mistaken for Wheel of Fortune’s Vanna White (Expert note: the court allowed the common law claim for damages to proceed). Take a look for yourself at the links to see the representations and the individuals, and you’ll see that they are not nearly as similar as Elaine and the mannequin.

I don't know about you, but I'm getting a hankering for some Doublemint gum.

The department store might also argue that its use of the mannequin is protected by the freedom of speech provisions of the First Amendment. But this argument is unlikely to proceed, as the portrayal of Elaine is neither a newsworthy event, a work of art, nor provides any other value besides its pure commercial aspect.

As for the final two elements of the statute, it seems pretty clear that the mannequin is being used for commercial purposes and there is little doubt that Elaine has not consented to its use.

We think it is incredibly likely that Elaine would have a case against the department store, Rinitze, for the removal of the mannequin and any damages that would result from its use. Elaine would need to show those damages in court but if she can, it is likely that she would win.

... Winchell v. Mahoney. The Charlie McCarthy hearings.

As for Jerry’s use of case-law precedent… well, he’s just being nonsensical. Our team of researchers could not find any cases with those names. But we were able to uncover the origins of the joke. Paul Winchell is the name of a mid-20th century ventriloquist who’s dummy was named, you guessed it, Jerry Mahoney. Charlie McCarthy is the name of a dummy played by ventriloquist Edgar Bergen.

So, while we think it is likely Elaine would win in court, we highly advise against her using our favorite comedian as her lawyer.

...I must advise against this.

5 thoughts on ““The Pie” – Right of Privacy

  1. Zac I enjoy your postings and find it terribly amusing. As for the Winchell/Mahoney part….I used to watch Paul Winchell and his many puppets on late afternoon TV in NYC when I was very young. He had a local show with his most famous puppets Jerry Mahoney, Pudding Head Smith and a very special animal puppet – Winchell’s puppet dog named “Farfel.” Yup – Paul Winchell was an MOT. Many of my baby boomer generation remembers the famous TV commercial with Paul and Farfel shilling for Nestle’s Chocolate mix milk. Paul would sing…N-E-S-T-L-E -S …Nestles makes the very best ( and Farfel would say/sing) Chawwwlit!
    Another factoid…after Winchell retired from TV he went on to invent an artificial heart that was used in transplant operations. He was also the original voice of the Inspector Gadget cartoons!

    1. Wow! Thanks for the tidbits about these two famous Seinfeld references that I never really understood. And thanks for reading our blog, Leslie!

  2. Wouldn’t Elaine have to show damages, like she lost her job as a result of the mannequin? Is simply being unhappy about this situation enough for a court action?

    1. That’s correct, Elaine would need to show whatever damages she is claiming. If her unhappiness rose to the level of some kind of emotional trauma, then perhaps that would qualify as a type of damage. But general frustration is not, on its own, likely to qualify as damages. Thanks for reading!

  3. In the case when the plaintiff isn’t a celebrity, wouldn’t it be difficult to prove that the likeness is actually based on them? A late family friend of ours looked exactly like Vincent D’Onofrio. If, say, Old Navy bases a manikin on D’Onofrio (without acknowledging this), I’d think it’d be essentially impossible for the family friend to successfully sue Old Navy.

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