Cohen v. Hallmark Cards, Inc.

Ken Heyman took photographs of Scarlet Cohen holding her infant daughter (collectively, Cohens) (plaintiffs), which, in June 1971, Heyman sold to Hallmark Cards, Inc. (Hallmark) (defendant) for publication in a photograph collection. Heyman orally assured Hallmark that the Cohens provided written releases and that Hallmark’s use of the photographs would not infringe on anyone’s rights. Hallmark did not request copies of the purported written consents before publishing the Cohen photographs. In November, Heyman told the Cohens about the Hallmark sale, sent them a copy of the relevant publication, and asked them to provide written releases. In December, the Cohens (through counsel) notified Hallmark that they never consented to Hallmark’s use of the photographs and asked Hallmark to stop using them. Hallmark did not respond to the Cohens, instead asking Heyman whether he had written releases from the Cohens. Heyman did not respond to Hallmark’s inquiry, and Hallmark made no further effort to ascertain whether the Cohens provided written consent. In late December, having received no response from Hallmark, the Cohens served Hallmark with a summons. Around the same time, Hallmark ordered an additional printing of the publication containing the photographs of the Cohens; Hallmark ordered yet another printing in early February 1972. In late February, the Cohens served their complaint, which asserted that Hallmark violated their statutory privacy rights, and requested injunctive relief and compensatory and punitive damages. In the ensuing several months, Hallmark ordered additional printings of the relevant publication. At trial, the jury awarded the Cohens nominal compensatory damages and $50,000 in punitive damages. The appellate division reversed the punitive-damages award (Hallmark’s sole appellate issue), ruling that punitive damages were proper only if Hallmark knowingly violated the Cohens’ privacy rights and that, as a matter of law, there was insufficient evidence to support a finding that Hallmark had such knowledge. The Cohens appealed.