Plaintiffs appeal from an order which granted the motions by defendants, The Hearst Corporation (Hearst), The Conde Nast Publications, Inc. (Conde Nast), and James Krieger (Krieger), for summary judgment dismissing the first and second causes of action alleging an invasion of plaintiffs’ right to privacy under sections 50 and 51 of the New York Civil Rights Law.
The issue is whether the photograph, concededly published in magazines for advertising purposes, amounts to a *176portrait or picture of the plaintiffs within the contemplation of the statute and whether the identity of plaintiffs, as the subject of the photograph, poses a factual issue to await the trier of the facts. Special Term concluded, as a matter of law, that the identity of the plaintiffs could not be determined from the picture and dismissed the complaint. To the contrary, the identification of the plaintiffs is a factual issue, susceptible to proof at trial and inappropriate for summary disposition on the fact-finding analysis engaged in by Special Term.
On the. weekend of July 4, 1977, plaintiffs were visiting their friends, Mr. and Mrs. Henderson, at the Henderson home in Woodstock, New York. During the weekend, Susan Cohen and her child, Samantha, were bathing in the nude in a stream located on private property, when Ira Cohen observed Krieger taking photographs of his wife and daughter as they entered the water. While Krieger denies having taken any photographs, Cohen claims that Krieger admitted that he had taken them and that he had a right to do so. Some time later, while flipping through a magazine, Mr. Cohen recognized his wife and daughter in a photograph which appeared as part of an advertisement for Au Naturel, a product used to fight cellulite, manufactured by Herbal Concepts. The photograph appeared in advertisements in three magazines, House Beautiful and Cosmopolitan, published by Hearst, and House & Garden, published by Conde Nast. The photograph depicts two nude persons, a woman carrying a small object in her left hand, leading a young, girl by the right hand through shallow water. Although the faces of neither are visible, the rear and side of the subjects can be seen. The mother appears lean, with a long, thin neck and distinctive short, free-flowing hair. Her waist and arms are slender and her right breast is visible, as is the area of the buttocks, with what appear to be two dimples appearing above. The advertisement reproduces the photograph next to the advertising copy, which describes the product and is addressed to women with “fatty lumps and bumps that won’t go away”.
The action as originally commenced contained six causes of action, the first two to recover under the Civil Rights Law and the third through sixth sounding in defamation. *177On a prior motion, Special Term concluded that the photograph was not defamatory per se and dismissed the last four causes of action since special damages had not been alleged. In his opinion, the Justice at Special Term expressed the view that, from the picture, it was impossible to identify either person since no faces were visible.
Following that determination, defendants moved for summary judgment dismissing the first two causes, relying upon the prior opinion and claiming that, as a matter of law, the advertisement did not portray a clear representation of the plaintiffs. In essence, it was argued that since their faces were not depicted, it was impossible to identify them. Krieger also denied having taken, sold or published the photograph. His attorney, contending that plaintiffs could not be identified, relied upon the position of Special Term on the prior motion as dispositive on the legal insufficiency of the remaining causes of action. In opposition, Mr. Cohen stated that he had recognized his wife and daughter from the photograph and that several friends had also recognized them.
Special Term dismissed the complaint, concluding “that the identities of the plaintiffs cannot be determined from the picture.” That determination, however, is essentially a factual one and cannot be made upon motion for summary judgment, where the judicial function is limited to issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Esteve v Abad, 271 App Div 725, 727). As has been recognized, summary judgment is a drastic remedy and should not be granted where there is any doubt of the existence of a triable issue (Moskowitz v Garlock, 23 AD2d 943, 944) or where the issue is even arguable (Barrett v Jacobs, 255 NY 520, 522).
Section 51 of the Civil Rights Law makes actionable the use within the State for advertising or trade purposes of the “name, portrait or picture” of “[a]ny person”, without securing the consent of such person. This statutory right of privacy is limited in the sense that it is a legislative creation, no right of privacy having been recognized in this State until the enactment of sections 50 and 51 of the Civil Rights Law (L 1903, ch 132, §§ 1, 2) (see Roberson v Rochester Folding Box Co., 171 NY 538). In Roberson, the *178Court of Appeals found legally insufficient a prayer for injunctive relief and monetary damages for the unauthorized distribution of plaintiff’s photograph in an advertisement for defendant’s flour, the majority concluding that any protection to be accorded was a matter for legislative enactment and could not be effected by judicial pronouncement. That decision, it has been observed, resulted in the enactment of sections 50 and 51 of the Civil Rights Law at the next session of the Legislature (see Flores v Mosler Safe Co., 7 NY2d 276, 280).
