NY Court of Appeals 
LII
 
 Collection home Search  Tell me more  commentary
LII home 


USCOA, 2 No. 170
Jamie Messenger, an Infant Under the Age of Eighteen, &c., Respondent-Appellant,
v.
Gruner + Jahr Printing and Publishing, &c., Appellant-Respondent, Sally Lee, &c., Defendant.


2000 NY Int. 1

February 17, 2000

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Robert G. Sugarman, for appellant-respondent.
Mitchell A. Stein, for respondent-appellant.
ABC, Inc., et al.; Screen Actors Guild, Inc., amici curiae.


PER CURIAM

:

Plaintiff, a 14-year-old aspiring Florida model, posed for a series of photographs in New York to appear in Young and Modern (YM), a magazine for teenage girls published by defendant Gruner + Jahr Printing. Plaintiff consented to the photo shoot, but YM did not obtain written consent from her parent or legal guardian. YM used the photos to illustrate the "Love Crisis" column in its June/July 1995 issue.

The column began with a letter to Sally Lee, YM's editor-in-chief, from a 14-year-old girl identified only as "Mortified." Mortified writes that she got drunk at a party and then had sex with her 18-year-old boyfriend and two of his friends. Lee responds that Mortified should avoid similar situations in the future, and advises her to be tested for pregnancy and sexually transmitted diseases. Above the column, in bold type, is a pull-out quotation stating, "I got trashed and had sex with three guys." Three full-color photographs of plaintiff illustrate the column -- one, for example, shows her hiding her face, with three young men gloating in the background. The captions are keyed to Lee's advice: "Wake up and face the facts: You made a pretty big mistake;" "Don't try to hide -- just ditch him and his buds;" and "Afraid you're pregnant? See a doctor."

Plaintiff brought this diversity action in the United States District Court for the Southern District of New York, alleging, among other things, that YM violated sections 50 and 51 of the New York Civil Rights Law by using her photographs for trade purposes without obtaining the requisite consent. Defendants moved for summary judgment, arguing that they could not be held liable under the Civil Rights Law because the photographs had been used to illustrate a newsworthy column, the pictures had a real relationship to the article and the column was not an advertisement in disguise. Plaintiff conceded these facts but argued that the "newsworthiness" exception did not apply because the column and pictures together created the false impression that plaintiff was the author of the letter. The District Court denied summary judgment, holding that the newsworthiness exception does not apply where the juxtaposition of a photograph to an article creates a substantially fictionalized implication.1 The court dismissed plaintiff's additional claims for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress and negligence. Following trial on the Civil Rights Law claim, the jury awarded plaintiff $100,000 in compensatory damages.

Defendants appealed to the United States Court of Appeals for the Second Circuit, arguing that the newsworthiness exception barred recovery under the Civil Rights Law. The Second Circuit observed that New York had, in older cases, recognized a "fictionalization limitation" on the newsworthiness exception (see, e.g., Spahn v Julian Messner, Inc., 21 NY2d 124, 127). The court noted, however, that our more recent cases have held that, where a photograph illustrates an article on a matter of public interest, the newsworthiness exception bars recovery unless there is no real relationship between the photograph and the article, or the article is an advertisement in disguise (see, e.g., Finger v Omni Publications Intl., 77 NY2d 138, 141-142). Uncertain whether Finger "signaled the end of the fictionalization limitation," the Second Circuit sua sponte certified to us the following two questions, which we accepted for review (93 NY2d 948):

"1. May a plaintiff recover under New York Civil Rights Law §§ 50 and 51 where the defendant used the plaintiff's likeness in a substantially fictionalized way without the plaintiff's consent, even if the defendant's use of the image was in conjunction with a newsworthy column?"
"2. If so, are there any additional limitations on such a cause of action that might preclude the instant case?"

We answer the first question in the negative, and therefore need not reach the second.

Analysis

New York does not recognize a common law right of privacy (see, Roberson v Rochester Folding Box Co., 171 NY 538; see also, Wojtowicz v Delacorte Press, 43 NY2d 858, 860). In response to Roberson, the Legislature enacted Civil Rights Law §§ 50 and 51, which provide a limited statutory right of privacy. Section 50 makes it a misdemeanor to use a living person's "name, portrait or picture" for advertising or trade purposes "without having first obtained the written consent of such person, or if a minor of his or her parent or guardian." Section 51 -- relevant here -- provides:

"Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided [in section 50] may maintain an equitable action * * * to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use" (internal footnote omitted).

