Alfano v. Nght, Inc.

• Decision Date: 11 June 2009
• Docket Number: No. 06 CV 3511(NG)(JO).,06 CV 3511(NG)(JO).
• Citation: 623 F.Supp.2d 355
• Parties: Robert ALFANO, Plaintiff, v. NGHT, INC., NGC Network U.S., LLC operating the National Geographic Channel (as a business enterprise of Fox Cable Networks, Inc.), and Corbis Corporation, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 355

623 F.Supp.2d 355

Robert ALFANO, Plaintiff, v. NGHT, INC., NGC Network U.S., LLC operating the National Geographic Channel (as a business enterprise of Fox Cable Networks, Inc.), and Corbis Corporation, Defendants.

No. 06 CV 3511(NG)(JO).

United States District Court, E.D. New York.

June 11, 2009.

Carol E. Owens, H. Todd Bullard, Harris Beach, PLLC, Pittsford, NY, H. Todd

Bullard, Louis Grandelli, PC, New York, NY, for Plaintiff.

Christopher Healy, John Hooper, Reed Smith LLP, New York, NY, Stephen M. Prignano, Edwards Angell Palmer & Dodge LLP, Providence, RI, for Defendants.

Carol F. Simkin, New York, NY, pro se.

OPINION AND ORDER

GERSHON, District Judge:

Plaintiff Robert Alfano brings this action against NGHT, Inc., NGC Network U.S., LLC, operating the National Geographic Channel ("NGC") as a business enterprise of Fox Cable Networks, Inc. (collectively, the "NGC Defendants"), and Corbis Corporation ("Corbis"), seeking injunctive relief and compensatory damages (from all defendants) and an accounting (from Corbis) under New York Civil Rights Law § 51. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, all defendants move for summary judgment on the first count and defendant Corbis, the sole defendant on the second count, moves for summary judgment on that count. Plaintiff moves for partial summary judgment on the issue of liability with respect to all defendants on the first count and as to Corbis on the second count.

FACTS

The material facts pertinent to the resolution of these motions are not in dispute. This case arises from plaintiff's encounter with the press outside the New York state courthouse where notorious mobster John Gotti was facing trial in 1991. Mr. Gotti's trial drew intense media scrutiny, and reporters and photographers sometimes thronged outside the courthouse at the end of the day. Plaintiff attended Mr. Gotti's trial on at least three occasions, believing it to be "very high profile" and the "trial of the decade." At the end of one of those days, plaintiff left the courthouse with an acquaintance, a clerk then working for Mr. Gotti's counsel. Mr. Gotti had just left the courthouse by the same exit, and plaintiff observed that a number of photographers were taking pictures.

According to plaintiff, Mr. Gotti asked plaintiff to "get [him] to [his] car". Plaintiff spotted one of Mr. Gotti's apparent associates waving him towards the car, "grabbed him [Gotti] and ... turned him around and just walked him to the car". Plaintiff gave Mr. Gotti this assistance voluntarily. As plaintiff walked Mr. Gotti to his car, Ed Quinn, a freelance photographer who is not a party to this suit, took a picture of the two of them, showing plaintiff grasping Mr. Gotti's arm (the "Image"). Mr. Quinn later consigned the Image to defendant Corbis for licensing.

On some unspecified date before June 2005, Corbis began to display the Image on its website to offer it for licensing. NGC then licensed the Image from Corbis for use in connection with its program Inside the Mafia. This documentary depicted the history of organized crime in America, including the several trials of Mr. Gotti. It apparently used recreations of events as well as actual footage, as the production did involve actors (identified as extras) and sets.

Plaintiff himself was never involved in the Mafia, and, in fact, no reference to plaintiff (not even the Image itself) actually appears in Inside the Mafia. However, on or about May 30, 2005, NGC installed phone kiosk posters in New York City advertising Inside the Mafia that incorporated the Image. NGC also included the Image in the Inside the Mafia press kit and in newspaper advertisements for the program. On or about June 2005, plaintiff learned from a family member that he appeared in the phone kiosk posters. Plaintiffs counsel communicated with the NGC Defendants, and the NGC Defendants agreed to cease all use of the Image. It appears, however, that Corbis continued to offer the Image for licensing to others for some time afterwards. Neither Corbis nor the NGC Defendants ever sought the consent of plaintiff for any use of the Image.

