Paulsen v. Personality Posters, Inc.

• Citation: 299 N.Y.S.2d 501,59 Misc.2d 444
• Parties: Patrick L. PAULSEN, Plaintiff, v. PERSONALITY POSTERS, INC., Defendant.
• Decision Date: 14 October 1968
• Court: United States State Supreme Court (New York)

Page 501

299 N.Y.S.2d 501

59 Misc.2d 444

Patrick L. PAULSEN, Plaintiff, v. PERSONALITY POSTERS, INC., Defendant.

Supreme Court, Special Term, New York County, Part I.

Oct. 14, 1968.

Eastman & Eastman, New York City, for plaintiff (John L. Eastman, New York City, of counsel).

Fitelson & Mayers, New York City, for defendant (Clifford Forster, New York City, of counsel).

HARRY B. FRANK, Justice.

The plaintiff, Pat Paulsen, a well-known television performer and comedian, moves for a preliminary injunction to enjoin defendant, Personality Posters, Inc., 'from marketing, selling and otherwise dealing in a commercial poster embodying a photograph of the Plaintiff which poster was derived from an unpublished photograph of the Plaintiff which is owned by the Plaintiff.' Defendant corporation is in the business of marketing posters of various personalities throughout the United States.

The photograph involved indeed bespeaks the nature of plaintiff's occupation louder than the proverbial 'thousand words'. A soulfully expressioned plaintiff attired in beruffled cap and prim frock, in a style which might best be characterized as 'latter-day Edna May Oliver,' is shown holding an unlit candle in one hand while his other arm cradles a rubber tire which is hoisted onto his right shoulder. A contemporary touch is added by a banner draped across plaintiff's chest, in the manner, if not with the style, of a beauty pageant contestant, which bears the legend '1968'. The complained-of posters, distributed and marketed by defendant, are nothing more than enlargements, some 30 40 inches in size, of the aforedescribed photograph, with the addition of the words 'FOR PRESIDENT' at the bottom in 2 1/2 letters.

It is undisputed that the original photograph was sent to defendant corporation in late 1967 by plaintiff's agent, Ken Kragen. The parties differ sharply, however, as to the basis on which the picture was submitted. Kragen asserts that he spoke with a representative of the defendant corporation toward the end of 1967 about the possibility of using the photograph for a New Year's poster and inquired whether defendant would be interested in a license agreement for such purpose. According to Kragen, the photograph was sent, at the request of defendant's representative, for inspection in connection with such proposal and with the clear understanding that defendant 'would be able to use the photograph only in connection with a license agreement with royalties going to our client' and that defendant subsequently rejected such offer. Defendant's president, on the other hand, contends that the photograph was sent, unsolicited, by plaintiff's agent from whom several phone calls were thereafter received urging that defendant undertake distribution of the picture in poster form in aid of a publicity campaign being carried on in behalf of plaintiff. Defendant flatly denies that any limitation whatsoever was placed on the time or manner in which such distribution was to be made, and states that such matters were left solely to its discretion, and that the photograph was submitted to it with full authorization for unlimited publication and distribution. Defendant further asserts that it frequently receives photographs for proposed poster distribution from press agents seeking publicity for their clients and that the submission of plaintiff's photograph was in accordance with this customary practice.

Whatever the circumstances surrounding the receipt of the photograph, it is conceded that defendant made no use thereof until July 1968 at which time it began marketing and circulating the posters in issue. It is clear that the decision to distribute the posters at that time was directly related to the interest engendered by plaintiff's current comedy routine which is based upon his entry into the presidential race as the 'Put-On Presidential Candidate of 1968' under the banner of the STAG Party. Satirical or otherwise, plaintiff's aspirations and his provocative comments on various current issues have been aired with regularity on the nationally televised highly popular 'Smothers' Brothers' program. In addition, plaintiff's candidacy has been the subject of comment by other communications media, including a lengthy front page news article in the Wall Street Journal (August 15, 1968), he has received several votes in recent primary elections, and he has participated in various activities traditionally associated with political campaigning.

In conjunction with his comedy routine and presidential candidacy, plaintiff has undertaken an extensive merchandising program whereby he has granted an exclusive license to a California company in connection with all campaign buttons, stickers and posters relating to the 'Pat Paulsen for President' campaign, and it is alleged that defendant's distribution of the posters has infringed upon and interfered with such license arrangement. While defendant's vice-president, in response to a complaint by plaintiff's attorney, indicated in a letter dated July 23, 1968 that distribution of defendant's Paulsen posters would be discontinued the moving papers allege that 'Personality Posters continued and continues to this day its national sales distribution and marketing of the infringing poster.'