The remedial nature of the statute affords protection against the commercial exploitation of one’s “name, portrait or picture” and furnishes a remedy for the injury to a person’s feelings and sentiments. Thus, in Flores v Mosler Safe Co. (supra, pp 280-281), the Court of Appeals observed: “The primary purpose of this legislation was to protect the sentiments, thoughts and feelings of an individual (Hofstadter, The Development of the Right to Privacy in New York [1954], p. 12). In construing the statutes it should be noted that although it is in part penal * * * the purpose of the statute is remedial and rooted in popular resentment at the refusal of the courts to grant recognition to the newly expounded right of an individual to be immune from commercial exploitation (Lahiri v. Daily Mirror, 162 Misc. 776, 779). Justice Shientag, in his opinion in the Lahiri case, in establishing a guide in the construction of these sections has said that ‘A statute of this kind is not “to be obeyed grudgingly, by construing it narrowly and treating it as though it did not exist for any purpose other than that embraced within the strict construction of its words.” It is “not an alien intruder in the house of the common law, but a guest to be welcomed * * * as a new and powerful aid in the accomplishment of its appointed task of accommodating the law to social needs.” ’ (Lahiri v. Daily Mirror, supra, p. 779.)”
While the statutory scope is restricted in the sense that it only affords protection against the commercial exploitation of one’s “name, portrait or picture”, the section has been liberally construed (see Flores v Mosler Safe Co., supra; Lahiri v Daily Mirror, supra; Brinkley v Casablancas, 80 AD2d 428, 432). In Brinkley, Justice Sullivan, in a *179scholarly and exhaustive analysis of the history and scope of the statute, similarly concluded that the underlying purpose was to protect against “the wrongful exploitation of his or her name or likeness,” observing (80 AD2d, at p 440): “The wrong consists of only two elements: the commercial use of a person’s name or photograph and the failure to procure the person’s written consent for such use. The damages that flow from the confluence of these two events should be compensable whether the injury is to one’s feelings or to his ‘propriety’ interest.”
Contrary to the construction adopted at Special Term and urged by defendants on this appeal, the statutory phrase “portrait or picture” does not require that there be an identifiable facial representation as a prerequisite to relief. The legislative scope affords far greater protection than that accorded by Special Term. The thrust of the statute extends to any commercial exploitation of one’s “likeness”, which includes any representation of the person. (Binns v Vitagraph Co., 210 NY 51, 57; Brinkley v Casablancas, 80 AD2d, at p 440; Young v Greneker Studios, 175 Misc 1027, 1028.) Thus, almost 70 years ago, in Binns v Vitagraph Co. (210 NY, at p 57), our Court of Appeals observed: “A picture within the meaning of the statute is not necessarily a photograph of the living person, but includes any representation of such person. The picture represented by the defendant to be a true picture of the plaintiff and exhibited to the public as such, was intended to be, and it was, a representation of the plaintiff. The defendant is in no position to say that the picture does not represent the plaintiff or that it was an actual picture of a person made up to look like and impersonate the plaintiff.” (Emphasis added.)
Similarly, in Young v Greneker Studios (supra), the court held that the statutory proscription, extending to any “portrait or picture”, was “broad enough to include any representation, whether by photograph, painting or sculpture.” (175 Misc, at p 1028; emphasis added.)
Although the statute does not expressly impose as a requirement that plaintiff be identifiable, in Negri v Sobering Corp. (333 F Supp 101,103), the court considered it relevant whether the commercial exploitation contains *180“a recognizable likeness of the plaintiff.” To the extent that there is such a requirement, the issue is susceptible to proof at trial. Negri does not hold to the contrary, since in that case, the court granted summary judgment to the plaintiff, finding, as a matter of law, that “[a]nyone familiar with her appearance at the time the photograph was taken would have no difficulty recognizing her” (333 F Supp, at p 105). Here, the issue posed is different and where a legitimate issue of identification has been raised, susceptible to proof at trial, it should not be summarily resolved.