This Court has consistently restated several basic principles concerning the statutory right of privacy. First, recognizing the Legislature's pointed objective in enacting sections 50 and 51, we have underscored that the statute is to be narrowly construed and "strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person" (Finger v Omni Publications, supra, 77 NY2d 138, 141; see also, Prosser, Privacy, 48 Cal L Rev 383, 402-403). Second, we have made clear that these sections do not apply to reports of newsworthy events or matters of public interest (see, e.g., Howell v New York Post Co., 81 NY2d 115, 123; Stephano v News Group Publications, 64 NY2d 174, 184). This is because a newsworthy article is not deemed produced for the purposes of advertising or trade. Additionally, these principles reflect "constitutional values in the area of free speech" (Howell v New York Post, supra, 81 NY2d, at 123).

Third, this Court has held that "newsworthiness" is to be broadly construed. Newsworthiness includes not only descriptions of actual events (see, e.g., Freihofer v Hearst Corp., 65 NY2d 135 [details of matrimonial action]; Gautier v Pro-Football, Inc., 304 NY 354 [halftime show at football game]) but also articles concerning political happenings, social trends or any subject of public interest (see, Beverley v Choices Women's Medical Center, 78 NY2d 745, 752; Stephano v News Group, supra, 64 NY2d, at 184). Significantly, the fact that a publication may have used a person's name or likeness "solely or primarily to increase the circulation" of a newsworthy article -- and thus to increase profits -- does not mean that the name or likeness has been used for trade purposes within the meaning of the statute. Indeed, "most publications seek to increase their circulation and also their profits" (Stephano v News Group, supra, at 184-185). Whether an item is newsworthy depends solely on "the content of the article" -- not the publisher's "motive to increase circulation" (id., at 185; see also, Freihofer v Hearst, supra, 65 NY2d, at 141).

Applying these principles, courts have held that a wide variety of articles on matters of public interest -- including those not readily recognized as "hard news" -- are newsworthy (see, e.g., Stephano v News Group, supra, 64 NY2d, at 179-186 [picture of plaintiff wearing leather bomber jacket in column about "new and unusual products and services"]; Abdelrazig v Essence Communications, 225 AD2d 498 [picture of plaintiff in "African garb" concerned "newsworthy fashion trends in the Black community"], lv denied 88 NY2d 810; Creel v Crown Publishers, 115 AD2d 414 [picture of plaintiffs illustrating guide to nude beaches]; Lopez v Triangle Communications, 70 AD2d 359, 360 ["make-over" pictures in Seventeen magazine]; Rand v Hearst Corp., 31 AD2d 406, 407-411 [quotation on book cover comparing author to plaintiff], affd 26 NY2d 806; Stern v Delphi Internet Services Corp., 165 Misc 2d 21, 22-27 [lewd photograph of plaintiff used in connection with promotion for internet news service]; Welch v Group W. Productions, 138 Misc 2d 856 [use of television commercial in connection with Clio awards]; Namath v Sports Illustrated, 80 Misc 2d 531, 533-535 [photographs of plaintiff in promotional material], affd 48 AD2d 428, and affd 39 NY2d 897; Ann-Margret v High Society Magazine, 498 F Supp 401, 405 [partially nude photograph of plaintiff]).

Consistent with the statutory -- and constitutional -- value of uninhibited discussion of newsworthy topics, we have time and again held that, where a plaintiff's picture is used to illustrate an article on a matter of public interest, there can be no liability under sections 50 and 51 unless the picture has no real relationship to the article or the article is an advertisement in disguise (see, Howell v New York Post, supra, 81 NY2d, at 123; Finger v Omni Publications, supra, 77 NY2d, at 143; Arrington v New York Times Co., 55 NY2d 433, 440, cert denied 459 US 1146; Murray v New York Magazine Co., 27 NY2d 406, 409). That has been so even where a plaintiff's photograph, when juxtaposed with an article, could reasonably have been viewed as falsifying or fictionalizing plaintiff's relation to the article.

In the recent case of Finger, for example, defendant used a photograph of plaintiffs Joseph and Ida Finger and their six children to illustrate an article on caffeine-aided in vitro fertilization. Plaintiffs sought damages for defendant's use of their photograph, arguing that none of their children were conceived through in vitro fertilization, and that they did not participate in the caffeine-aided fertility project. While this Court was made well aware of the false impression potentially created by defendant's use of the photograph, we nevertheless upheld dismissal of plaintiffs' Civil Rights Law claim, repeating once again that the article was newsworthy, that there was a real relationship between the photograph and the article, and that the article was not an advertisement in disguise (see, 77 NY2d, at 142-145).