The application for injunctive relief is predicated upon the following: (1) an alleged invasion of plaintiff's right of privacy in violation of Section 51 of the Civil Rights Law, and (2) an alleged violation of and infringement upon plaintiff's common law copyright in the photograph which is embodied in the complained-of posters.

It is well settled that the drastic remedy of a temporary injunction is not to be granted unless a clear right thereto is established by the moving papers. The plaintiff's rights must be certain as to the law and the facts and the burden of establishing such an undisputed right rests upon the plaintiff. (Town of Southeast v. Gonnella, 26 A.D.2d 550, 270 N.Y.S.2d 863 mot. dism. 18 N.Y.2d 727, 274 N.Y.S.2d 166, 220 N.E.2d 809.) The normal reluctance to impose a summary restraint in advance of a full and complete trial is particularly acute in a case involving distribution of printed matter (See Rosement Enterprises, Inc. v. Random House, 2 Cir., 366 F.2d 303.).

We turn first to plaintiff's claim under Section 51 of Article 5 of the New York Civil Rights Law, captioned 'Right of Privacy,' which authorizes both injunctive relief and damages where a person's 'name, portrait or picture is used within this state for advertising purposes or for the purpose of trade' without obtaining such person's written consent.

While considerations of social desirability may sometimes have led to a liberal construction of such statutorily derived 'right of privacy', troublesome confrontations with constitutionally protected areas of speech and press have also caused our courts to engraft exceptions and restrictions onto the statute to avoid any conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest. (See Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543).

Where the unauthorized use of name or picture has been purely for 'advertising purposes', in the sense of promoting the sale of a collateral product, stringent enforcement of the statutory prohibition has presented comparatively little difficulty and relief from such 'commercial exploitation' has been liberally granted even to those who might be characterized 'public figures'. (See Manger v. Kree Inst. of Electrolysis, 2 Cir., 233 F.2d 5; Flores v. Mosler Safe Co., 7 N.Y.2d 276, 196 N.Y.S.2d 975, 164 N.E.2d 853; Garden v. Parfumerie Rigaud Inc., 151 Misc. 692, 271 N.Y.S. 187; Hofstadter and Horowitz, Development of The Right of Priacy in New York, p. 28.) A far more restrictive treatment, however, has been accorded the proscription against use 'for the purposes of trade', particularly where the use has been in furtherance of the business of a communications medium. Consonant with constitutional considerations, it has consistently been emphasized that the statute was not intended to limit activities involving the dissemination of news or information concerning matters of public interest and that such activities are privileged and do not fall within 'the purposes of trade' contemplated by Section 51, notwithstanding that they are also carried on for a profit (Humiston v. Universal Film Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752; Lahiri v. Daily Mirror Inc., 162 Misc. 776, 295 N.Y.S. 382; Callas v. Whisper, Inc., 198 Misc. 829, 101 N.Y.S.2d 532, aff'd 278 App.Div. 974, 105 N.Y.S.2d 1001, aff'd 303 N.Y. 759, 103 N.E.2d 543; Booth v. Curtis Publishing Co., 15 A.D.2d 343, 223 N.Y.S.2d 737). Thus, it was early held that newspapers, magazines, and newsreels are exempt from the statutory injunction when using a name or picture in connection with an item of news or one that is newsworthy and such privileged status has also been extended to other communications media including books, comic books, radio, television and motion pictures. (See Gautier v. Pro-Football, Inc., 278 App.Div. 431, 106 N.Y.S.2d 553, aff'd 304 N.Y. 354, 107 N.E.2d 485; Dallesandro v. Henry Holt & Co., 4 A.D.2d 470, 166 N.Y.S.2d 805.) Indeed, it is clear that any format of 'the written word or picture', including posters and handbills (see Rubino v. Slaughter, Sup., 136 N.Y.S.2d 873; 47 N.Y.Jur. 97, Privacy Sect. 25) will be similarly exempted in conjunction with the dissemination of news or public interest presentations (Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543, supra).

The scope of the subject matter which may be considered of 'public interest' or newsworthy' has been defined in most liberal and far reaching terms. The privilege of enlightening the public is by no means limited to dissemination of news in the sense of current events but extends far beyond to include...