70 A.D.2d 359, Lopez v. Triangle Communications, Inc.

Citation:70 A.D.2d 359, 421 N.Y.S.2d 57
Party Name:Lopez v. Triangle Communications, Inc.
Case Date:October 30, 1979
 
FREE EXCERPT

Page 359

70 A.D.2d 359

421 N.Y.S.2d 57

Nilza LOPEZ, an infant, by her father and natural guardian,

Bernie Lopez, Plaintiffs-Respondents,

v.

TRIANGLE COMMUNICATIONS, INC., Defendant-Appellant.

Supreme Court of New York, First Department

October 30, 1979.

[421 N.Y.S.2d 58] Samuel E. Klein, Philadelphia, Pa., of counsel (Stephen Froling, New York City, with him on briefs; Rogers & Wells, New York City, and Kohn, Savett, Marion & Graf, P. C., Philadelphia, Pa., attys.), for defendant-appellant.

Morris Honig, New York City, for plaintiffs-respondents.

Before MURPHY, P. J., and SANDLER, LANE, SILVERMAN and ROSS, JJ.

LANE, Justice:

Triangle Communications, Inc. (Triangle) is the publisher of "Seventeen " magazine. The publication addresses a female teen-age audience. Included among its articles is a feature known as the "make-over" section. In it, teen-agers who are not professional models are given makeup, clothing, and hairstyling. "Before-and-after" pictures are taken. The article discussing the make-over contains these pictures, and includes a discussion of the brand names of products used to effectuate the change. Each of the teen-age participants in the feature is paid for posing, and they and their parents normally sign releases.

The infant plaintiff participated in one such feature article. Through inadvertence, plaintiff did not sign a release. Plaintiff's father gave her permission to participate in the make-over feature.

This lawsuit was brought claiming a violation of the New York State Civil Rights Law. After joinder of issue, Triangle moved for summary judgment in its favor. Special Term denied the motion, holding that it could not be determined as a matter of law whether the publication involved constituted proper editorial material or whether it was an advertisement actionable under Civil Rights Law, §§ 50 and 51. We would reverse and grant summary judgment to the defendant publisher.

Civil Rights Law, § 50 prohibits the use of a name, portrait or picture of a living person "for advertising purposes, or for the purposes of trade" without written consent. Civil Rights Law, § 51 provides for a remedy of injunctive relief and damages for violation of § 50.

"Seventeen " magazine, addressing a teen-age female audience, offered grooming and makeup tips as newsworthy to them. The article in which the infant plaintiff's picture...

To continue reading

FREE SIGN UP