745 F.2d 123 (2nd Cir. 1984), 724, Lerman v. Flynt Distributing Co., Inc.

Docket Nº:724, Docket 83-7735.
Citation:745 F.2d 123
Party Name:Jackie Collins LERMAN, Plaintiff-Appellee, v. FLYNT DISTRIBUTING CO., INC., Defendant-Appellant.
Case Date:September 10, 1984
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 123

745 F.2d 123 (2nd Cir. 1984)

Jackie Collins LERMAN, Plaintiff-Appellee,


FLYNT DISTRIBUTING CO., INC., Defendant-Appellant.

No. 724, Docket 83-7735.

United States Court of Appeals, Second Circuit

September 10, 1984

Argued Jan. 30, 1984.

Page 124

[Copyrighted Material Omitted]

Page 125

[Copyrighted Material Omitted]

Page 126

Jeffrey H. Daichman, New York City (Norman Roy Grutman, Grutman Miller Greenspoon & Hendler, New York City, of counsel), for plaintiff-appellee.

Edward S. Rudofsky, New York City (David L. Kahn, Los Angeles, Cal., Frederick A. Polatsek, Zane & Rudofsky, New York City, of counsel), for defendant-appellant.

Irving Scher, New York City (Lauren W. Field, Tami J. Aisenson, Weil, Gotshal & Manges, New York City, of counsel), for Intern. Periodical Distributors Ass'n, Inc., American Booksellers Ass'n, Inc., Nat.

Page 127

Ass'n of College Stores, and Periodical and Book Ass'n of America, Inc., amici curiae.

Before VAN GRAAFEILAND and CARDAMONE, Circuit Judges, and BONSAL, District Judge. [*]

CARDAMONE, Circuit Judge.

Freedom of expression preserves all other liberties so inseparably that freedom of the press and a free society either prosper together or perish together. Yet, because of its enormous power, the contemporary press is under heavy attack because of a widely held perception that it uses its special First Amendment status as a license to invade individual privacy. This case illustrates the complexity of the concerns when these interests clash.

Defendant, a national distributor of magazines in which offensive material concerning plaintiff appeared, appeals from a judgment in plaintiff's favor. In her action plaintiff asserted causes of action for libel, violation of a statutory right of privacy, and appropriation of the common law right to publicity. In every invasion of privacy suit there is a course to be run in order for plaintiff to reach the goal of recovery. In this case, plaintiff's libel action was dismissed and her right to publicity claim fails to fit within that tort. The civil rights cause does not lie as one for advertising purposes, as that term is defined under state law; but it does state a cause of action for defendant's invasion for trade purposes of her right to privacy. Having successfully progressed that far, plaintiff would need to demonstrate a level of defendant's fault on that privacy claim sufficient to satisfy constitutional protection for freedom of the press. Here, on the final lap, plaintiff's proof falls short.

I Background

On February 29, 1980 the plaintiff Jackie Collins Lerman received a package at her home in London, England. An accompanying letter from a publicity agent who had formerly worked with Ms. Lerman explained that nude photographs, supposedly of plaintiff, appeared in the enclosed advance copy of Adelina magazine. Plaintiff discovered that the May 1980 issue of Adelina had misidentified her as an actress who appeared in Ms. Lerman's and her husband Oscar Lerman's movie entitled "The World is Full of Married Men." Two black and white photographs of the anonymous actress printed from the movie film appeared on pages 120-21 of the magazine. The misidentified actress appears topless in one of the pictures and in an "orgy" scene in the other. The caption identifies the photos as being Ms. Lerman and labels her as the "starlet" who appeared in an orgy scene in the film.

The cover of the magazine proclaimed to its readers: "In the Nude from the Playmen archives ... Jackie Collins." The short article accompanying the actress' photo with Ms. Lerman's name comments on the increasing willingness of "serious" actresses to appear nude in films. While Ms. Lerman authored the book and wrote the screenplay for "Married Men" and her husband directed the movie, she did not appear in the movie, clothed or otherwise, and has never appeared nude in public.

Immediately upon receipt of this package, Ms. Lerman retained a lawyer and three weeks later--on March 24, 1980--commenced an action in the United States District Court for the Southern District of New York (Werker, J.) against the publisher, Chuckleberry Publishing, Inc. ("Chuckleberry"), and against the original national distributor, Publishers Distributing Company, Inc. ("PDC" or "Publishers Distributing") based upon the May 1980 publication and distribution of Adelina. Plaintiff sought an injunction and damages based on (a) libel (b) defendant's violation of New York's Civil Rights Law Secs. 50-51 and (c) invasion of her common law right to publicity.

