World-renowned fantasy artist Frank Frazetta filed a complaint today with the Supreme Court of the State of New York, County of New York, against publisher J. David Spurlock and Vanguard Productions. The complaint alleges that in publishing the book FRAZETTA DEFINITIVE REFERENCE, featuring Frazetta’s artwork and prominently displaying his unique signature, Spurlock and Vanguard used the artist’s name for advertizing and trade purposes without obtaining prior approval, thus committing a violation of Section 50 of the Civil Rights Law of the State of New York.
The complaint further alleges that, during the period beginning on or about April 8, 2008, Spurlock and Vanguard knowingly, willfully, and in bad faith released in New York State and elsewhere literature prominently using Frazetta’s name in advertizing the book, including solicitation materials clearly stating, “endorsed by the artist,” despite possessing knowledge that such statement was contrary to fact and made without the artist’s consent. No agreement exists, oral or written, between Spurlock or Vanguard and Frank Frazetta.
Section 50 of the Civil Rights Law of the State of New York guarantees the right of privacy, and states that, “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”
Section 51 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 … may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use …”
Stating in the complaint that Spurlock and Vanguard have been “unjustly enriched by unlawful use of the plaintiff’s name and reputation as an artist,” Frazetta demands that Spurlock and Vanguard be enjoined and restrained from using his name, image, or likeness in distribution, promotion, or sale of the book.
Based on Section 51 of the Civil Rights Law of the State of New York, Frazetta has further asked for compensatory damages of $2,000,000 and exemplary damages of $500,000, while requiring that Spurlock and Vanguard provide an account of all proceeds received from sales of the book. Frazetta is represented by The Law Office of Tedd Kessler, PC, located in New York, NY. Vanguard Productions is located in Clinton, NJ and is represented by Penino & Moynihan, LLP, White Plains, NY.