Ali v. Playgirl, Inc.

• Citation: 447 F. Supp. 723
• Decision Date: 03 March 1978
• Docket Number: No. 78 Civ. 445.,78 Civ. 445.
• Parties: Muhammad ALI, Plaintiff, v. PLAYGIRL, INC., Tony Yamada and Independent News Company, Defendants.
• Court: U.S. District Court — Southern District of New York

447 F. Supp. 723

Muhammad ALI, Plaintiff, v. PLAYGIRL, INC., Tony Yamada and Independent News Company, Defendants.

No. 78 Civ. 445.

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

March 3, 1978.

Freeman, Meade, Wasserman & Schneider, New York City, for plaintiff; George Stiefel, New York City, of counsel.

Kramer, Lowenstein, Nessen, Kamin & Soll, New York City, for defendant Playgirl, Inc.; Geoffrey M. Kalmus, New York City, of counsel.

Weil, Gotshal & Manges, New York City, for defendant Independent News Co.; Michael D. Hess, New York City, of counsel.

OPINION

GAGLIARDI, District Judge.

Plaintiff Muhammad Ali, a citizen of Illinois and until recently the heavyweight boxing champion of the world,¹ has brought this diversity action for injunctive relief and damages against defendants Playgirl, Inc., a California corporation, Independent News Company ("Independent"), a New York corporation, and Tony Yamada, a California citizen, for their alleged unauthorized printing, publication and distribution of an objectionable portrait of Ali in the February, 1978 issue of Playgirl Magazine ("Playgirl"), a monthly magazine published by Playgirl, Inc., and distributed in New York State by Independent. The portrait complained of depicts a nude black man seated in the corner of a boxing ring and is claimed to be unmistakably recognizable as plaintiff Ali. Alleging that the publication of this picture constitutes, inter alia, a violation of his rights under Section 51 of the New York Civil Rights Law (McKinney 1976) and of his related common law "right of publicity", Ali now moves for a preliminary injunction pursuant to Rule 65, Fed.R. Civ.P., directing defendants Playgirl, Inc. and Independent² to cease distribution and dissemination of the February, 1978 issue of Playgirl Magazine, to withdraw that issue from circulation and recover possession of all copies presently offered for sale, and to surrender to plaintiff any printing plates or devices used to reproduce the portrait complained of. For the reasons which follow and to the extent indicated below, plaintiff's motion for a preliminary injunction is granted.³

THE FACTS

On January 31, 1978, plaintiff Ali commenced this action by order to show cause seeking a preliminary injunction and the issuance of a temporary restraining order pending the hearing on the preliminary injunction. Rule 65(b), Fed.R.Civ.P. The temporary restraining order was issued on January 31 and the matter was set for a hearing on February 2, 1978.

At the preliminary injunction hearing on February 2, counsel stated that the February issue of Playgirl containing the allegedly unlawful portrait of Ali was then scheduled to go "off sale", that is, to be removed from newsstand circulation on February 4. Defendant Independent, through counsel, represented to the court that it was scheduled to conduct the removal of the remaining issues on that date and that thereafter Independent would not be involved in any further distribution of the magazine (Tr. 8, 11).⁴ Satisfied with counsel's stipulation that Independent would consent to impound the returned copies of Playgirl until further court order, plaintiff agreed not to pursue its request for issuance of injunctive relief as against Independent (Tr. 12).

As to defendant Playgirl, Inc., however, the circumstances were substantially different. It contended, through counsel, that there would be no further domestic distribution of the issue containing the allegedly offensive picture (Tr. 7), but advised that it did intend to distribute the magazine in England (Tr. 7-8). Plaintiff therefore renewed his application for a preliminary injunction as to Playgirl, Inc., restraining any further publication or circulation of the disputed copies. In this regard all parties agree that the court, on the basis of the portrait and accompanying descriptive legend, is fully competent to decide the question of the issuance of a preliminary injunction without holding further evidentiary hearings.⁵

DISCUSSION

This court concludes that plaintiff has satisfied the standard established in this Circuit for determining whether a preliminary injunction should issue. Sonesta International Hotels v. Wellington Associates, 483 F.2d 247 (2d Cir. 1973).⁶ The familiar alternative test formula is that

"a preliminary injunction should issue only upon a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief."

Id. at 250 (emphasis in original). Accord, Jacobson & Co., Inc. v. Armstrong Cork Co., 548 F.2d 438 (2d Cir. 1977); Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356 (2d Cir. 1976). As set forth below, this court is satisfied that under either branch of the Sonesta test Ali is entitled to the preliminary relief he seeks.

