I agree with the result reached by the majority but not with the route followed to reach that destination. I do not believe that the claim of the plaintiffs can be sustained under sections 50 and 51 of the Civil Rights Law. It is some 90 years after Samuel Warren and *185Louis Brandeis urged that the privacy of citizens be protected from unauthorized intrusion (The Right to Privacy, 4 Harv L Rev 193). Since that time a miscellany of actions have been allowed authorizing claims for commercial misappropriation of one’s name or likeness or the intrusion into an individual’s privacy (see, e.g., Restatement, Torts 2d, §§ 652A-652E; Prosser, Torts [4th ed], ch 20, pp 802-818; Ann., 14 ALR2d 750).
Early in this century, concern for the right of privacy culminated in sections 50 and 51 of the Civil Rights Law in this State. However, aside from a few desultory amendments and decisions, the protection afforded under this section has not been extended. Its application has been rather closely confined to the literal language of the statute. To some extent this is because it has penal ramifications. The more probable reason for the requirement that the acts complained of must satisfy the explicit language of the statute is that when the competing interests of free speech and the need for the free dissemination of information collide with the individual’s “right of privacy,” the former interests most often prevail (see Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort, 68 Cornell L Rev 291).
Section 51 creates an action in favor of a “person whose name, portrait or picture is used within this state for advertising purposes”. But neither Susan Cohen nor Samantha Cohen is recognizable from the photograph. It is a threshold requirement under a section 51 claim that “[t]he picture used must be a clear representation of the plaintiff, recognizable from the advertisement itself” (Negri v Schering Corp., 333 F Supp 101, 103 [emphasis added].)
While conceding this requirement, plaintiffs argue, as they unsuccessfully did to the court below, that a question of fact concerning recognizability has been raised. This argument is contravened not only by plaintiffs’ admission that their faces are not visible but also by their obvious inability to produce any viable evidence in support of their section 51 claim. Neither in their complaint nor in their affidavits in opposition to the summary judgment motion have plaintiffs ever specified what it is about the photograph that makes plaintiffs recognizable.
*186Clearly, nothing in the photograph itself approaches satisfying the requirement of “unequivocable identification”, “recognizable likeness” or “clear representation” consistently set forth by the courts as a prerequisite to sustaining a section 51 claim (People v Scribners Sons, 205 Misc 818; Negri v Schering Corp., supra; Levey v Warner Bros. Pictures, 57 F Supp 40). This court has recently enunciated the rule that without this clear identification of plaintiff, the claims under section 51 must fail (Allen v Gordon, 86 AD2d 514). As the court held there at page 515: “The second cause of action for invasion of privacy under sections 50 and 51 of the Civil Rights Law fails because there is no clear identification of plaintiff in the portrayal of the character ‘Dr. Allen’ in the book which would prompt a rational reader to conclude that plaintiff was being described” (emphasis added).
The photograph in the Herbal Concepts advertisement is a rearview shot of two persons with no part of either of their faces visible. There are no outstanding or personal features shown in the photograph which would differentiate the subjects therein from millions of other people in this country. In sum, there is a total lack of any “features that are quite clear and characteristic” of the woman and child in the photograph.
Plaintiffs, to support their assertion of recognizability, have directed this court to the following alleged characteristics of the photograph in their brief: long and slender neck; two dimples above the buttocks; slim waist; bony elbows; indented backs; and short and freely flowing hair. The foregoing are the sum total of recognizable characteristics set forth by the plaintiffs. Even if all of such characteristics are, in fact, visible from the photograph, their nature actually negates plaintiffs’ assertion of recognizability. Certainly, such characteristics are present in a large portion of the female population and can in no way be argued to be “distinguishing characteristics”.
As was stated by Prosser, Torts (4th ed, § 117, p 806), “there is no liability for the publication of a picture of [plaintiff’s] hand, leg or foot * * * with nothing to indicate whose they are.” Likewise, indented backs, bony elbows and dimples above the buttocks, with a total lack of *187uniqueness of such features, provide no indication whatsoever as to whose back, elbows or dimples they are.
The stated purpose of section 51 is to avoid the exploitation of identities either by name or picture. Plaintiffs’ interpretation of the statute defeats the purposes espoused by the Legislature as well as the consistent applications given by the courts. Accordingly, plaintiffs’ causes of action must fail because the photograph does not pass the “statutory test of identification” (Toscani v Hersey, 271 App Div 445, 448; Wojtowicz v Delacorte Press, 58 AD2d 45, 47, affd 43 NY2d 858; see, also, Levey v Warner Bros. Pictures, supra).
After a review of the photograph purported to depict plaintiffs, there was no doubt to Justice Klein in the court below, just as there was no doubt to Justice Shainswit in deciding the earlier motion, that the photograph did not contain an actionably recognizable likeness of plaintiffs Susan Cohen and Samantha Cohen and plaintiffs have failed to raise any triable issue of fact as to their recognizability in the photograph.
Plaintiffs’ only evidence, the self-serving statement of plaintiff Ira Cohen, is not probative on the issue of recognizability. Plaintiffs’ argument that Susan Cohen and Samantha Cohen were in fact identifiable from the photograph is based entirely upon the affidavit of Ira Cohen, husband and father, respectively, of the alleged subjects of the photograph, as well as a plaintiff in his own right. As set forth in the affidavit of Ira Cohen, he was present and watching as the photograph was being taken by defendant Krieger. His affidavit is based, obviously, on knowledge gained as the result of being present when the photograph was being taken and, therefore, his affidavit is not probative on the issue of recognizability.
