BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, May 26, 2000.)
The New York Court of Appeals has answered a question certified to it by the US Court of Appeals for the Second Circuit dealing with an important issue concerning sections 50 and 51 of the Civil Rights Law.1 Its decision denies the claim of a plaintiff whose likeness was used in a substantially fictionalized way in conjunction with a newsworthy column.
They facts in the case are set forth in a column which previously appeared in this space.2 They focus on plaintiff, then a 14-year old aspiring model, who posed for a series of photographs to appear in YM, Young and Modern Magazine aimed at teenage girls and published by Gruner + Jahr Printing. YM did not obtain written consent from plaintiff’s parent or legal guardian.
In its June/July 1995 issue, YM used the photographs to illustrate the “Love Crisis” column which contained the headline “I Got Trashed and Had Sex with Three Guys.” The column began with a letter to Sally Lee, YM’s editor-and-chief, from a 14-year old girl identified only as “Mortified.” Mortified writes that she got drunk at a party and 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.
Illustrating the column are three full-color photographs of plaintiff. One shows her hiding her face as three young men gloat in the background. Captions keyed to Lee’s advice state “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 are pregnant? See a doctor.”
Plaintiff brought an action in the U.S. District Court for the Southern District alleging, among other things, that YM violated sections 50 and 51 of the Civil Rights Law by using her photograph for purposes of trade without obtaining the requisite consent. Section 51, which is 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.” New York does not recognize a common law right of privacy.
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, they had a real relationship to the article and the column was not an advertisement in disguise. Conceding these facts, plaintiff argued that the “newsworthiness” exception did not apply because the column and the pictures together created the false impression that plaintiff was the author of the letter. The District Court agreed and denied summary judgment. It dismissed plaintiff’s additional claims for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress and negligence. Following trial, the jury awarded plaintiff $100,000 in compensatory damages. On appeal, the Second Circuit observed that in older cases New York had recognized a “fictionalization limitation” on the newsworthy exception, but in more recent cases, New York courts have held that when 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. Uncertain whether such cases signal the end of the fictionalization limitation, the Second Circuit certified the following question: “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?”
In its discussion, the Court cites several basic principles concerning the statutory right of privacy that consistently have been restated; (a) it is to be narrowly construed and strictly limited to non-consensual commercial appropriations of the name, portrait or picture of a living person; (b) the sections do not apply to reports of newsworthy events, and (c) “newsworthiness” is to be broadly construed. 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 increase profits, does not mean that the name or likeness has been used for trade purposes within the meaning of the statute. Whether an item is newsworthy depends solely on the content of the article, not the publisher’s motive to increase circulation.
The Court cites three cases to support its conclusion that a claim under sections 50 and 51 does not lie when a plaintiff’s photograph is used to illustrate a newsworthy article, unless there is no real relationship between that article and the photograph or the article is an advertisement in disguise.
In Finger v. Omni Publications Intl., defendant used a photograph of Joseph and Ida Finger and their six children to illustrate an article on caffeine-aided in vitro fertilization. Plaintiff 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 fertility project. The court, fully aware of the false impression potentially created by defendant’s use of the photograph, nevertheless upheld dismissal of plaintiff’s Civil Rights Law claim, holding that the article was newsworthy, that there was a real relationship between the photograph and the article and that it was not an advertisement in disguise.
In Arrington v. New York Times Co., the plaintiff’s photograph was used without his consent as the most prominent illustration of a feature article entitled “The Black Middle Class: Making It” which appeared in The New York Times Sunday Magazine. Plaintiff asserted that the article expressed views with which he did not agree and that using his photograph to illustrate the article was “distorting…not only of black persons of middle class status generally but of himself as its supposed exemplar in particular.” The Court of Appeals rejected his allegation that he was entitled to recover under the Civil Rights Law, concluding that the newsworthiness exemption applied as a matter of law.
In Murray v. New York Magazine Co., plaintiff’s photograph, which was taken while he attended a St. Patrick’s Day parade in green regalia, appeared on the cover of defendant’s magazine. Directly above the photograph was the caption “The Last Of The Irish Immigrants,” and the related article discussed contemporary attitudes of Irish Americans in New York City. Plaintiff was not of Irish extraction. Nevertheless, the Court of Appeals ruled that defendant was entitled to summary judgment because the article was newsworthy, not an advertisement in disguise and because a genuine relationship existed between the photograph and the article.
The Court notes that when these three factors appear, it is clear that a claim does not lie under sections 50 and 51. Of course, a claim under the Civil Rights Law may lie if a plaintiff’s picture is used purely for trade purposes and not in connection with a newsworthy article.
Applying these principles to the instant action, the decision indicates that the “Love Crisis” is newsworthy because it is informative and educational regarding teenage sex, alcohol abuse and pregnancy and the photographs bore a real relationship to the article. Furthermore, 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 may reasonably be drawn from the use of her photographs to illustrate the article.
The District Court and the Second Circuit perceived a tension between the Finger-Arrington-Murray line of cases and the older decisions in Spahn v. Julian Messner, Inc. and Binns v. Vitagraph Co. of America. In the former, defendants published a book entitled “The Warren Spahn Story” about the life of plaintiff, a famous baseball player. The book was largely fiction, replete with imaginary incidents, invented dialogue and manipulative chronologies. The court upheld a jury verdict granting plaintiff an injunction and damages under section 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.”
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 imagination. The court held that defendant’s conduct was actionable under section 51, stating that, although a truthful recounting of the event would be protected, the film was designed to amuse the audience rather than instruct or educate.
The Court states that it sees no inherent tension between the two lines of cases. Each of the Finger, Arrington and Murray cases involved the unauthorized and allegedly false and damaging use of photographs to illustrate newsworthy articles. By contrast, in Bins and Spahn, defendants invented biographies of plaintiffs’ lives. Under these cases an article may be so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthy exception. Here, the “Love Crises” column concedingly was newsworthy and, thus, the case is controlled by the Finger-Arrington-Murray line of cases rather than Binns or Spahn.
The Court rejects the argument in the dissenting option 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 juxtaposition of the plaintiff’s picture with a newsworthy article creates a false implication. It reiterates that such conclusion would conflict with its 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 it and the photograph. It also notes that, contrary to the contention in the dissent, it cannot be fairly argued that fictionalization was not an issue in Finger, Arrington and Murray. The nub of plaintiffs’ complaints in each was that the use of their pictures in the articles created a false impression about them in the minds of the readers.
The decision notes that its conclusion would be the same whether the plaintiff was Jamie Messenger or a famous person. The test is not whether plaintiff is a public or private figure.
Finally, the Court indicates that if the newsworthy 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 section 51 becomes indistinguishable from the common law tort of false light invasion of privacy which is not recognized in New York.
The importance of the issue in this case was highlighted by the filing of amici curiae briefs by publishers, television networks and the Screen Actors Guild. Although the Court makes clear that its decision follows well-settled principles, for many it clarifies a question that did not have a clear answer.
1 Messenger v. Gruner + Jahr Printing and Publishing, NY Court of Appeals, ASCOA, 2 No. 170 (February 17, 2000).
2 NYLJ, Volume 221, No. 102 (May 28, 1999).