Whether a Plaintiff may recover under New York Civil Rights Law §§ 50 and 51 where the Defendant used the Plaintiff's likeness, creating a substantially fictionalized impression of the Plaintiff to which the Plaintiff did not consent, and where the Defendant's use of the image was in conjunction with a newsworthy column.

No. Where a photograph bears a real relationship to a newsworthy article and is not an advertisement in disguise, a Plaintiff may not recover under New York Civil Rights Law §§ 50 and 51, regardless of any false impression created by the use of the photo.

Plaintiff, a minor, voluntarily posed for a series of photos to appear in Young and Modern Magazine, Defendant's publication. Defendant, without the written consent of Plaintiff's parent or guardian, used the photos to illustrate the "Love Crisis" column next to a letter to the editor from a girl who got drunk and engaged in promiscuous sexual behavior. The photos depict Plaintiff in several fictionalized poses expressing chagrin, next to headlines declaring, inter alia, "I got trashed and had sex with three guys."

Plaintiff sued in the U.S. District Court for the Southern District of New York alleging that Defendant violated sections 50 and 51 of the New York Civil Rights Law by using her photographs for trade purposes without obtaining the requisite consent. Defendant argued that they were not liable because of the "newsworthiness exception" to the Civil Rights Law. The judge denied Defendant's summary judgment motion, and a jury awarded Plaintiff $100,000 in compensatory damages, finding that the newsworthiness exception did not apply and that the pictures next to the column created a substantially fictionalized implication.

Defendant appealed to the US Court of Appeals for the Second Circuit. The Circuit Court certified to the New York Court of Appeals the question whether the newsworthiness exception of New York Civil Rights Law §§ 50 and 51 applies to circumstances where there is a substantially fictionalized use of a plaintiff's likeness without her consent; and, if so, are there any additional limitations on such a cause of action that would preclude the instant action.

The Court of Appeals observed that Civil Rights Laws §§ 50 and 51 were enacted to provide a statutory right of privacy and to guard against "nonconsensual commercial appropriations of the name, portrait or picture of a living person." Thus, these sections do not apply to a newsworthy article, or one which was not produced for purposes of advertising or trade. The Court noted that this "newsworthiness exception" is to be broadly construed and is to be determined solely based on the content of the article. The Court recognized that there may be a cause of action for a plaintiff whose name and likeness are used in a substantially fictionalized manner which is an attempt to trade on the persona of the plaintiff. In this case, however, the Court held that where a plaintiff's picture is used to illustrate an article on a matter of public interest, there is no liability under §§ 50 and 51 unless the picture either bears no real relationship to the article or the article is an advertisement in disguise. If the used of the picture meets the two criteria of the newsworthiness exception, then a plaintiff may not recover under §§ 50 and 51, regardless of any false impression created by the use of the photo. Because the Court found that liability did not exist under the applicable civil rights laws, it declined to reach the second certified question.

The Court also rejected Plaintiff's attempt to liken its case to Spahn v. Messner 18 N.Y.2d 324 (1967) and Binns v. Vitagraph 210 N.Y. 51 (1913). Both of these cases dealt with defendants telling the story of real life people, but interspersing fact with imaginary incidents and fabricated dialogue. The courts on both of these cases held that the newsworthiness exception did not extend to substantially fictitious biographies. The Court distinguished the instant case from these precedents on the ground that photographs are different from biographies. The latter are so riddled with fiction as to not meet the purpose of the newsworthiness exception.

Judge Bellacosa dissented by arguing that a plaintiff may recover where his or her name or likeness is used in substantially fictionalized way, such that it would create a false implication that the plaintiff is "the subject and signatory" of the newsworthy column.