FILED: NEW YORK COUNTY CLERK 01/20/2016 01:36 PM

NYSCEF DOC. NO. 1

INDEX NO. 150493/2016

RECEIVED NYSCEF: 01/20/2016

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
FIFI YOUSSEF,

VERIFIED COMPLAINT
Plaintiff,
Index No.

-againstTHE ASSOCIATED PRESS and MARK LENNIHAN.

Defendants.

Plaintiff FIFI YOUSSEF (hereinafter YOUSSEF or Plaintiff), by her attorneys

Daniel Szalkiewicz & Associates, P.C., as and for her complaint hereby alleges, upon
information and belief, as follows:
NATURE OF THE ACTION
1.

This action arises out of the Defendants wrongful taking and then subsequent

licensing of Plaintiffs image.

2.

Specifically, on or about December 16, 2015, Plaintiff was enjoying a beverage

from a local Starbucks. Unbeknownst to her, Defendant Mark Lennihan (Lenninhan)

photographed her while she was looking at her cell phone. Defendant Lenninhan then listed the
photograph for sale and licensing on Defendant The Associated Presss website (AP).
3.

Youssef only became aware of the wrongful use of her image when the

Washington Post published a controversial article.

A copy of the article is located at

https://www.washingtonpost.com/news/acts-of-faith/wp/2015/12/21/as-muslim-women-weactually-ask-you-not-to-wear-the-hijab-in-the-name-of-interfaith-solidarity/.

4.

The article, entitled As Muslim women, we actually ask you not to wear the

hijab in the name of interfaith solidarity (the Article), as of January 18, 2016, has over 1,080
comments and prominently features the Plaintiffs image:

5.

The Article, written in response to a multidenominational solidarity movement

entitled Wear a Hijab day, encouraged readers to not wear a headscarf in solidarity with the
ideology that most silences [muslin women], equating our bodies with honor. Stand with us
instead with moral courage against the ideology of Islamism that demands we cover our hair.
6.

Clearly, the Article attacks Plaintiffs fundamental beliefs, and by Defendants

actions, her image was thrust into the piece.

7.

Defendant Lenninhan took the image with the sole intention of selling its rights,

and the AP, did in fact, sell the rights to Plaintiffs image
8.

As a result, Defendants have violated New York Civil Rights Law 50 and 51.

THE PARTIES
9.

Plaintiff YOUSSEF is, and at all times relevant to this action has been, an

individual residing in the State of New York, County of Queens.

10.

Plaintiff YOUSSEF is not a public official or public figure.

11.

That at all times hereinafter mentioned, defendant AP is a corporation organized

and existing under the laws of New York with its principal executive office located at 450 W
33rd Street, New York, New York.
12.

That at all times hereinafter mentioned, defendant AP is authorized to do business

and regularly does business in the State of New York.

13.

That at all times hereinafter mentioned, defendant AP owns and operates the

website http://www.apimages.com/.
14.

Upon information and belief, Defendant LOCAL MEDIA GROUP, INC. creates

content on the website http://www.apimages.com/.

15.

Upon information and belief, Defendant AP maintains a database of images on

the website http://www.apimages.com/.

16.

Upon information and belief, Defendant AP sells and/or licenses images on the

website http://www.apimages.com/.
17.

Upon

information

and

belief,

Defendant

AP

created

http://www.apimages.com/ for the sole purpose to sell and/or license images.

the

website

18.

That at all times hereinafter mentioned, the defendant Lenninhan, was, and still is,

a resident of the County of Kings, State of New York.

19.
photograph

Upon information and belief, Defendant Lenninhan is an individual who took the
located

at

the

url

http://www.apimages.com/metadata/Index/Earns-

Starbucks/a4d062c5d05c42c094e18d739b86679f/140/0.

JURISDICTION AND VENUE

20.

The Court has jurisdiction over Defendants because they conduct business in the

State of New York and have otherwise committed acts giving rise to personal jurisdiction over it
in New York within the meaning of C.P.L.R. 301 and 302(a).
21.

Venue is appropriate pursuant to Section 503 of the C.P.L.R. because of

Defendants principle place of business.

STATEMENT OF FACTS PERTAINING TO ALL CAUSES OF ACTION

22.

On or about December 16, 2015, while on a coffee break from work, Plaintiff was

sitting in a Starbucks restaurant focusing on her phone.

23.

Without the Plaintiffs knowledge, Defendant Lennihan photographed Plaintiff.

24.

At no point in time did Defendant Lennihan inform Plaintiff that he was taking

her image.
25.

Upon information and belief, Defendant Lennihan did not ask Plaintiff for her

consent to use her image.

26.

There was nothing newsworthy about Plaintiff looking at her cell phone or sitting

in Starbucks.

The AP Images Website

27.

Defendant AP maintains a website entitled AP Images and located at the url

http://www.apimages.com/ (the Site).

28.

The Site is created with the intention of selling and licensing images to users. As

described on their website:

Buying photos and images from AP and its partners has never been easier.
APImages.com offers professional image buyers access to APs
comprehensive collection of breaking news, creative and archival images
from its global network of award-winning photographers and industryleading partners. Its features help you get you in, out and on with your
project, quicker than ever before. Use your Personal Workspace to stay
organized more efficiently when you buy pictures. Simply tag images that
you would like to buy with multiple project names instead of adding them
to a traditional light box.
(http://www.apimages.com/buy-images)

29.

The Site touts that it offers superior accessibility with expanded e-commerce and

multiple delivery options (http://www.apimages.com/Aboutus).

