Ann-Margret v. High Soc. Magazine, Inc., 80 Civ. 27 (GLG).

• Decision Date: 27 August 1980
• Docket Number: No. 80 Civ. 27 (GLG).,80 Civ. 27 (GLG).
• Citation: 498 F. Supp. 401
• Parties: ANN-MARGRET, Plaintiff, v. HIGH SOCIETY MAGAZINE, INC. and Dorjam Publications, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

498 F. Supp. 401

ANN-MARGRET, Plaintiff, v. HIGH SOCIETY MAGAZINE, INC. and Dorjam Publications, Inc., Defendants.

No. 80 Civ. 27 (GLG).

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

August 27, 1980.

COPYRIGHT MATERIAL OMITTED

Weil, Gotshal & Manges, New York City, for plaintiff by Robert G. Sugarman, Dwight Yellen, New York City, of counsel.

Ladas & Parry, New York City, for defendants by Robert Alpert, Lawrence E. Abelman, Barry M. Krivisky, New York City, of counsel.

OPINION

GOETTEL, District Judge:

The actress Ann-Margret is a woman of beauty, talent, and courage.¹ It would appear, from her reaction to her inclusion in the defendants' magazine, that she is also a woman of taste.

In 1978 the plaintiff appeared in the motion picture "Magic," a film in which, for only the second time in her screen career, she appeared in one scene unclothed from the waist up.² She states that the decision to disrobe was an "artistic" one, made in light of the script necessities. This film, which was apparently highly successful, was widely distributed and was viewed by millions of persons, both in motion picture theatres and at home on various cable television broadcasts.

The defendants, High Society Magazine, Inc. and Dorjam Publications, Inc., publish a magazine called High Society Celebrity Skin ("Celebrity Skin"), which specializes in printing photographs of well-known women caught in the most revealing situations and positions that the defendants are able to obtain. In view of such content, the plaintiff has attempted to characterize Celebrity Skin as hard core pornography. That description, however, by contemporary standards, appears inappropriate.³ A more apt description would be simply "tacky."

Defendants' first edition of Celebrity Skin, pretentiously subtitled "Special Collector's Edition No. 1," has on its cover a picture of a reasonably well-clothed Ann-Margret. Thereafter, starting on page twenty-five of the magazine, there are five pages devoted exclusively to the plaintiff, four of which are completely photographic, while the fifth is made up of about half a page of rambling text and one photograph. The picture by which the plaintiff is particularly offended, taken from the movie "Magic," is on page twenty-nine. In this photograph, one of her breasts is quite visible.⁴ Not having consented to the use of her photographs by the defendants, and, in fact, violently objecting to their inclusion in such a format, the plaintiff has now brought suit, claiming violation of her right of privacy and "right of publicity."⁵ The defendants, in turn, have moved for summary judgment.

The plaintiff's claim rests primarily on section 51 of the New York Civil Rights Law, which provides a cause of action for injunctive relief and damages where a person's name, portrait, or picture is used, without that person's consent, for advertising purposes, or for purposes of trade. This provision, which, if read literally, would provide an extremely broad cause of action applicable to virtually all uses of a person's name or picture, including use by the news media, has been narrowly construed by the courts, especially in the context of persons denominated "public figures," so as "to avoid any conflict with the free dissemination of thoughts, ideas, news-worthy events, and matters of public interest" guaranteed by the First Amendment. Time, Inc. v. Hill, 385 U.S. 374, 382, 87 S.Ct. 534, 539, 17 L.Ed.2d 456 (1967) (quoting Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 328, 221 N.E.2d 543, 544-45, 274 N.Y. S.2d 877, 879 (1966)). Thus, as has been noted by the New York courts, "freedom of speech and the press under the First Amendment transcends the right to privacy." Namath v. Sports Illustrated, 80 Misc.2d 531, 535, 363 N.Y.S.2d 276, 280 (N.Y.Co.1975), aff'd, 48 A.D.2d 487, 371 N.Y.S.2d 10 (1st Dep't 1975), aff'd mem., 39 N.Y.2d 897, 352 N.E.2d 584, 386 N.Y.S.2d 397 (1976). See Rand v. Hearst Corp., 31 A.D.2d 406, 298 N.Y.S.2d 405 (1969).

