## Facts

- In 1966, a photographer took photographs of Scarlet Cohen, a professional model, holding her infant daughter.
- In 1971, the photographer sold the photographs to Hallmark Cards, Inc. for use in a for-profit publication.
- The photographer orally assured Hallmark that written releases existed and represented in writing that Hallmark’s use would not infringe others’ rights; Hallmark did not request copies of releases.
- In November 1971, the photographer notified the Cohens of the sale, sent them the publication containing their pictures, and requested that they sign releases.
- On December 8, 1971, plaintiffs’ counsel notified Hallmark that plaintiffs had never consented and demanded Hallmark stop using the pictures; Hallmark did not respond to plaintiffs.
- Hallmark sent one letter to the photographer asking about releases; after no response, Hallmark made no further effort to confirm consent.
- After notice and after suit was commenced, Hallmark ordered multiple additional printings and continued distributing the publication containing plaintiffs’ pictures.
- At trial, the jury awarded nominal compensatory damages ($1 each) and punitive damages totaling $50,000.
- The Appellate Division reversed the punitive damages award as legally unsupported; the Court of Appeals granted review limited to evidentiary sufficiency for punitive damages.

## Issues

1. Whether the evidence permitted a jury to find that Hallmark “knowingly” used plaintiffs’ pictures for trade without written consent under N.Y. Civ. Rights Law § 51.
2. Whether Hallmark’s post-notice conduct supported punitive damages based on wanton, reckless, or consciously indifferent disregard of plaintiffs’ statutory rights.

## Decision

- The Court of Appeals reversed the Appellate Division and reinstated the trial court’s punitive damages award, subject to further factual review of the amount on remittitur.
- The court held the evidence was sufficient for the jury to find Hallmark knowingly used plaintiffs’ photographs without written consent.
- The court emphasized Hallmark’s continued printing and distribution after explicit notice of nonconsent and its failure to make meaningful inquiry into whether releases existed.
- The case was remitted for appellate review of the amount of punitive damages; on remittitur, punitive damages were sustained but the mother’s award was reduced unless she accepted remittitur.

## Legal Principles

- N.Y. Civ. Rights Law § 51 authorizes damages and injunctive relief for use of a person’s name, portrait, or picture for advertising or trade without prior written consent.
- Punitive damages may be awarded under § 51 when the defendant’s conduct is wanton or reckless, or consciously and deliberately violates the statute; actual personal spite or malice is not required.
- A “knowing” violation may be inferred from circumstantial evidence, including a defendant’s conduct after receiving notice that consent is lacking.
- After explicit notice disputing consent, continuing commercial use without serious efforts to ascertain whether written consent exists can support a finding of conscious disregard sufficient for punitive damages.
- Determinations of knowledge, recklessness, and conscious disregard are generally for the jury when the record supports competing inferences.

## Conclusion

The Court of Appeals held that Hallmark’s continuation of printings and distribution after being directly told plaintiffs had not consented, coupled with its failure to verify written releases, provided legally sufficient evidence of a knowing or recklessly indifferent § 51 violation justifying punitive damages.


Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493 (N.Y. 1978)