Liability on the Merits

In determining the issues of probable success on the merits or sufficiently serious questions going to the merits of this action, it is agreed that this court must look to the substantive law of New York. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). To be considered are plaintiff's claims that his statutory "right of privacy" under § 51 of the New York Civil Rights Law and his common law "right of publicity" have been violated. (See footnote 3).

Section 51 of the New York Civil Rights Law provides in pertinent part:

Any person whose name, portrait or picture is used within this state for . . the purposes of trade without the written consent of that person may maintain an equitable action . . . against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injury sustained by reason of such use . . .

Defendants do not, and indeed cannot, seriously dispute the assertion that the offensive drawing is in fact Ali's "portrait or picture."⁷ This phrase, as used in § 51, is not restricted to photographs, Binns v. Vitagraph Co., 210 N.Y. 51, 57, 103 N.E. 1108 (1913), but generally comprises those representations which are recognizable as likenesses of the complaining individual. Negri v. Schering Corp., 333 F.Supp. 101, 104 (S.D.N.Y.1971). Even a cursory inspection of the picture which is the subject of this action strongly suggests that the facial characteristics of the black male portrayed are those of Muhammad Ali. The cheekbones, broad nose and wideset brown eyes, together with the distinctive smile and close cropped black hair are recognizable as the features of the plaintiff, one of the most widely known athletes of our time. In addition, the figure depicted is seated on a stool in the corner of a boxing ring with both hands taped and outstretched resting on the ropes on either side. Although the picture is captioned "Mystery Man," the identification of the individual as Ali is further implied by an accompanying verse which refers to the figure as "the Greatest". This court may take judicial notice that plaintiff Ali has regularly claimed that appellation for himself and that his efforts to identify himself in the public mind as "the Greatest" have been so successful that he is regularly identified as such in the news media.⁸

It is also clear that the picture has been used for the "purpose of trade" within the meaning of § 51. In this regard it is the established law of New York that the unauthorized use of an individual's picture is not for a "trade purpose", and thus not violative of § 51, if it is "in connection with an item of news or one that is newsworthy." Gautier v. Pro-Football, Inc., 304 N.Y. 354, 359, 107 N.E.2d 485, 488 (1952). Accord, Sidis v. F-R Pub. Corporation, 113 F.2d 806 (2d Cir.), cert. denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1940); Murray v. New York Magazine Co., 27 N.Y.2d 406, 318 N.Y.S.2d 474, 267 N.E.2d 256 (1971); Pagan v. New York Herald Tribune, 32 A.D.2d 341, 301 N.Y.S.2d 120 (1st Dept. 1969), aff'd, 26 N.Y.2d 941, 310 N.Y.S.2d 327, 258 N.E.2d 727 (1970); Lahiri v. Daily Mirror, 162 Misc. 776, 295 N.Y.S. 382 (Sup.Ct.N.Y.Co.1937). In the instant case there is no such informational or newsworthy dimension to defendants' unauthorized use of Ali's likeness. Instead, the picture is a dramatization, an illustration falling somewhere between representational art and cartoon, and is accompanied by a plainly fictional and allegedly libellous bit of doggerel. Defendants cannot be said to have presented "the unembroidered dissemination of facts" or "the unvarnished, unfictionalized truth," Sidis v. F-R Pub. Corporation, supra, 113 F.2d at 810. See Flores v. Mosler Safe Co., 7 N.Y.2d 276, 196 N.Y.S.2d 975, 164 N.E.2d 853 (1959); Groucho Marx Productions, Inc. v. Playboy Enterprises, Inc., No. 77-1782, (S.D.N.Y., filed Dec. 30, 1977), at 3-4; Lahiri v. Daily Mirror, supra. The nude portrait was clearly included in the magazine solely "for purposes of trade — e. g., merely to attract attention." Grant v. Esquire, Inc., 367 F.Supp. 876, 881 (S.D.N.Y. 1973).

Finally, defendants concede that Ali did not consent to the inclusion of his likeness in the February, 1978 Playgirl Magazine (Tr. 2). Defendants contend, however, that even if their use of Ali's likeness is determined to be unauthorized and for trade purposes within the meaning of § 51, the statutory right of privacy does not extend to protect "someone such as an athlete . . . who chooses to bring himself to public notice, who chooses, indeed, as clearly as the plaintiff here does to rather stridently seek out publicity" (Tr. 5). Defendants are plainly in error in disputing liability on the basis of Ali's status as a public personality. Such a contention

"confuses the fact that projection into the public arena may make for newsworthiness of one's activities, and all the

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