dissents in part in a memorandum as follows: I dissent and would reverse and reinstate the causes of action for violation of right of privacy as against the defendants-respondents Jordache, Inc. and Harvard, Peskin and Edrick, Inc. (H. P. & E.). The plaintiff is a fashion model. In 1979, through the advertising agency H. P. & E. for defendant Jordache, a company which manufactures jeans, he was asked to participate in a photo session for which he signed a release. He specifically wrote in on the consent form the words “magazine ad use only”. The picture was later widely used on a poster. The photograph shows the plaintiff and a female model in what might be described as a sexually suggestive position in which both the plaintiff and the female model wear only Jordache jeans. The court at Special Term dismissed the causes of action for right of privacy, but permitted the breach of contract cause to go forward. Because of the confusion in this area, I believe the matter deserves consideration by the Court of Appeals. In the recent case of Welch v Mr. Christmas, Inc. (85 AD2d 74), this court permitted to stand a right of privacy claim not unlike that in the present matter. In the Welch case, a television commerical was made and permission was given for a limited period of time. It was found that the defendant had exceeded the time limitation. In the present case, it is not time but scope of use that has been exceeded. While it may seem strange that right of privacy should be invoked when permission has been given in writing, and therefore the determination in this case may be correct, I believe that it does conflict with the determination in the Welch case. There is no doubt that these two defendants “commercialized the photograph.” (See Arrington v New York Times Co., 55 NY2d 433, 443.) However, the legal consequences that flow from it, in view of the initial arrangement, are the issue to be determined.