In Feeney v Young (191 App Div 501), plaintiff sought to recover under sections 50 and 51 of the Civil Rights Law for the exhibition of a motion picture of her giving birth by a Caesarean section operation, notwithstanding her consent to its use for medical societies. The action was commenced against her physician when the motion picture was exhibited publicly in two theaters as part of a film entitled Birth. Judgment was entered in favor of defendant upon the dismissal at the close of the plaintiff’s case. We reversed and remanded the matter for a new trial, holding that the trial court had erred in refusing to receive the testimony of the plaintiff, her husband and another witness who had seen the film, finding that such eyewitness testimony was probative on the issue “that the picture as presented upon the screen was capable of identification as her picture.” (191 App Div, at p 503.) Likewise, in our case, plaintiffs should not be precluded from establishing at trial that the photograph represented them and that they were therein recognizable. This factual determination cannot be summarily made by the court, which lacks any familiarity with the likeness or physical attributes of the plaintiffs.
Similarly, in Loftus v Greenwich Lithographing Co. (192 App Div 251), plaintiff, an actress, sought to enjoin defendants from using her portrait or picture for advertising purposes. We reversed the judgment for defendant after trial and held that the statute applied, albeit there, defendant did not use an exact reproduction of the plaintiff’s portrait. The artist, in drawing the picture on the poster, had made slight changes in the pose but essentially copied plaintiff’s features and, accordingly, we concluded that the *181case fell within the protective scope of the statute: “If the wholesome provisions of the Civil Rights Law, upon which this action is based, can be thwarted by using a portrait or picture without consent, provided some slight change in the pose is made by enlargement of the picture or otherwise, then the statute will be of little use and the purpose for which it was enacted will be defeated.” (192 App Div, at p 256.)
So, too, in this case, where plaintiffs claim that they were the subject of the photograph in the advertisements, concededly for commercial purposes. The conclusory claim offered by defendants, that, in their view, “it is virtually impossible to determine the identities of either person depicted in the photograph” is insufficient to determine the issue as a matter of law. That view, adopted by Special Term, conflicts with the admonition by the Court of Appeals in Binns v Vitagraph Co. (210 NY, at p 57), that “defendant is in no position to say that the picture does not represent the plaintiff”.
It is significant that the record is barren of any proof that the photograph was not the plaintiffs. While the record does include a letter from the attorney for Herbal Concepts to plaintiffs’ attorneys that “we have what we consider to be definite proof that the people pictured in the photograph are not your clients; that the photograph was taken by Mr. Audley of some friends of his whose names are not Susan and Samantha Cohen”, no such proof was offered on the motion. Defendants relied exclusively upon Krieger’s denial that he had taken the photograph and Special Term’s conclusion of fact that it was impossible to ascertain the identity of either person, since the face of neither was visible. The statute, however, is not so limited in scope and extends beyond mere facial reproduction.
Moreover, the opposing papers are sufficient to raise in issue the identity of the plaintiffs as the persons in the photograph, Mr. Cohen stating that he noticed the photograph upon flipping through a magazine, whereupon he immediately recognized his wife and daughter. He also stated that several friends had recognized them. While the identities of the friends were not revealed, the defendants could readily obtain their names through disclosure proceedings.
*182In any event, Mr. Cohen’s statement is competent and does have probative value since he is clearly a person with knowledge of the facts (CPLR 3212, subd [b]). The fact that he is an interested party only bears upon his credibility and does not affect the probative weight of his affidavit. Nor is it relevant that he was present at the time the photograph was taken. While defendants claim that his ability to recognize his wife and daughter resulted from his having witnessed the incident, that argument again bears upon credibility, not an issue to be resolved summarily (see Wickham v Liberty Mut. Ins. Co., 73 AD2d 742, 743; Matter of Sabatino, 59 AD2d 992). Our courts have repeatedly recognized that proof which might be inadmissible at trial may nevertheless be considered in opposition to a motion for summary judgment (Phillips v Kantor & Co., 31 NY2d 307; Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540).
