Arrington v. New York Times Co.

• Decision Date: 07 April 1982
• Parties: , 434 N.E.2d 1319, 8 Media L. Rep. 1351 Clarence W. ARRINGTON, Appellant, v. The NEW YORK TIMES COMPANY et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 941

449 N.Y.S.2d 941

55 N.Y.2d 433, 434 N.E.2d 1319, 8

Media L. Rep. 1351

Clarence W. ARRINGTON, Appellant, v. The NEW YORK TIMES COMPANY et al., Respondents.

Court of Appeals of New York.

April 7, 1982.

Herve Gouraige, Donald J. Zoeller, John J. Kirby, Jr., and Douglas M. Parker, New York City, for appellant

Floyd Abrams, Dean Ringel, Howard G. Sloane, Richard Coll, Katherine P. Darrow and George Freeman, New York City, for New York Times Co., respondent.

Tennyson Schad, New York City, for Contact Press Images, Inc., and others, respondents.

OPINION OF THE COURT

FUCHSBERG, Judge.

This action, for money damages and injunctive relief, arises from the New York Times Magazine's nonconsensual publication of plaintiff Clarence W. Arrington's photograph as the most prominent illustration of a feature article entitled "The Black Middle Class: Making It". The magazine, a part of the Sunday edition of The New York Times, is circulated widely throughout city, State, and Nation, and elsewhere. The picture, apparently taken while Arrington was walking along a street in New York City, was prominently displayed across the cover of the publication. Arrington, whose name was not mentioned in the article, had no prior knowledge that the photograph had been taken, much less that it would be sold or published or that it would be used in connection with this or any other article. These facts are unquestioned.

Defendant The New York Times Company (hereinafter the Times), which published the article, in its brief describes it as a commentary on "the role of the expanding black middle/professional class in today's society", in the course of which, among other things, its author concludes that "this group has been growing more removed from its less fortunate brethren." Arrington, a young financial analyst, who then plied his profession with General Motors and now pursues it with the Ford Foundation, regards the text of the article not only as controversial but as one expressive of views he does not credit or practice. Moreover, as he alleges in this action, he and readers who knew him found it "insulting, degrading, distorting and disparaging" not only of black persons of "middle class" status generally but also of himself, as its supposed exemplar, in particular. This, he goes on, subjected him to public scorn and ridicule, principally either because others quite reasonably took the article's ideas to be ones he shared or because it was assumed that he at least in part had changed his vocation to that of professional model.

Plaintiff's complaint, sounding in tort, was predicated on three theories: violation of sections 50 and 51 of New York's Civil Rights Law, ¹ invasion of common-law right of privacy and a similar imposition on a constitutional right to privacy. Other than the publisher, joined as defendants were Gianfranco Gorgoni, a free-lance photographer who took the picture at the behest of the Times, Contact Press Images, Inc., the photographic agency which allegedly handled the financial arrangements under which Gorgoni did so and Robert Pledge, Contact's president. In due course, all four defendants moved under CPLR 3211 (subd. par. ) to dismiss the complaint for failure to state a cause of action.

Special Term was of the view that sections 50 and 51 will not support a charge of "actionable commercial exploitation where the picture is published in connection with an article of general interest". On that premise, plus the additional rationale that in the end it was the Times alone and not its three codefendants who were "responsible for the publication of the picture", it dismissed against all the defendants. Nevertheless, in obeisance to what it sensed was an emerging "right to be let alone, sometimes referred to as constitutional right of privacy", it granted plaintiff leave to serve an amended complaint against the Times on grounds other than those spelled out by sections 50 and 51.

On cross appeals by Arrington and the Times, the Appellate Division, 78 A.D.2d 839, 433 N.Y.S.2d 164, finding no decisional support for the existence of a common-law right of privacy and that the circumstances here do not come within the orbit of any constitutional protection, modified on the law by deleting the leave to amend; Justice Kupferman, in a sole partial dissent, relying on Prosser on Torts (4th ed., pp. 812-813), thought Arrington had spelled out a cause of action for having been placed in a "false light in the public eye". On the present appeal, though, contrary to the holdings below, we believe the case should proceed against the individual defendants, we are of the view that the result reached as to the Times was correct.