Similarly, in Arrington, the New York Times Sunday Magazine used the plaintiff's photograph without his consent "as the most prominent illustration of a feature article entitled 'The Black Middle Class: Making It'" (55 NY2d, at 437). Plaintiff alleged that the article expressed views with which he did not agree and that illustrating the article with his photograph was "'distorting' * * * not only of black persons of 'middle class' status generally but also of himself, as its supposed exemplar, in particular" (id. [emphasis added]). He complained that "others quite reasonably took the article's ideas to be ones he shared" (id., at 438). And, in his brief to this Court, Arrington argued, citing Binns v Vitagraph Co. of America (210 NY 51), that "to the extent that publication of [his] photograph * * * conveys the impression that he shares the views stated in the * * * article, it is pure fiction" that is "prohibited by the statute" (Plaintiff's Brief, at 19). Still, we rejected plaintiff's allegation that he was entitled to recover under the Civil Rights Law, concluding that the newsworthiness exception applied as a matter of law. We declared that plaintiff's contention that the article portrayed him in a "false light" was not cognizable, and that it would be "unwise" for the courts "to essay the dangerous task of passing on value judgments based on the subjective happenstance of whether there is an agreement with views expressed on a social issue" (id., at 441-442).

Again in Murray, plaintiff's photograph, taken while attending a St. Patrick's Day Parade in green regalia, appeared on the cover of the defendant's magazine. "Directly above that photograph" was the caption, "The Last of the Irish Immigrants" (Murray v New York Magazine Co., supra, 27 NY2d, at 408). The article discussed "contemporary attitudes of Irish-Americans in New York City" (id., at 409). Although the Murray plaintiff was "not of Irish extraction" (id., at 408), we ruled that defendant was entitled to summary judgment, because the article was newsworthy and not advertising in disguise, and because a genuine relationship existed between the photograph and the article (id., at 408-410).

Thus, it is clear that a Civil Rights Law §§ 50 and 51 claim does not lie where a plaintiff's photograph is used to illustrate a newsworthy article. There are two limitations: first, there must be a real relationship between the article and the photograph (see, e.g., Thompson v Close-Up, 277 AD 848 ["no connection" between photograph and article on dope peddling]), and second, the article cannot be an advertisement in disguise (see, e.g., Beverley v Choices, supra, 78 NY2d, at 752-753 [calendar was advertisement in disguise]). Of course, a Civil Rights Law claim may lie if a plaintiff's picture is used purely for trade purposes, and not in connection with a newsworthy article (see, Brinkley v Casablancas, 80 AD2d 428 [Civil Rights Law action lies for defendants' distribution of pin-up posters without plaintiff's consent]).

Applying these settled principles, we answer the first certified question in the negative. Plaintiff concedes that the "Love Crisis" column was newsworthy, since it is informative and educational regarding teenage sex, alcohol abuse and pregnancy -- plainly matters of public concern. Further, she concedes that the photographs bore a real relationship to the article, and there is no allegation that the article was an advertisement in disguise. Given these facts, Finger, Arrington and Murray dictate that plaintiff may not recover under the Civil Rights Law, regardless of any false implication that might be reasonably drawn from the use of her photographs to illustrate the article.2

Notwithstanding these precedents, plaintiff contends that an action lies under the Civil Rights Law where a photograph, juxtaposed with an article, creates a "substantially fictionalized" implication. In support of this assertion, plaintiff cites two cases: Spahn v Julian Messner, Inc. (18 NY2d 324, vacated 387 US 239, adhered to on remand 21 NY2d 124 [1967]), and Binns v Vitagraph Co. of America (210 NY 51 [1913]).

In Spahn, defendants published a book entitled The Warren Spahn Story about the life of plaintiff, a famous baseball player. The book, however, was largely fiction. As was found by the trial court, the book was replete with imaginary incidents, invented dialogue, dramatized portrayals and manipulated chronologies. There was no effort and no intention to follow the facts of plaintiff's life. Defendants conducted little research, and never interviewed plaintiff, his family or any baseball player who knew him. This Court upheld a jury verdict granting plaintiff an injunction and damages pursuant to Civil Rights Law § 51, stating that although an unauthorized, truthful biography of plaintiff would be newsworthy, the protection of the newsworthiness doctrine did not extend to this "substantially fictitious biography" (18 NY2d, at 328-329). On remand from the United States Supreme Court to consider the First Amendment implications of the verdict, this Court adhered to its decision, stating that it was "unnecessary" to protect the "knowing fictionalization presented here" (21 NY2d, at 129).

Similarly, in Binns, defendant produced a film about plaintiff's role in rescuing the passengers of a shipwrecked boat. Although based on a true occurrence, the details were manufactured, and the story was "mainly a product of the imagination." This Court held that defendant's conduct was actionable under section 51, stating that although a truthful "recounting or portraying [of] an actual event" would be protected, the film was designed to amuse the audience rather than to "instruct or educate" (see, Binns v Vitagraph Co., supra, 210 NY, at 56-59).

