## Facts

- Charles C. Welch, a professional actor and member of the Screen Actors Guild (SAG), appeared briefly in two television commercials: a 1967 Benson & Hedges ad (about five seconds) and a 1972 United Airlines ad (about one second).
- Carson Productions Group, Ltd. produced a television special, *Television’s Greatest Commercials—Part II*, compiling notable commercials from prior decades, including the two commercials featuring Welch.
- To determine performer compensation for reused commercials, Carson contacted SAG and was directed to follow the 1977 SAG Television Agreement (the “Green Book”).
- Green Book § 36 permitted reuse of a commercial in a compilation program if the producer made reasonable efforts to identify performers; if a performer could not be identified or located, reuse was allowed upon payment of a specified fee to SAG to be held for the performer; if identified, the producer had to negotiate compensation with the performer subject to minimums.
- Carson used production records and other information to identify Welch but could not; SAG also attempted identification and failed.
- After these efforts, Carson broadcast the program and paid the required amounts under the Green Book procedure.
- After learning of the broadcast, Welch sued under New York Civil Rights Law §§ 50 and 51, alleging use of his picture without written consent for advertising or trade purposes.

## Issues

1. Whether the SAG collective bargaining agreement constituted “written consent” under New York Civil Rights Law §§ 50–51 for reuse of Welch’s image in a commercial-compilation television program.
2. Whether such contractual consent, made through a union acting as exclusive bargaining representative, was void as against New York public policy embodied in §§ 50–51.
3. Whether Carson complied with the agreement’s conditions such that its use was authorized as a matter of law.

## Decision

- The Second Circuit affirmed the district court’s directed verdict for Carson.
- The court held the written SAG collective bargaining agreement supplied the statutory “written consent” for the limited reuse authorized by Green Book § 36.
- The court rejected Welch’s public policy challenge because the agreement did not authorize unlimited exploitation; it imposed conditions, limits, and remuneration.
- The court concluded no reasonable jury could find a §§ 50–51 violation where Carson followed the agreement’s identification and payment procedures and reused the commercials only after both Carson and SAG could not identify Welch.

## Legal Principles

- New York Civil Rights Law §§ 50–51 prohibits use of a person’s name, portrait, picture, or voice for advertising or trade purposes without that person’s written consent.
- A collectively bargained, written agreement negotiated by a union as the exclusive bargaining representative can satisfy the “written consent” requirement for specified future uses of a performer’s recorded image.
- Consent through a collective bargaining agreement is enforceable when it is limited and conditioned (e.g., reasonable identification efforts, payment mechanisms, and negotiated compensation if identified), rather than an open-ended authorization.
- New York public policy does not bar a performer from authorizing a representative, including a union, to provide advance consent to defined uses of the performer’s image in exchange for negotiated remuneration.

## Conclusion

The court held that SAG’s written collective bargaining agreement provided valid written consent under New York Civil Rights Law §§ 50–51 for Carson’s conditioned reuse of the commercials in a compilation program, and that Carson’s compliance with the agreement defeated Welch’s statutory privacy/publicity claim as a matter of law.


Welch v. Carson Prods. Grp., Ltd., 791 F.2d 13 (2d Cir. 1986)