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PRIVACY RIGHTS - NEWSWORTHINESS - FICTIONALIZATION - PUBLISHED PHOTOGRAPHS - CIVIL RIGHTS LAW 50 - ADVERTISEMENTS IN DISGUISE - REAL RELATIONSHIP

No right of privacy action exists when a person's photograph is used to illustrate a newsworthy article unless the picture bears no real relationship to the article, or the article is an advertisement in disguise.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

Defendant's magazine, published for teenage girls, used a photograph of Plaintiff in a column discussing matters related to teenage sex, alcohol abuse and pregnancy. The picture of Plaintiff was shown in conjunction with pull-out quotations drawn from the column. Plaintiff sued in federal district court, alleging that Defendant used the pictures for trade purposes without getting the consent of her parents as required by New York Civil Rights Law 50 and 51. The District Court denied Defendant's summary judgment motion, holding that while the law recognizes an exception to 50 where an article discusses newsworthy subject matter, the exception does not apply where the newsworthy article creates a substantially fictionalized image associated with the person's picture. The Second Circuit Court of Appeals certified to the New York Court of Appeals two questions of whether sections 50 and 51 permit recovery where plaintiffs image was used in a substantially fictionalized way and whether there are any other limits to such a cause of action.

Civil Rights Law 50 prohibits the use of an individual's picture for advertising or trade purposes without his or her consent (or, if the individual is under the age of eighteen years, the consent of the minor's parents). Section 51 provides a corresponding right of action for the individual involved. In previous cases considering the scope of 50, the Court has recognized an exception to liability where the article or report covers newsworthy events or matters of public interest. Subject matter qualifying for this exception has been defined broadly, and includes any subject of public interest so long as it bears a real relationship to a newsworthy article and does not constitute an advertisement in disguise. Plaintiff conceded the newsworthiness of the article. The Court held that the use of Plaintiff's picture in Defendant's column was not within the purview of 50 because the photo bore a real relationship to a newsworthy article about teenage sex and drinking and was not an advertisement in disguise.

Plaintiff conceded that neither of these first two limitations applied in her case. Instead, plaintiff argued that a limitation also applies where newsworthy articles contain fictitious material. The Court disagreed. The Court distinguished a line of cases dealing with fictionalized implications in articles on the ground that they involved attempts to trade on the persona of the plaintiffs and were so infected with embellishment as not to fulfill the purpose of the newsworthiness exception. Here, only the link between the photograph and article was fictionalized, not the article itself.

ISSUE & DISPOSITION

Issue(s)

Whether a right of privacy action under New York Civil Rights Law 50 and 51 exists when a person's photograph is used in a substantially fictionalized way without the person's consent, but the photograph is used to illustrate a newsworthy article.

Disposition

No. When a person's picture is used to illustrate a newsworthy article, no privacy action exists under 50 and 51 unless the picture has no real relationship to the article, or the article is an advertisement in disguise.

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

Other Sources Cited by the Dissent

COMMENTARY

State of the Law Before Messenger

Although New York does not recognize a common law right of privacy, Civil Rights Law 50 and 51 provide a limited statutory right of privacy by prohibiting the use of a living person's "name, portrait or picture" for advertising or trade purposes without first obtaining the written consent of such person (or, if a minor, his or her parent or guardian).

The Court of Appeals has consistently maintained that the language of section 50 must be narrowly construed, limiting it to "nonconsensual commercial appropriations," and creating an exception for newsworthy events or matters of public interest. Finger v. Omni Publications Intl., 77 N.Y.2d 138 (1990). Although "newsworthiness" is broadly construed, the determinative factor is "the content of the article." Stephano v. News Group Publications, 64 N.Y.2d 174 (1984).. A wide variety of articles can be considered "newsworthy" even though they are not recognized as "hard news." There are two exceptions to the newsworthiness exemption: liability under 50 and 51 exists if the picture has no real relationship to the article or the article is an advertisement in disguise. However, the court has never determined whether there is a third "fictionalization" exception. Such an exception would expose a defendant to liability for creating an impression that is not a true picture or representation of the actual facts. Binns v. Vitagraph Co. of Am. 210 N.Y. 51 (1913); Pagan v. New York Herald Tribune, 32 A.D.2d 341 [1st Dept. 1969], aff'd without opn. 26 N.Y.2d 941 (1970).

Effect of Messenger on Current Law

The Court, in its per curiam opinion, clarified that only two conditions bar the newsworthiness privilege: 1) where there is no real relationship between the photograph in question and the newsworthy article and 2) where the article is an advertisement in disguise. "Newsworthiness" is to be construed broadly. Messenger establishes that the newsworthiness exception applies irrespective of whether the juxtaposition of the photograph and the newsworthy article may arguably have created a false or misleading impression as to the plaintiff's relationship to the article. The majority found that the law in previous decisions had established that the creation of a false impression was not enough to bar the application of the newsworthiness exception. See Finger v. Omni Publications, 77 N.Y.2nd 138 (N.Y. 1990); Arrington v. N.Y. Times, 55 N.Y.2d 433 (1982).

