2 Broke Girls and the Statutory Rape Question

On the May 4, 2015 episode of "2 Broke Girls," Nash's mother accuses Max of having sex with her "underaged" son, and nearly everyone in the episode, including Max and Caroline, seems to agree that Max has some kind of legal issue. However, there's only one problem with this analysis of the situation. As the mother admits, Nash is "just now 18." Even if Max and Nash began their affair when Nash was seventeen, under New York state law, their affair is perfectly legal. The authorities cannot arrest Max for statutory rape. Here are the relevant parts of the NY statute.

New York Penal Law

  § 130.35 Rape in the first degree.
    A  person is guilty of rape in the first degree when he or she engages
  in sexual intercourse with another person:
    1. By forcible compulsion; or
    2. Who is incapable of consent by reason of being physically helpless;
  or
    3. Who is less than eleven years old; or
    4. Who is less than thirteen years old and the actor is eighteen years
  old or more.
    Rape in the first degree is a class B felony.


130.30 Rape in the second degree.

 A person is guilty of rape in the second degree when:
  1. being eighteen years old or more, he or she engages in sexual
intercourse with another person less than fifteen years old; or
  2. he or she engages in sexual intercourse with another person who is
incapable of consent by reason of being mentally disabled or mentally
incapacitated.
  It shall be an affirmative defense to the crime of rape in the second
degree as defined in subdivision one of this section that the defendant
was less than four years older than the victim at the time of the act.

S 130.25 Rape in the third degree.
  A person is guilty of rape in the third degree when:
  1. He or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old;
  2. Being twenty-one years old or more, he or she engages in sexual
intercourse with another person less than seventeen years old; or
  3. He or she engages in sexual intercourse with another person without
such person`s consent where such lack of consent is by reason of some
factor other than incapacity to consent.
  Rape in the third degree is a class E felony.

Similarly, none of the provisions covering criminal sexual conduct apply either. We have no reason to believe that Nash does not consent to the relationship and he is of age (he was seventeen and is now eighteen). Nor can his mother object to his working as a model. He cannot void his modeling contract, since he seems to have entered into it as an adult (although it's not clear from the episode when he turned eighteen; if it was after he entered in the contract with the agency, he would need to enter into another contract).

Max and Caroline's continuing problem, however, is that they still don't have a talent agent's license; thus, they cannot represent Nash.

2 Broke Girls and the Talent Agency License

Caroline and Max take on the job of talent agents on the April 27, 2015 episode of 2 Broke Girls in "2 Broke  Girls and the Look of the Irish."  They decide to try to help newly hired Nash (Austin Falk) become a model (and they'll pocket some cash in exchange). There's only one problem: the episode gives no indication that either one of the members of our dynamic business duo is licensed under state law to represent talent in the state of New York.  Under New York law, one needs a license to act as a talent agent. See Article 11 of the NY General Business Law, which applies to those representing actors and models, among other clients.

Under Article 11, Section 171:

    2. a. "Employment agency" means any person  (as  hereinafter  defined)
  who, for a fee, procures or attempts to procure:
    (1)  employment  or  engagements  for  persons  seeking  employment or
  engagements, or
    (2) employees for employers seeking the services of employees.
    b. "Employment  agency"  shall  include  any  person  engaged  in  the
  practice  of  law  who  regularly  and  as part of a pattern of conduct,
  directly or indirectly, recruits, supplies, or  attempts  or  offers  to
  recruit  or  supply,  an  employee  who  resides outside the continental
  United States (as defined in section one hundred eighty-four-a  of  this
  article)  for  employment  in  this  state  and  who  receives  a fee in
  connection with the arrangement for the admission into this  country  of
  such workers for employment.
    c.  "Employment  agency"  shall  include  any  person  who, for a fee,
  renders vocational guidance or counselling services and who directly  or
  indirectly:
    (1)  procures or attempts to procure or represents that he can procure
  employment or engagements for persons seeking employment or engagements;
    (2) represents that he has access, or has the capacity to gain access,
  to jobs not otherwise available to those not purchasing his services; or
    (3) provides information or service of any kind purporting to promote,
  lead to or result in employment for  the  applicant  with  any  employer
  other than himself.

...

   3. "Fee" means  anything  of  value,  including  any  money  or  other
  valuable  consideration  charged,  collected, received, paid or promised
  for any service, or act rendered or to  be  rendered  by  an  employment
  agency,  including  but  not limited to money received by such agency or
  its emigrant agent which  is  more  than  the  amount  paid  by  it  for
  transportation,  transfer  of baggage, or board and lodging on behalf of
  any applicant for employment.
    4. "Agency manager" means the person designated by the applicant for a
  license who is responsible  for  the  direction  and  operation  of  the
  placement  activities  of  the  agency  at  the  premises covered by the
  license.
    5. "Placement employee"  shall  mean  any  agency  manager,  director,
  counsellor,  interviewer,  or any other person employed by an employment
  agency  who  spends  a  substantial  part  of  his  time   interviewing,
  counselling  or  conferring  with  job  applicants  or employers for the
  purpose of placing or procuring job applicants, but  shall  not  include employees  of an employment agency who are primarily engaged in clerical occupations.

