New Wrinkle in New York’s Right Of Publicity

by Robert W. Clarida

Messenger v. Gruner + Jahr Printing & Publishing , a February 17 decision by the New York Court of Appeals, has added a new wrinkle to New York’s statutory “right of publicity,” making life much easier for publishers and much tougher for plaintiffs under §§ 50-51 of the state’s Civil Rights law.  In brief, the court held that a person’s photograph may be used without consent in connection with a newsworthy publication, even if the photo, “when juxtaposed with an article, could reasonably [be] viewed as falsifying or fictionalizing [the person's] relationship to the article.”

Plaintiff Jamie Messenger, a 14-year old model from Florida, posed for a series of photographs for Young and Modern (YM), a magazine for teenage girls. The publisher obtained no written consent from her parent or legal guardian.  Three photos of Messenger were subsequently selected  to illustrate an advice column featuring a letter from “Mortified,” a young reader who confessed to engaging in inappropriate sexual conduct after becoming drunk at a party. Messenger brought a diversity action in federal court for violation of §§ 50-51 of the New York Civil Rights law, alleging that the photos were used “for purposes of trade” without written consent and created the false impression that she was the author of the letter.  YM defended on the grounds that the article was “newsworthy” and thus not for purposes of trade despite any possible false impression.

After the district court denied YM’s summary judgment motion, and a jury found for the plaintiff, the case was appealed to the Second Circuit, which sua sponte certified two questions to the New York Court of Appeals: “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?”

The Court of Appeals answered the first question in the negative and thus did not reach the second question.  The court explained that under an older line of cases, most recently Spahn v. Julian Messner, 18 N.Y.2d 324, 21 N.Y.2d 124 (1967), the “newsworthy” defense did not apply where “substantially fictitious” books and films were made of the lives of famous persons without their consent.  A more recent line of cases, however, including Finger v. Omni Publications Intl., 77 N.Y.2d 138 (1990),  permitted the “falsifying or fictionalizing” use of photographs in connection with editorial content as long as the photos bore a “real relationship” to the article and the article was not simply an “advertisement in disguise.”

In Messenger, the plaintiff conceded that a “real relationship” existed between her photos and the content of the article, and that the column was not simply an advertisement in disguise. Thus the possible misperception created by the juxtaposition was not an independent basis on which to deny the newsworthiness of the column. The majority saw no tension between the Spahn line of cases and the Finger line, but simply confined Spahn’s “fictionalization” limitation to cases in which the article is “so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception,” as in Spahn itself, where the work at issue was  “nothing more than [an] attempt to trade on the persona of [baseball legend] Warren Spahn.”

In a scholarly dissent, Judge Bellacosa contended that Spahn authorizes recovery, even for newsworthy articles, when the story is substantially false in relation to the accompanying photos. By confining Spahn to its own facts, he argued, the majority created a “too-facile escape valve from the operation of the statute” which would preclude recovery for private citizens but allow celebrities to invoke the statute: “If a Shirley-Temple-like set of photos were used with this identical column, that would more than likely be actionable, as trading on the persona of a famous individual. The 14-year-old plaintiff adolescent, a private person who cannot even legally give consent. . . should have no less a remedy for someone trading on her persona and aspirations.”

Conclusion

Although Messenger on its face requires a “real relationship” between the photo and the article, the decision raises the clear implication that virtually any relationship, even a false one, can be “real” enough to shield the defendant, as long as the publication is not seeking to trade on the persona of a famous individual. Because the plaintiff conceded the “real relationship” here, however, the definitive resolution of this issue will have to await another day.

© 2000  Cowan, Liebowitz & Latman, P.C.

Disclaimer:

This the information provided in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult with a lawyer concerning your own situation and any specific legal questions you may have.

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