There is little doubt that the plaintiff, who has starred in numerous movies and television programs over the last decade or so, is, as the term has come to be understood, a "public figure." See, e. g., Sidis v. F-R Publishing Corp., 113 F.2d 806 (2d Cir. 1940); Gautier v. Pro-Football, 304 N.Y. 354, 107 N.E.2d 485 (1952); Namath v. Sports Illustrated, supra; Paulsen v. Personality Posters, Inc., 59 Misc.2d 444, 299 N.Y.S.2d 501 (N.Y.Co. 1968); Rosemont Enterprises, Inc. v. Random House, Inc., 58 Misc.2d 1, 294 N.Y.S.2d 122 (N.Y.Co.1968). It is clear that a public figure does not, simply by virtue of his or her notoriety, lose all rights to privacy, see Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973) (daily harassment of Jacqueline Onassis and her family by self-styled "paparazzo" held to be an unwarranted intrusion); Ali v. Playgirl, Inc., 447 F.Supp. 723 (S.D.N.Y.1978) (unauthorized drawing of the former champion portrayed in the nude, "accompanied by a plainly fictional and allegedly libellous bit of doggerel," id. at 727, held to be a violation of plaintiff's right of privacy).⁶ Nevertheless, such rights can be severely circumscribed as a result of an individual's newsworthiness. As noted in Goelet v. Confidential, Inc., 5 A.D.2d 226, 228, 171 N.Y.S.2d 223, 225 (1st Dep't 1958), "once a person has sought publicity he cannot at his whim withdraw the events of his life from public scrutiny." See Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 244 N.E.2d 250, 296 N.Y.S.2d 771 (1968). As a result, the use of a person's name or picture in the context of an event within the "orbit of public interest and scrutiny," Meeropol v. Nizer, 560 F.2d 1061, 1066 (2d Cir. 1977), a category into which most of the events involving a public figure (especially of the plaintiff's stature) fall, can rarely form the basis for an actionable claim under section 51.

The plaintiff in the instant action chose to appear partially nude during one scene in a major motion picture which she knew was to be widely distributed. Upon release, that film, which was highly successful, was seen by millions of persons.⁷ It has been held that when an individual consents to be viewed in a certain manner during the course of a public performance, such as in a movie, it cannot then be argued that a subsequent faithful reproduction (no allegation has been made that the picture has been altered) of that appearance constitutes an invasion of privacy. See Gautier v. Pro-Football, supra; Sherwood v. McGowan, 3 Misc.2d 234, 152 N.Y.S.2d 658 (N.Y.Co. 1956). See also Murray v. New York Magazine Co., 27 N.Y.2d 406, 267 N.E.2d 256, 318 N.Y.S.2d 474 (1971). As noted in Sherwood v. McGowan, supra, "having consented to the exhibition there is no invasion of privacy because not shown to the audience contracted for." 3 Misc.2d at 235, 152 N.Y.S.2d at 659. See also Faucheux v. Magazine Management, 5 Med.L.Rptr. 1697 (E.D.La. 1979); Man v. Warner Bros., Inc., 317 F.Supp. 50 (S.D.N.Y.1970).

Moreover, the fact that the plaintiff, a woman who has occupied the fantasies of many moviegoers over the years, chose to perform unclad in one of her films is a matter of great interest to many people. And while such an event may not appear overly important, the scope of what constitutes a newsworthy event has been afforded a broad definition and held to include even matters of "entertainment and amusement, concerning interesting phases of human activity in general."⁸ Paulsen v. Personality Posters, Inc., supra, 59 Misc.2d at 448, 299 N.Y.S.2d at 506. See Sidis v. F-R Publishing Corp., supra, 113 F.2d at 809. As has been noted, it is not for the courts to decide what matters are of interest to the general public. See Goelet v. Confidential, Inc., supra, 5 A.D.2d at 229-30, 171 N.Y.S.2d at 226.⁹

Undoubtedly, the plaintiff is unhappy about the appearance of her picture in the defendants' magazine. And while the Court can sympathize with her feelings, the fact that she does not like either the manner in which she is portrayed, see University of Notre Dame Du Lac v. Twentieth Century-Fox Film Corp., 22 A.D.2d 452, 256 N.Y.S.2d 301 (1st Dep't 1965), aff'd, 15 N.Y.2d 940, 259 N.Y.S.2d 832, 207 N.E.2d 508 (1965), or the medium in which her picture is reproduced, see Goelet v. Confidential, Inc., supra, and her belief that such reproduction has caused her embarrassment, see Faucheux v. Magazine Management, supra; Neff v. Time, Inc., 406 F.Supp. 858 (W.D.Pa.1976); Arrington v. New York Times, 5 Med.L.Rptr. 2581 (Sup. Ct.N.Y.Co.1980), do not expand her rights or create any cause of action under section 51 of the Civil Rights Law. Where, as in the instant action, there has been a public performance,¹⁰ especially by a public figure, reproduction of that performance in the manner in which it was reproduced here does not give rise to a cause of action under section 51.¹¹

Plaintiff's claim fares no better when considered as one for violation of the common law "right to publicity." As has been noted, to the extent that a right to publicity exists at all under New York law, "it does not invest a prominent person with the right to exploit financially every public use of name or picture." Paulsen v. Personality Posters, Inc., supra, 59 Misc.2d at 450, 299 N.Y.S.2d at 508. See Rosemont Enterprises, Inc. v. Random House, Inc., supra. It is only when such use is made "for advertising purposes, or for the purposes of trade," Pagan v. New York Herald Tribune, Inc., 32 A.D.2d 341, 342, 301 N.Y. S.2d 120, 122 (1st Dep't 1969), that a cause of action arises. And it is well established that simple use in a magazine that is published and sold for profit does not constitute a use for advertising or trade sufficient to make out an actionable claim, even if its "manner of use and placement was designed to sell the article so that it might be paid for and read." Oma v. Hillman Periodicals, Inc., 281 A.D. 240, 244, 118 N.Y.S.2d 720, 724 (1st Dep't 1953). See Molony v. Boy Comics...