Closely analogous to the present case and wholly supportive of the foregoing proposition is Branson v Fawcett Pubs. (124 F Supp 429, cited by the court in Negri v Schering Corp., supra). In Branson, the court was faced with a summary judgment motion on behalf of a publication which had been sued in privacy by a race car driver for publishing, in connection with a fictional story, a photograph of a racing accident in which plaintiff was involved. *188The court granted the defendant’s motion and dismissed the case despite the fact that the plaintiff and several friends recognized the photograph as that of plaintiff. Emphasizing that such recognition was the result of independent knowledge, the court stated: “When considered by itself, [the photograph] in no way relates to or identifies any particular driver. It is only through independent knowledge such as would result from being present at the collision that it can be determined who the driver was. It is doubtful that this picture would have been recognizable even to the plaintiff or his friends had he or they not seen the newspaper photographs which appeared shortly after the collision, or seen the actual collision from the photographer’s vantage point.” (124 F Supp, at pp 432-433 [emphasis added].)
Likewise, due to his presence at the taking of the photograph, Ira Cohen’s statement that he recognized plaintiffs from the photograph is insufficient to establish recognizability since it was founded “only through independent knowledge such as would result from being present” at the time the photograph was taken.
Other jurisdictions have incorporated this requirement of identifiability from the photograph alone into their interpretations of privacy statutes. As was stated in Bernstein v National Broadcasting Co. (129 F Supp 817, 833, affd 232 F2d 369), “[t]he gist of an action- for invasion of privacy is a wrongful disclosure by the defendant. The identification of plaintiff * * * was not by act of the defendant, but by use of their own thought processes.” As noted, plaintiffs in the present instance have based their entire case on the affidavit of Ira Cohen, a person who is not only the husband and father of plaintiffs and a plaintiff in his own right, but also was present at the time and place the photographs were allegedly taken. (See, also, Rawls v Conde Nast Pubs., 446 F2d 313, cert den 404 US 1038 [invasion of privacy claim failed where identifiability as to plaintiff was not established].)
The conclusory statement proffered by Ira Cohen, containing hearsay declarations supposedly made by “several friends” who recognized plaintiffs in the photograph, cannot be employed to contradict the viewing of the photograph and the necessary conclusions drawn therefrom by *189the lower court. This is particularly true where plaintiffs were unwilling or unable to present direct, sworn-to proof from such unnamed “friends” despite the passage of one full year between the commencement of the lawsuit and the filing of the summary judgment motion.
It is significant that these names are not furnished on this motion for summary judgment. Therefore, it may be assumed that they do not exist. “The onus is on the party resisting the motion to assemble, lay bare and reveal his proof to show that his claim is real and capable of being established at trial * * * In the absence of an apparent genuine and substantial issue of fact, the court may and should dispose of the matter upon the law and direct judgment accordingly” (Belmet Prods, v Merit Enterprises, 37 Misc 2d 368, 371; Indig v Finkelstein, 23 NY2d 728; Di Sabato v Soffess, 9 AD2d 297, 301).
As a matter of public policy, it does not seem appropriate that asserted recognition only by parties who have an interest in the outcome of the litigation should be deemed sufficient to justify success under section 51 of the Civil Rights Law. This would open the floodgates of litigation to anyone who fancied himself or herself as pictured in a mob scene used in an advertisement, even if what was depicted was simply an unrecognizable blob to anyone else. It may well be that “[t]he primary purpose of this legislation was to protect the sentiments, thoughts and feelings of an individual” (Flores v Mosler Safe Co., 7 NY2d 276, 280). But this is quite different from saying that recognition is sufficient even if it is only based on the assertion of an interested party. Whether or not such person has a cause of action, it seems to me, must depend upon a recognition by someone other than the person who deems himself aggrieved.
It is clear that the majority is of the opinion that if the facts alleged in the complaint are established, then the plaintiffs were exploited. I certainly concur in these sentiments. However, redress cannot emanate from the statutory provisions of the Civil Rights Law. The doctrine of “equity of the statute” may find validation in Chinese statutory law as applied (The Developing Role of Law and Lawyers in China, 46 Albany L Rev 687) or in the Anglo-American jurisprudence of the sixteenth or seventeenth *190centuries (Landis, Statutes and the Sources of the Law, Harvard Legal Essays [1934], pp 213, 215) but is not sanctioned by our contemporary judicial adherence to statutory authority. (See Shields v Gross, 58 NY2d 338.)
Fortunately, the principles of common law are flexible enough to furnish a remedy, even if the Civil Rights Law is not available, in the situation now under consideration.
Although the complaint is largely based upon a claim of breach of sections 50 and 51 of the Civil Rights Law, it also alleged: “Forty-Fifth: That the defendants were benefitted and unjustifiably enriched by the use of the aforesaid photograph.”
It may be that on trial plaintiffs can establish a valid claim based upon “unjust enrichment”.
If the defendants, without consent, used plaintiffs’ photographs in an advertisement for which defendants received payment or other financial benefit, this might well establish a right in the plaintiffs for compensation. While the facts as alleged may not be sufficient to spell out a violation of the Civil Rights Law, it is entirely possible that the law can construct a quasi contract on the theory of “unjust enrichment” which may be the basis upon which plaintiffs can recover (see 22 NY Jur 2d, Contracts, § 466; cf. Schumann v Loew’s, Inc., 135 NYS2d 361).
Of course, if the trial should fail to establish that the backs which are depicted in the photographs are those of the plaintiffs, there can be no recovery under any theory. In any event, a trial is required to resolve this issue and to spell out whether or not this is a situation in which it would be improper to permit the defendant to retain what is sought to be recovered.