...
7.  "Person"  means  any  individual,  company,  society, association,
  corporation, manager, contractor,  subcontractor,  partnership,  bureau,
  agency, service, office or the agent or employee of the foregoing.
    8.  "Theatrical  employment  agency"  means  any person (as defined in
  subdivision seven of this section) who procures or attempts  to  procure
  employment  or engagements for an artist, but such term does not include
  the business of managing entertainments, exhibitions or performances, or
  the artists or attractions constituting the same,  where  such  business
  only incidentally involves the seeking of employment therefor.
    8-a.  "Artist"  shall  mean actors and actresses rendering services on
  the legitimate stage and in the production  of  motion  pictures,  radio
  artists, musical artists, musical organizations, directors of legitimate
  stage, motion picture and radio productions, musical directors, writers,
  cinematographers,  composers,  lyricists,  arrangers,  models, and other
  artists and persons rendering professional services in  motion  picture,
  theatrical, radio, television and other entertainment enterprises. 
    9.  "Theatrical  engagement"  means any engagement or employment of an
  artist.

Continuing with Section 172:

  License  required. No person shall open, keep, maintain, own,
  operate or carry on any employment agency unless such person shall  have
  first  procured  a  license  therefor  as provided in this article. Such
  license shall be issued by the commissioner of labor, except that if the
  employment agency is to be conducted  in  the  city  of  New  York  such
  license  shall be issued by the commissioner of consumer affairs of such
  city. Such license shall be  posted  in  a  conspicuous  place  in  said
  agency.

Boldface added by the editor of the L & H Blog (ahem, me).

True, Nash refers to Caroline as his "manager" at one point in the episode. If Caroline and Max actually act as Nash's personal managers, then NY law does not require them to obtain talent agent licenses under the "incidental employment" exception (Section 171 (8)) but they cannot "procure employment" for him. Their behavior in the episode indicates that they are not doing so "incidentally." They go to an audition with him purposefully (although they leave when they discover the audition is for a sexually explicit film). When a friend of their new employer indicates she wants to hire Nash as a model, Caroline eagerly demonstrates that she wants to take the businesswoman up on that offer. Caroline (and Max) probably are not pursuing employment for Nash incidentally. They have a goal in mind: finding modelling work for Nash. For that, they need to be licensed as talent agents.

On "incidental" representation, see Section 171(8) above and Mandel v. Liebman, 303 N.Y. 88 (1951) (plaintiff attorney sued defendant author, because defendant refused to pay plaintiff commissions agreed upon in contract, arguing contract by which defendant employed plaintiff to represent him as personal manager was void because plaintiff was not licensed as talent agent under NY law).

2 Broke Girls and the Model Release

On the February 23, 2015 episode of 2 Broke Girls ("2 Broke Girls and the Great Unwashed"), Caroline and Max wait on a customer (Valerie Harper), who turns out to be a famous photographer. Without their knowledge, she takes their photos, as well as those of other employees at the diner, and displays them in an exhibit in a Soho gallery. The photos sell briskly, except for Caroline's. Caroline objects, although it seems that she's offended more that her photo isn't selling, and than that because the photographer didn't ask her consent, and the photographer offers her a print of the photo to mollify her. Caroline does accept the photo, yet--still no model release. Notice that the photographer doesn't get a model release for any of the photos of the employees at Han's diner. Does she need them? We don't know if she obtained a property release from Han.

The First Amendment protects a photographer's right to take photos in public spaces (nice roundup of photographers' rights here from the ACLU), and to sell artistic photographs, although what may complicate matters is that this photographer took her photographs in a diner rather than in on the street or in a public park.  However, socialite Caroline obviously has a right of publicity. It's worth something here; she has been cultivating her persona since she was a teen, and she was in the spotlight during the high profile trial of her father Martin Channing, who is now in prison as a result of his conviction for running a Ponzi scheme. To the extent that the photographer's use of the photos cross the line from fine art to advertisement, how much might they infringe on Caroline's right of publicity? We don't actually that in the episode, but we could spin some hypos. Suppose the photographer creates business cards with her photo of Caroline on them? She might not; she admits that the photo isn't particularly successful because people "don't believe" Caroline as a server in a diner. The role doesn't fit Caroline's persona.

What about the photos of Max and the other employees? What are their rights of publicity worth, if anything? Suppose the photographer decides to use one of their photos as future advertising?  Suppose she sells a coffee table book of her work, which includes the photos and those particular pages become part of the advertising campaign? Should a prudent publisher demand that she get model releases even if the law doesn't require them right now?

Both a prudent photographer and a prudent publisher should seek model releases, even if, as in this case, the photographer doesn't seem to be using the photos for commercial purposes. Entertainment attorney Gordon Firemark gives a short but cogent explanation of the law in this area here.

Discussion of the need for model releases in fine art photography here. Short overview of how courts balance the First Amendment and the right of publicity here. Text of N.Y. Code sec. 50 (right of privacy) here.

Fun for discussion with an entertainment law or IP class.