On May 30, 2006, plaintiff commenced this action in state court against the NGC Defendants and Wall-to-Wall Media, Ltd. The action was removed to federal court by the NGC Defendants on July 17, 2006. Plaintiff amended the complaint to add a second cause of action and add claims against defendant Corbis to the action on January 11, 2007. Plaintiff agreed to the dismissal of its claims against Wall-to-Wall Media, Ltd., and they were dismissed on February 20, 2007.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). A genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must construe the facts in the light most favorable to the nonmoving party, and all reasonable inferences and ambiguities must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). However, the non-moving party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), but "must come forward with specific facts showing that there is a genuine issue for trial," Matsushita, 475 U.S. at 586-8, 106 S.Ct. 1348 (emphasis removed).

II. Plaintiffs Claims Against the NGC Defendants

The NGC Defendants move for summary judgment on plaintiffs first count, arguing that Inside the Media is newsworthy and thus that their use of the Image in various advertising materials promoting the film is protected under the "incidental use" exception to New York Civil Rights Law § 51 for advertisements of newsworthy media.

Section 51, often called New York's "right of privacy" law,¹ prohibits certain "nonconsensual commercial appropriations of the name, portrait or picture of a living person." Finger v. Omni Publ'ns Int'l Ltd., 77 N.Y.2d 138, 141, 564 N.Y.S.2d 1014, 566 N.E.2d 141 (1990). It provides that "[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without . . . written consent" may seek damages or injunctive relief. N.Y. Civ. Rights Law § 51 (McKinney 2008). However, Section 51 (and its criminal counterpart, N.Y. Civ. Rights Law § 50) "were drafted narrowly to encompass only the commercial use of an individual's name or likeness and no more." Arrington v. New York Times Co., 55 N.Y.2d 433, 439, 449 N.Y.S.2d 941, 434 N.E.2d 1319 (1982). Mindful of its potential conflict with the First Amendment, courts have read Section 51 with "sensitivity to ... the values our State and Federal Constitutions bespeak in the area of free speech and free press." Arrington, 55 N.Y.2d at 440, 449 N.Y.S.2d 941, 434 N.E.2d 1319; see also Time, Inc., v. Hill, 385 U.S. 374, 382, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). In particular, they have held that "these sections [50 and 51] do not apply to reports of newsworthy events or matters of public interest". Messenger ex rel. Messenger v. Gruner + Jahr Printing and Publ'g, 94 N.Y.2d 436, 441, 706 N.Y.S.2d 52, 727 N.E.2d 549 (2000). And in this context, "`newsworthiness' is to be broadly construed." Id. However, in the rare case of an article purporting to be newsworthy but in fact "so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception," this exception will not apply. Id. at 446, 706 N.Y.S.2d 52, 727 N.E.2d 549.

Plaintiff's argument that Inside the Mafia is not newsworthy within the meaning of Messenger is unconvincing. The activities of organized crime in the United States have long been a matter of public interest, even fascination. Plaintiff himself admits that he considered Mr. Gotti's trial to be "very high profile" and "the trial of the decade". As newsworthiness is to be "broadly construed", id. at 441, 706 N.Y.S.2d 52, 727 N.E.2d 549, coverage of the trial of a major organized crime figure surely falls into that category.² In addition, although plaintiff characterizes Inside the Mafia as a "docudrama" which was not strictly historically accurate, with regard to the film (as opposed to its advertising, see below) he does not make allegations that amount to its being the kind of "substantially fictional" material which, despite claimed newsworthiness, is "... nothing more than [an attempt] to trade on the persona of [plaintiff]" that Messenger suggested might fall under the prohibitions of Section 51. 94 N.Y.2d at 446, 706 N.Y.S.2d 52, 727 N.E.2d 549. Inside the Media thus qualifies as "newsworthy" for the purposes of Section 51.

Turning to the question of advertising, a media publication with newsworthy content may use an individual's image in an advertisement that reproduces that content—for instance, the reproduction of a magazine cover depicting a famous actress in an advertisement for subscriptions to the magazine—without violating Section 51. Courts have reasoned that Section 51 must permit this kind of "incidental use" to allow a publication to "prove its worth and illustrate its content." Booth v. Curtis Publ'g Co., 15 A.D.2d 343, 349, 223 N.Y.S.2d 737 (1st Dep't 1962); Velez v. VV Publ'g Corp., 135 A.D.2d 47, 49-50, 524 N.Y.S.2d 186 (1st...