The District Court and the Second Circuit perceived a tension between the Finger-Arrington-Murray line and the older Binns-Spahn cases, in that the older cases held that the substantially fictionalized use of a plaintiff's name or likeness may be actionable, while the newer cases -- without citing Binns or Spahn -- focus on the existence of a "real relationship" and whether the work is an advertisement in disguise. Thus, the Second Circuit certified the present questions to us.

We see no inherent tension between the Finger-Arrington-Murray line and the Binns-Spahn line. Finger, Arrington and Murray, which are directly on point, state the rule applicable here. All three cases involved the unauthorized, and allegedly false and damaging, use of plaintiffs' photographs to illustrate newsworthy articles. Because the photographs illustrated newsworthy articles, because there was a real relationship between the photographs and the articles, and because the articles were not advertisements in disguise, we concluded that none of those plaintiffs stated a Civil Rights Law claim. Nor does plaintiff here.

By contrast, Binns and Spahn concerned a strikingly different scenario from the one before us. In those cases, defendants invented biographies of plaintiffs' lives. The courts concluded that the substantially fictional works at issue were nothing more than attempts to trade on the persona of Warren Spahn or John Binns. Thus, under Binns and Spahn, an article may be so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception. Here, by contrast, the "Love Crisis" column was concededly newsworthy. Thus, this case is controlled by Finger -- not by Binns or Spahn.

The dissent argues that Binns and Spahn permit a plaintiff to recover if the plaintiff's name or likeness is used in a substantially fictionalized way -- including where, as here, the use of a plaintiff's picture in juxtaposition to a newsworthy article creates a false implication (see, Dissent, at 2-8). This, however, conflicts with our holdings in Finger, Arrington and Murray that the use of a photograph to illustrate a newsworthy article does not state a claim under the Civil Rights Law -- regardless of any false impression created by the use of the photograph -- so long as the article is not an advertisement and there is a real relationship between the photograph and the article.3 For that same reason, the dissent is wrong to assert that our discussion in Gautier v Pro-Football, Inc. (supra, 304 NY 354, 359-360), which mirrors the analysis in Binns and Spahn, controls the result here (see, Dissent, at 4-7). Simply, neither Binns, Spahn nor Gautier concerns the use of a photograph to illustrate a newsworthy article.4

Further, contrary to the dissent, it cannot be fairly argued that fictionalization was not at issue in Finger, Arrington and Murray (see, Dissent, at 8-13). Rather, as noted, the nub of plaintiffs' complaints in all three cases was that the use of their pictures in the articles created a false impression about them in the minds of readers. The fictionalization issue was squarely addressed in the Finger briefs (see, Plaintiff's Brief, at 5, 10-13; Defendant's Brief, at 3, 28-33), as well as in the Arrington briefs (see, Plaintiff's Brief, at 19). Indeed, in his brief to this Court, Arrington cited Binns for the proposition that "fiction" was actionable under sections 50 and 51 (see, id.). In response, defendant argued that, under Murray, Arrington could not recover because the picture bore a real relationship to the newsworthy article (see, Defendant's Brief, at 11-25). We rejected the very same claim in Arrington that plaintiff raises here: that the Civil Rights Law allows recovery where the juxtaposition of a photograph to the text is distorting in its implication that plaintiff is the subject of the article. Thus, it is clear from Finger, Arrington and Murray that when a plaintiff's likeness is used to illustrate a newsworthy article, the plaintiff may not recover under sections 50 and 51 even if the use of the likeness creates a false impression about the plaintiff. This holding applies equally in the case at hand.

Also contrary to the dissent, our result would be the same whether plaintiff were Jamie Messenger or a famous person, like Shirley Temple (see, Dissent, at 8). The test is not whether plaintiff is a public or private figure. Rather, the analysis centers on whether the photograph bears a real relationship to a newsworthy article and is not an advertisement in disguise. Where those requirements are met, there is no cause of action under the Civil Rights Law.

Notably, if the newsworthiness exception is forfeited solely because the juxtaposition of a plaintiff's photograph to a newsworthy article creates a false impression about the plaintiff, liability under Civil Rights Law § 51 becomes indistinguishable from the common law tort of false light invasion of privacy. One form in which the false light invasion of privacy tort "frequently appears is the use of the plaintiff's picture to illustrate a book or an article with which he has no reasonable connection, with the implication that such a connection exists" (Prosser and Keeton, The Law of Torts § 117, at 864 [5th ed] [emphasis added]). New York does not recognize such a common law tort (see, Howell v New York Post Co., supra, 81 NY2d, at 123-124).

Accordingly, the first certified question should be answered in the negative, and we need not address the second.


Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to § 500.17 of the Rules of Practice of the New York State Court of Appeals, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question No. 1 answered in the negative and certified question No. 2 not answered. Opinion Per Curiam. Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur. Judge Bellacosa dissents and votes to answer certified question No. 1 in the affirmative in an opinion.

Decided February 17, 2000