30.

Users can purchase the images [they] need immediately on [the] site or set up a

subscription service with [their] sales representative (http://www.apimages.com/Aboutus).

31.

According to its terms of use, the Site and Site Elements are intended solely for

AP customers. You may not use this Site or any Site Elements for any purpose not related to
Your business with AP (See Exhibit A) (emphasis added).
32.

The Licensing Terms on the Site mandate that a user:

agree to pay AP for all Content that You obtain from this Site, regardless
of whether You use such Content. Unless otherwise agreed to in an

Invoice or License Agreement, no rights in or to the Content become

effective until You have paid in full all amounts due in the License
Agreement or Invoice, as the case may be. All amounts due are payable
within thirty (30) days from the date on the Invoice. A finance charge of
one and a half percent (1.5%) per month or the maximum interest
permitted by law, whichever is less, will be applied on any balances
unpaid after thirty (30) days. The maximum amount permitted by state law
shall be imposed on each returned check.
See Exhibit B.
Plaintiffs Image is Sold by Defendant AP
33.

On December 18, 2015 at 8:27:55 a.m., Defendants image was listed on the Site

at the url http://www.apimages.com/metadata/Index/Earns-Starbucks/a4d062c5d05c42c094e18d739b86679f/140/0 .

34.

The image is captioned A woman pays attention to her iPhone while seated in a

Starbucks Coffee, Wednesday, Dec. 16, 2015 in New York.

35.

The photographer is identified as Defendant Lennihan and credited to the

Defendant AP.
36.

The image has a watermark across Plaintiffs face entitled ASSOCIATED

PRESS.
37.

Three keywords are associated with the image hijab, Muslim, Islam.

38.

The Usage Notes state this content is intended for editorial use only. For other

uses, additional clearances may be required.

39.

Pursuant to the License Terms, editorial use means an image for editorial,

factual, educational, news, informational and/or historical purposes, including in order to depict
persons, places or event of public interest (See Exhibit B).
40.

However upon information and belief, in order to use the photographs for

editorial purposes, a License Agreement or Invoice must first be purchased and/or obtained
41.

Finally, a tab next to the image states Get price. In order to access the price list,

an individual must be registered with the Site:

42.

During the registration process, a Billing Country is required:

43.

Defendants offer the image for sale to any member of the public who registers

with their site.

44.

Although the image is labeled editorial use, the website still requires a fee for

that use.
45.

Upon information and belief, the AP lists the photographs as part of its commerce

trade. Mainly, had the AP not listed photographs, no one out pay their licensing fees.
46.

In fact, upon information and belief, the AP allows for advertising and trade use

of the photograph with additional clearances.

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Plaintiffs Image is Used by the Washington Post

47.

On December 21, 2015 the Washington Post ran an article entitled As Muslim

women, we actually ask you not to wear the hijab in the name of interfaith solidarity.
48.

Immediately after the heading, the Washington Post used Plaintiffs photograph.

49.

The photograph was captioned A woman pays attention to her iPhone while

seated in a Starbucks coffee shop on Dec. 16 in New York. (Mark Lennihan/AP).

50.

Upon information and belief, the Mark Lennihan/AP means the photograph was

licensed from either Mark Lennihan and/or the AP.

51.

The article describes the use of a hijab, or ritual head covering used by Muslim

women, as an ideology that promotes a social attitude that absolves men of sexually harassing
women and puts the onus on the victim to protect herself by covering up.
52.

The article goes on to state that the mandate that women cover their hair relies

on misinterpretations of Koranic verses, and that a hijab carries the negative connotation of
being an actual or metaphorical obstacle.
53.

The article concludes by requesting readers Do not wear a headscarf in

solidarity with the ideology that most silences us, equating our bodies with honor. Stand
with us instead with moral courage against the ideology of Islamism that demands we cover our
hair.
54.

The article has over 1,080 comments. Speaking of the controversy of the article,

one author stated Thank you so much for your support and intellect on this article. We have
received a backlash that is been personal, fierce and vile, at times. The backlash confirms our
thesis and reflects, to us, the extent to which the headscarf is a symbol of the ideology of political
Islam that we described here.

11

55.

One inflammatory comments states I'm fine with muslim women wearing a

scarf...just wear it where I don't have to look at it. It is against my religion to have to look at it
because it reminds me of a religion that does not allow women to hold a job, drive a car, vote,
walk out in public unescorted, get a decent education, etc.
56.

The photograph and article has been shared across multiple websites, including

Twitter, Reddit, Parlio, Pinterest, Google+ and TheChristians.com.

57.

When doing an image search, Google images indicates that the photograph has

been transmitted across, at a minimum, 118 search results (see Exhibit C).
58.

Plaintiff has been dismayed and deeply emotionally upset by defendants use of

her photograph for advertisement and trade purposes, classifying her as hijab, Muslim, Islam.

FIRST CAUSE OF ACTION

(Violation of New York Civil Rights Law 50 and 51)
59.

Plaintiff repeats and realleges the allegations stated above as if fully set forth

60.

New York Civil Rights Law 51 sets forth:

herein.

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 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 if the defendants shall have knowingly used such
persons name, portrait, picture or voice in such manner as is forbidden or
declared to be unlawful by section fifty of this article; the jury, in its
discretion, may award exemplary damages. (emphasis added).

61.

Defendants, by their acts alleged and described herein, have violated Section 51

of the New York Civil Rights Law.

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