The central issue is whether plaintiffs can establish, sufficiently to satisfy the trier of the facts, that the photograph represents their “portrait or picture”, within the terms of the statute. The statutory right applies to all persons, private individuals as well as public figures. The construction adopted at Special Term, however, is unduly restrictive and would improperly and unwisely limit the remedy to known personalities, with widely recognizable physical characteristics. The statute was never intended to be so narrow in its application. The legislative protection is clear, extending to “any person” within the general public, not merely to those with a publicly identifiable feature, such as Groucho Marx’ moustache, Bob Hope’s nose, Eddie Cantor’s eyes or Dolly Barton’s hairstyle. The disposition in each case is necessarily dependent upon the individual facts and circumstances. On this record, the question cannot be summarily disposed of.
We disagree with the concurrence by Justice Asch, who would sustain the complaint on a novel theory which has not been advocated by any of the parties. The first cause of action predicates liability solely upon the alleged breach of sections 50 and 51 of the Civil Rights Law, as is alleged in the forty-seventh paragraph of the complaint. This was the position taken before Special Term and is the stance by *183all parties on this appeal. Plaintiffs have not sought to proceed on a quasi contract theory of “unjust enrichment”, as has been extracted by Justice Asch in reliance upon one “throw-in” allegation in a 48-paragraph first cause of action. Clearly, the gravamen of the cause of action is invasion of privacy, which right is limited in this State to the statutory protection afforded by the Civil Rights Law. However, where there is no statutory violation, the use or publication cannot be found to be unauthorized and, in such a case, there can be no unjust enrichment. To hold otherwise is to legislate.
Further, we need not concern ourselves with the contention by Conde Nast, both at Special Term and on this appeal, that the imposition of liability would pose an insurmountable burden upon a publisher, who is unable to verify that consent had been secured for the thousands of advertisements each year, most of which are illustrated by photographs. Such objection should more appropriately be directed to the Legislature, since the statute extends to any unauthorized use of one’s name, portrait or picture for advertising or trade purposes. Ensuring the necessary consent is an incident of defendants’ business, from which they undoubtedly derive substantial revenue. In view of the legislative purpose to prevent commercial exploitation of a person’s name, portrait or picture, this objective would be thwarted were publishers to be absolved solely by reason of the large volume of published advertisements.
Wojtowicz v Delacorte Press (43 NY2d 858, affg 58 AD2d 45), and Toscani v Hersey (271 App Div 445), relied upon by defendants, are distinguishable. In both cases, plaintiffs’ names, portraits or pictures were not published. Liability in each case was sought to be predicated upon a fictionalized account which the plaintiffs claimed portrayed them. In Toscani, it was alleged that the play, A Bell for Adano, involving a fictitious figure, Major Victor Joppolo, actually portrayed the plaintiff, the senior civil affairs officer of Licata, Sicily, during the Allied occupation in World War II. Considering the background of the statute, we there held section 51 of the Civil Rights Law inapplicable, albeit the actual experiences of the plaintiff were similar to the dramatized events.
*184Similarly, in Wojtowicz v Delacorte Press (supra), plaintiffs sought to proceed under section 51 of the Civil Rights Law as a result of the publication of the motion picture Dog Day Afternoon, based upon an account of an unsuccessful attempt to rob a branch of the Chase Manhattan Bank. During the attempted robbery, the robbers and eight hostages had been trapped in the bank for hours. Plaintiffs were the wife and children of John Wojtowicz, one of the persons who had attempted to rob the bank. The movie did not use the true names of the plaintiffs, nor their actual pictures. Accordingly, the Court of Appeals, affirming our determination, held plaintiffs had no cause of action under sections 50 and 51 of the Civil Rights Law, since their names, portraits or pictures had not been used, albeit they were depicted in the film, which had described the story as true.
The holdings in both Toscani (supra) and Wojtowicz (supra) are premised upon the determination that section 51 of the Civil Rights Law affords no remedy where a publication contains only a fictionalized portrayal of acts or events, without the use of one’s name, picture or portrait. On that same basis, Allen v Gordon (86 AD2d 514), is inapposite here. In that case, defendant’s book portrayed a fictitious character, “Dr. Allen”. The name had been selected at random, no first name was used, and the book contained no description of the person. We dismissed the cause of action for invasion of privacy under the Civil Rights Law, finding (p 515) that there was nothing in the book “which would prompt a rational reader to conclude that plaintiff was being described”. Those cases, however, are far different from the facts in this case, where the plaintiffs seek to prove at trial that they are the persons in the photographs, that they were recognized and identified by others and that the use of defendants of their portrait or picture for advertising purposes was unauthorized. These are matter appropriate for trial.