The majority distinguished the Finger-Arrington line of cases from the Court's earlier decisions in Binns v. Vitagraph Co., 21 N.Y. 51 (N.Y. 1913), and Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (N.Y. 1967). Both Binns and Spahn involved violations of Civil Rights Law 50 arising from the publication of "substantially fictionalized" biographical accounts for which the plaintiffs sought recovery. The Court refused to extend the "fictionalization exception" of Binns and Spahn to a case where, as here, the article itself is not fictionalized, but only the relationship between the article and the photograph. The Court concluded that Binns and Spahn determined that the fictionalization of the articles themselves rendered them not newsworthy, and that therefore they were not within the exception. The Court clarified that under Binns and Spahn an article may be so infected with fiction, dramatization, or embellishment that it cannot satisfy the newsworthiness exception. Further, the Court noted that the test would produce the same result for a famous as for a non-famous plaintiff.

Dissent

Judge Bellacosa objected both to the majority's analysis and to its result. He argued that the newsworthiness exception required a third "material and substantial falsification" prong. Such a prong would allow a cause of action against the user of a photograph where, as here, the juxtaposition of the photograph and article creates a misleading or false impression of the photograph's subject.

The dissent also argued that the divergence of the Finger-Arrington line of cases from the Binns-Spahn line, relied upon by the majority was, in fact, the result of a the fact that Finger and cases like it concerned the "real relation" prong and did not, therefore, need to address the "material and substantial falsification" prong. In the dissent's view, the majority wrongly interpreted the absence of discussion of this third prong to be a repudiation of its existence. The dissent argued that to recognize this third exception would be consistent with the trend of recent Court of Appeals rulings that narrow the scope of the Civil Rights Law.

Unanswered Questions

The decision fails to define clearly what the elements of a "real relationship" are. How will courts determine whether this relationship between the photo and the published work exists? To what degree must the relationship exist for the limitation to apply? How are courts to distinguish between accounts so "infected with fiction" that they are not newsworthy from those that are slightly fictionalized?

Survey of the Law in Other Jurisdictions

Unlike New York, but following the approach of the majority of states, Texas uses common law to recognize a more general right to privacy. Texas courts allow a cause of action where plaintiff has suffered "unauthorized appropriation or exploitation of his name and likeness." Kimbrough v. Coca-Cola USA, 521 SW 2d 719 (Tex. Civ. App. 1975). More recently, the Texas Supreme Court rejected a cause of action where the defendant's act cast the plaintiff in a false light before the public. Cain v. Hearst Corp., 878 SW 2d 577 (Tex. 1994).

The California Civil Code offers a protection similar to that provided by the New York civil rights statute. The code allows a cause of action where "any person knowingly uses another's name, voice, signature, photograph, or likeness in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without such person's prior consent." Cal. Civ. Code 3344 (1997). Also similar to the New York approach, the Code does not require consent for use in connection with "news, public affairs, or sports broadcast or account, or any political campaign." Id. California case law, however, provides only a limited exemption for such news and public events. A plaintiff can still pursue a cause of action of action if the use is knowingly false or is not reasonably necessary to communicate information concerning news or public events. Hoffman v. Capital Cities/ABC, 33 F. Supp 867 (C. D. Cal. 1999) (denying that defendant's use satisfied the newsworthiness exception to liability under 3344 where defendant had used computer effects to alter a photograph, so the actor Dustin Hoffman's character in the film Tootsie appeared in designer clothing in an advertisement). Unlike New York's purely statutory right, California law retains a common law cause of action for misappropriation of name or likeness that is not captured by the statute. Montana v. San Jose Mercury News, 40 Cal. Rptr. 2d 639, 34 Cal. App. 4th 790 (Cal. Ct. App. 1995).

Following this trend, Massachusetts creates a statutory cause of action for unauthorized use of a person's name, portrait, or picture for advertising or "purposes of trade." Mass. Gen. Law ch 214 3A . Rather than engaging in an inquiry concerning the newsworthiness of the use, the courts focus on the defendant's intent. Plaintiffs can recover where "the defendant uses the plaintiff's name, portrait or picture deliberately to exploit its value for advertising or trade purposes." Tropeano v. Atlantic Monthly, 370 Mass. 745, 749 400 NE 2d 847, 850 (Mass. 1980) (denying plaintiff a cause of action where her photograph accompanied a magazine article concerning evolving sexual and social mores because the use was incidental rather than deliberate).

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