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Myskina v. Conde Nast Publications, Inc.

United States District Court






The Parol Evidence Rule




Application of the Parol Evidence Rule at Common Law

Quick Notes

2004 womans French open champion signed a release of all photos. 

Book Name

Contracts Cases, Discussions, and Problems.  Blum Bushaw, Second Edition.  ISBN:  978-0-7355-7069-6.



o         Whether the writing is an integrated agreement is determined "by reading the writing in the light of surrounding circumstances, and by determining whether or not the agreement was one which the parties would ordinarily be expected to embody in the writing?  Yes.



United States District Court

o         Summary judgment was granted for the company, magazine, photographer, and studio.





o         Pl - Myskina

o         Df - Conde Nast Publications

What happened?

o         Myskina won the 2004 French open.

o         She was 20 year old at the time the pictures were taken.

o         The court then held that the tennis player's claims under N.Y. Civ. Rights Law 50 and 51 failed because she signed a release allowing the unrestricted editorial use of her photographs by the company, magazine, photographer, and studio, and the alleged oral agreement limiting the tennis player's consent to publication of her photographs was barred by the parol evidence rule.

o         She alleged the photographs were for GQ.

o         Mark Seliger asked Myskina if he could keep the additional photos outside of the Lady Godiva on a Black Horse.

o         The photographs were also published by Russian magazine Medved.


o         A person who is illiterate in the English language is not automatically excused from complying with the terms of a contract simply because he or she could not read it."


Application of the parol evidence rule involves a three-step inquiry:

(i) determine whether the written contract is an integrated agreement; if it is,

(ii) determine whether the language of the written contract is clear or is ambiguous; and, (iii) if the language is clear, then apply the clear language.


In this case

1.   The Release does not mention the alleged oral agreement limiting Myskinas consent to the GQ photographs.  How often will a written document make reference to a side oral agreement?  If this is the case wouldnt you include it in the written document?

2.   The contact addresses a straightforward transaction and plainly sets forth that Myskina consented to defendants' use of all photographs taken on July 16, 2002.  This deal is not as complicated Steelers tickets.  This is just,,, can we take your picture.  Did the court entertain the possibility that the contract was so simple that there could have been a side agreement?

3.   The oral agreement was so fundamental that it would not have been omitted by the parties. 

4.   There is no dispute that Myskina was represented by the firm throughout the process.


Although this case did not have a merger clause, it was fully integrated.


Extrinsic Evidence could be considered if

(1) the agreement must in form be a collateral one; Cannot be part and parcel of this.

(2) it must not contradict express or implied provisions of the written contract;

(3) it must be one that parties would not ordinarily be expected to embody in the writing.

o         It must not be so clearly connected with the principal transaction as to be part and parcel of it.


In this case

  1. The alleged oral agreement was not collateral.
  2. The alleged oral agreement contradicts the written agreement.
  3. The restriction of publication should have been expected to be memorialized in writing.



o         The Release, which is printed on Conde Nast letterhead, provides that the signatory model "hereby irrevocably consent[s] to the use of [her] name and the pictures taken of [her] on [a specified date] by [Conde Nast], . . . and others it may authorize, for editorial purposes."

o         Everything shot on this day was covered by the release.

o         Myskina argument would contradict by limiting the agreement.

o         Editorial purposes is an ambiguous, she should have argued what this meantThis does not mean saling photographs to a Russian website.


Class Notes

How about the photographers liability?  Dont bother if fails for the same reason.


How would you argue it?

o         Could you argue her agreement with the photographer occurred AFTER the agreement was signed.

o         The parol evidence does not apply to subsequent agreements.

o         You would argue that is was a separate agreement.


However, the counter argument is that this was contemporaneous and it occurred 7 seconds later.


How would you argue it was separate collateral agreement?

o         He said this is for my personal portfolio.

o         This did not relate to the magazine.

o         Some courts needs separate consideration?  I will do this for you, if you do this for me.


Can she sue the Russians?

o         She said I will give you an interview.

o         Medved violated the terms of the contract in which they released the racy photos.