BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, May 28, 1999.)
The U.S. Court of Appeals for the Second Circuit has certified questions concerning the proper interpretation of New York Civil Rights Law sections 50 and 51 to the New York Court of Appeals.1 At issue is whether a plaintiff can recover under New York’s right of privacy statute when a publisher uses her image in a substantially fictionalized way to illustrate a newsworthy piece.
Gruner + Jahr Printing and Publishing (“G&J”) publishes YM, Young and Modern Magazine (the “Magazine” ,) which includes articles and features on beauty, fashion and relationships targeted to an audience of teenage girls. During 1994 and 1995, the magazine contained a regular column entitled “Love Crisis” which featured a letter to and a response from the editor-in-chief about a “love problem.” The columns also contained a series of captioned photographs of a model illustrating the issues raised in the letter. The real names of the authors of the letters were not included in the columns.
Jamie Messenger, then fourteen years old, was booked through a modeling agency to pose for photographs to be published in the Magazine. YM did not receive adequate consent for its use of the photographs because it did not obtain consent from Messenger’s parents. In its June/July, 1995, issue, the Magazine used these photographs to illustrate the “Love Crisis” column which contained the headline “I Got Trashed And Had Sex With Three Guys.” The column included a letter from an author identified only as “Mortified” who related the events described in the headline and sought advice from the editor on how to deal with the consequences. The editor’s response was that the author had made a “major mistake,” and suggested that she be tested for sexually transmitted diseases and pregnancy.
In January of 1997, Messenger’s mother brought an action on her behalf claiming violation of Messenger’s statutory right of privacy, defamation, negligence and intentional infliction of emotional distress. The district court dismissed all claims other than the one alleging a violation of her statutory right of privacy because of the use of her photograph without proper consent.
Thereafter G&J moved for summary judgment arguing that because sections 50 and 51 do not apply in circumstances involving newsworthy material or material in the public interest and the column in question fits within the broad definition of such material, it was entitled to judgment as a matter of law. In its opinion, the district court described the newsworthiness exception and noted that the topic of the column was sufficiently newsworthy to satisfy the requirements of the exception. It concluded, however, that New York courts have not permitted application of the newsworthiness exception in cases in which the use is infected with material and substantial falsity or fictionalization. Concluding that a reasonable jury might find that the publication created the impression that Messenger did have the experiences that were the subject of the column, the fictionalization limitation on the newsworthiness exception might apply and, accordingly, summary judgment was not appropriate.
At the conclusion of the trial which occurred in March, 1998, the jury awarded Messenger $100,000 in damages. In an unpublished opinion read from the bench, the trial judge denied G&J’s motions for judgment as a matter of law or, in the alternative, for a new trial, concluding that the jury had sufficient evidence to reach its substantive conclusions and that the decision of the court on summary judgment with respect to the fictionalization exception had been proper.
In its discussion, the Court cites as the central, dispositive issue in the appeal the proper interpretation of New York Civil Rights Law sections 50 and 51 and, specifically, whether a plaintiff can recover under those sections when a publisher uses her image in a substantially fictionalized way to illustrate a newsworthy piece. Those sections permit recovery when a person, firm or corporation uses for advertising purposes or for purposes of trade the name, portrait or picture of any living person without having first obtained the written consent of such person.
In the present case, there is no dispute that G&J did not obtain adequate consent from Messenger for the use of her photograph, nor is there a dispute that Messenger’s image was used for purposes of trade.
New York courts consistently have refused to construe the terms advertising or purposes of trade as encompassing publications which concern newsworthy events or matters of public interest. However, the New York Court of Appeals has limited the newsworthiness exception in at least two ways, holding that the use of a name or image is not newsworthy or in the public interest if (1) the use has not real relationship to the article or (2) the use is an advertisement in disguise. The Court notes that in some cases New York courts have recognized a third limitation to the application of the newsworthiness exception when the use at issue is “infected with material and substantial falsification.”
Both parties concede that the column at issue concerns a newsworthy subject – teenage sex and its consequences – particularly in light of the broad definition of newsworthiness applied by New York courts. Plaintiff concedes that the use of her photographs does bear a real relationship to the column and that neither the column nor the photographs constitute an advertisement in disguise. Accordingly, the question to be decided is whether there is a third limitation in the form of “substantial fictionalization” which prevents application of the newsworthiness exception to this case. The Court indicates that this important issue remains open under New York law, particularly in light of the New York Court of Appeals 1990 decision in Finger v. Omni Publications International.2
In the Finger case, a photograph of a family was used without its consent to illustrate an article about a fertilization treatment that the family never had used. In its opinion, the Court of Appeals thoroughly reviewed the newsworthiness exception and the two applicable established limitations without mentioning the third: fictionalization.
The Court notes that Finger may have signaled the end of the fictionalization limitation. The language of the decision indicates that there are only two limitations to the exception: “Questions of newsworthiness are better left to reasonable editorial judgment and discretion; judicial intervention should occur only in those instances where there is no real relationship between a photograph and an article or where the article is an advertisement in disguise.” The Court finds this language particularly persuasive because the parties in Finger had briefed the fictionalization issue. Given that the parties squarely presented the issue to the Court of Appeals, its decision not to mention the argument in its discussion suggests that the fictionalization limitation may no longer exist. Also, much of the language of the opinion in Finger emphasized the broad application of the newsworthiness exception and, by implication, the limited reach of any limitations to the exception. On the other hand, the Court of Appeals neither explicitly rejected the fictionalization exception, nor did it overrule earlier cases creating or citing the exception. Therefore, it is at least possible, as the district court concluded, that the Court of Appeals in Finger did not reject the fictionalization limitation entirely.
The Court indicates that it is permitted to certify to a state’s highest court an unsettled and significant question of state law that will control the outcome of the case pending before it. Certification is also permitted for determinative questions of New York law for which there is no controlling precedent of the Court of Appeals. The instant appeal presents precisely such a case because the continued existence of the fictionalization limitation is an unsettled question after Finger and the outcome of the case depends on a correct answer to that question. Further, the Court states that “we recognize that this question is simply too important to New York, with the state’s long history as the hub of the publishing industry, for us merely to make an educated guess about the state of the law.”
Accordingly, the Court certifies the following questions to the New York Court of Appeals:
1. May a plaintiff recover under New York Civil Rights Law Sections 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?
In certifying these questions, the Court indicates that it has no desire to restrict the Court of Appeals from considering any state law issues that it might wish to resolve and welcomes any guidance that it might care to provide with respect to any state law issues presented by the appeal.
Amici curiae briefs were filed by Magazine Publishers of America, Inc., Newspaper Association of America, Inc., The Association of American Publishers, Inc., and the National Association of Broadcasters. They, and many others in the entertainment and communication industries, await the result of this case.
1 Messenger v. Gruner + Jahr Printing and Publishing, U.S. Court of Appeals, 2d. Circuit, New York Law Journal, May 5, 1999 (Decided April 28, 1999).
2 77 N.Y.2d 138 (1990).