Our analysis may well begin with sections 50 and 51. Facially, these statutes simply ban the use "for advertising purposes, or for the purposes of trade" of the name, portrait or picture of a living person unless that person's written consent has first been obtained. Yet, in light of the decisional event which led directly to their adoption, what their seemingly uncomplicated texts affirmatively provide must be said to have been overshadowed by what these do not say.

The statutory scheme was enacted as a direct response to Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442. In this oft-cited case, some 25,000 reproductions of a photograph of the infant plaintiff were distributed throughout the country without her knowledge or consent in order to advertise defendant's flour. Most significantly, in sustaining a demurrer to so much of the complaint as was framed in terms of a violation of an alleged right to privacy, the court broadly denied the existence of such a cause of action under New York common law. It is noteworthy, therefore, that, while concern engendered by this decision prompted the Legislature to enact sections 50 and 51, these were drafted narrowly to encompass only the commercial use of an individual's name or likeness and no more. Put another way, the Legislature confined its measured departure from existing case law to circumstances akin to those presented in Roberson. In no other respect did it undertake to roll back the court-pronounced refusal to countenance an action for invasion of privacy.

Nor has the Legislature chosen to enlarge the scope of sections 50 and 51 in the fourscore years since Roberson was handed down. This despite the court's consistent adherence to its position that, as such, in this State "there exists no so-called common-law right to privacy" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 497, n.2, 410 N.Y.S.2d 282, 382 N.E.2d 1145; see, also, Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 403 N.Y.S.2d 218, 374 N.E.2d 129; Gautier v. Pro-Football, Inc., 304 N.Y. 354, 358, 107 N.E.2d 485).

Moreover, this narrow reading of the statutory provisions has not been without sensitivity to the potentially competing nature of the values the Legislature, on the one hand, served by protecting against the invasion of privacy for purposes of "advertising" or "trade" and, on the other, the values our State and Federal Constitutions bespeak in the area of free speech and free press. Thus, we not too long ago reiterated that " 'picture illustrating an article on a matter of public interest is not considered used for the purposes of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise' " (Murray v. New York Mag. Co., 27 N.Y.2d 406, 409, 318 N.Y.S.2d 474, 267 N.E.2d 256 quoting from Dallesandro v. Holt & Co., 4 A.D.2d 470, 471, 166 N.Y.S.2d 805, app. dsmd. 7 N.Y.2d 735, 193 N.Y.S.2d 635, 162 N.E.2d 726). And this holds true though the dissemination of news and views is carried on for a profit or that illustrations are added for the very purpose of encouraging sales of the publications (see Pagan v. New York Herald Tribune, 26 N.Y.2d 941, 310 N.Y.S.2d 327, 258 N.E.2d 727, affg. 32 A.D.2d 341, 343, 301 N.Y.S.2d 120; Callas v. Whisper, Inc., 198 Misc. 829, 101 N.Y.S.2d 532, affd. 278 App.Div. 974, 105 N.Y.S.2d 1001, affd. 303 N.Y. 759, 103 N.E.2d 543; Oma v. Hillman Periodicals, 281 App.Div. 240, 244, 118 N.Y.S.2d 720; Paulsen v. Personality Posters, 59 Misc.2d 444, 447-448, 299 N.Y.S.2d 501 Lahiri v. Daily Mirror, 162 Misc. 776, 295 N.Y.S. 382 ).

Now it can hardly be questioned that the article in this case, dealing as it does with the circumstances and tensions incident to yet another example of the mobility our country prides itself on encouraging within and among our societal groups, relates to a subject of "public interest", clearly a term to be freely defined (see Lahiri v. Daily Mirror, supra, at p. 782, 295 N.Y.S. 382). Accepting that proposition, plaintiff nevertheless seeks to bring himself within the "no real relationship" exception referred to in our Murray decision. To this end, he does not deny that, by external and objective criteria, such as race, educational background, professional status, personal poise and habit of dress, he may be perceived to be a member of "the black middle class". Indeed, he does not dispute that the picture used by the Times portrays no more than what one might expect an upper or "middle class" man of good taste and attire, whatever the color of his skin, to look like.

Plaintiff's emphasis, rather, is on the fact that, as he reads it, the article depicts the "black middle class" as one peopled by "materialistic, status-conscious and frivolous individuals without any sense of moral obligation to those of their race who are economically less fortunate", a conception of the "class" with which he disclaims any "legitimate connection". ² While the concededly innocuous title of the article is superimposed over part of the picture (as is the title of...