Page 128

On March 31 the district judge issued a preliminary injunction restraining the distribution of Adelina. While the extent of the original defendants' compliance with that injunction is disputed, it is clear that Publishers Distributing informed all of its more than 500 nationwide wholesale customers of Ms. Lerman's lawsuit and the outstanding injunction, and requested that all unsold copies of the magazine be returned. Chuckleberry nevertheless included in its June 1980 Adelina issue a subscription solicitation page that reprinted, in reduced size and among other reprinted Adelina covers, the May 1980 cover page that claimed to contain a photo of Jackie Collins "In the Nude from the Playmen archives." The identical solicitation page appeared six months later in the January 1981 issue of Adelina.

On March 17, 1980, shortly before the original lawsuit was commenced, but after the May issue of Adelina was already in the channels of distribution, Flynt Distributing Company (Flynt Distributing or FDC), the present appellant, purchased the contract to distribute Adelina from Publishers Distributing. Flynt Distributing was joined as a party defendant to this litigation in April 1981. Plaintiff sought the same relief against Flynt Distributing with respect to the June 1980 and January 1981 distribution of Adelina as she had sought against the original defendants for the May publication. In an amended complaint plaintiff asserted these same causes of action against Flynt Distributing for the May 1980 issue.

The district court granted plaintiff's motions for summary judgment against Chuckleberry Publishing, Publishers Distributing and Flynt Distributing for violations of New York's Civil Rights Law Secs. 50-51 and for defendant's invasion of plaintiff's right to publicity. Plaintiff's libel action against the defendants was dismissed. In February 1983 plaintiff settled with Publishers Distributing for $100,000. Chuckleberry is in Chapter 11 bankruptcy reorganization.

In June 1983, with both original defendants out of the case, plaintiff proceeded to trial before a jury against Flynt Distributing. Ms. Lerman sought damages under her New York statutory privacy claim and her common law right to publicity arising from the May 1980 publication. Inasmuch as liability had already been determined in her favor by the trial court's grant of summary judgment, she also sought damages for distribution of the June 1980 and January 1981 editions of Adelina. After a short trial the jury returned a special verdict determining that defendant Flynt Distributing was liable for the May 1980 issue and awarding Ms. Lerman a total of $7 million in compensatory and $33 million in exemplary damages. 1 The trial court struck $30 million from the exemplary damage award, leaving intact an award of $7 million compensatory and $3 million exemplary damages. It is from this $10 million judgment that defendant Flynt Distributing has appealed.

Since plaintiff has not cross-appealed, we need not consider whether the district court correctly dismissed plaintiff's libel claim on the ground that she failed to plead special damages. Discussion will focus primarily on two causes of action--New York's statutory action for violation of the right of privacy and the common law action for violation of the right to publicity. The parties agree that New York law governs in this diversity case.

II Grounds for Recovery Under State Law

  1. Background Leading to Enactment of New York's Right of Privacy Statute

    The traditional common law rein on media abuse was the libel action. But in 1890 Samuel Warren and Louis Brandeis announced

    Page 129

    their recognition of a developing right of privacy. See generally S. Warren and L. Brandeis, The Right of Privacy, 4 Harv.L.Rev. 193 (1890). The article was a direct response to perceived abuses by the mass media of the day:

    The press is overstepping in every direction the obvious bounds of propriety and of decency.... [M]odern enterprise and invention have, through invasions upon [man's] privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

    Id. at 196.

    Following the Warren-Brandeis article, courts were asked to recognize this "new" tort. The New York Court of Appeals rejected the invitation in Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902), where the picture of an attractive young woman, used without her permission, adorned more than 25,000 posters advertising the defendant's flour. Her suit for this invasion of her privacy was dismissed by New York's highest court. In 1903 the public outcry over this seemingly unfair decision resulted in the enactment by the New York State Legislature of sections 50 and 51 of the Civil Rights Law, entitled "Right of Privacy." Section 50 provides criminal penalties for the use of a person's name, picture or likeness for advertising or trade purposes (the only two cases ever brought under Sec. 50 were dismissed before trial), and Sec. 51 gives the individual victim of such use the right to obtain an injunction and a cause of action to obtain compensatory and exemplary damages:

    Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without [his] written consent ... may maintain an equitable action in the supreme...

To continue reading