Binns v. Vitagraph Co. of America

• Citation: 103 N.E. 1108,210 N.Y. 51
• Parties: BINNS v. VITAGRAPH CO. OF AMERICA.
• Decision Date: 30 December 1913
• Court: New York Court of Appeals

210 N.Y. 51

103 N.E. 1108

BINNS

v.VITAGRAPH CO. OF AMERICA.

Court of Appeals of New York.

Dec. 30, 1913.

Appeal from Supreme Court, Special Term, New York County.

Action by John R. Binns against the Vitagraph Company of America. Judgment for plaintiff (147 App. Div. 783,132 N. Y. Supp. 237), and defendant appeals. Affirmed.

See, also, 67 Misc. Rep. 327,124 N. Y. Supp. 515; 140 App. Div. 925,125 N. Y. Supp. 786.

Appeal from a final judgment entered December 18, 1911, in an action for injunction and damages brought pursuant to sections 50 and 51 of the Civil Rights Law (Consol. Laws, c. 6). The appellant by its notice of appeal also brings up for review an interlocutory judgment entered at the New York Special Term April 19, 1910, granting an injunction herein, and directing that the plaintiff's damages be assessed by a jury, and from an order of the Appellate Division of the Supreme Court in the First judicial department entered November 25, 1910, affirming said interlocutory judgment; also from an order of the said Appellate Division, entered December 1, 1911, which reversed an order theretofore made at Special Term setting aside conditionally a verdict of a jury on the assessment of said damages and granting a new trial, and which order of the Appellate Division reinstated said verdict.

The defendant is a corporation engaged in the business of manufacturing, leasing, licensing, selling, distributing, displaying, and circulating photographic films for use in motion picture machines. On January 23, 1909, the steamships Republic and Florida came into collision at sea. The Republic was equipped with machines for sending and receiving messages by wireless telegraphy, and the plaintiff, a British subject, was the operator of said machine. Immediately following the collision, he sent a danger signal consisting of the letters ‘C. Q. D,’ which were received by a wireless operator on the steamship Baltic and by such an operator at Siasconset, on Nantucket island. Messages were thereafter exchanged between the plaintiff on the Republic and the operator on the Baltic and at Siasconset. The messages sent by the plaintiff resulted in the Baltic going to the rescue of the passengers on the other steamships, and the passengers and crew of the Republic were removed to the Baltic and transported to New York. The plaintiff was the first man to use wireless telegraphy at a time when its use resulted in saving hundreds of lives.

Soon after the day of the collision the defendant proceeded to makes a series of pictures entitled ‘C. Q. D. or Saved by Wireless; A. True Story of the Wreck of the Republic.’ These pictures, with the exception perhaps of one or more taken of the Baltic as it entered the harbor of New York, were manufactured or made up in the studio of the defendant, by the use of scenery prepared for the purpose and of actors employed to impersonate the plaintiff and others. A series of picture films were thus prepared from which moving pictures could be produced for public exhibition. Such pictures were exhibited in many places in this state by authority of the defendant. The series of pictures commenced with a subseries entitled ‘John R. Binns the Wireless Operator in his Cabin Aboard the S. S. Republic.’ This subseries was followed by others, the last one of the series being entitled ‘Jack Binns and his Good American Smile.’ The picture of Binns appeared in the series five times and his name was used in the subtitles six or more times. This action is brought to enjoin the use of the plaintiff's picture and name and to recover damages for the injuries received by him by reason of such use. It is not claimed that the plaintiff ever consented in writing or otherwise to the use of his picture and name. Further facts appear in the opinion.Edgar T. Brackett, of Saratoga Springs, for appellant.

Arthur F. Hansl, of New York City, for respondent.

CHASE, J. (after stating the facts as above).

[1] The Special Term found that the defendant used the plaintiff's name and picture for the purposes of trade and advertising. It is asserted that the defendant, by the way it used the plaintiff's name and picture, held him up to the public ridicule and contempt. In determining whether this action can be maintained, it is immaterial whether the defendant's use of the plaintiff's name and picture held him up to public ridicule and contempt, because the action is not brought for a libel. If the use made of the plaintiff's name and picture constituted a libel, it would be punishable as provided by the Penal Code, §§ 1340-1352 (Penal Law [Consol. Laws c. 40]), and damages could be recovered therefor at common law. This action is brought pursuant to the Civil Rights Law (Consol. Laws, c. 6) §§ 50, 51, and it cannot be maintained unless it is authorized by its provisions.

Section 50 of said law provides: ‘A person, firm or corporationthat uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.’

Section 51 of said law provides that any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade, without the written consent of such person first obtained, may maintain an equitable action to prevent and restrain the use thereof and to recover damages by reason of such unlawful use.

Prior to the passage of chapter 132 of the Laws of 1903, the exact provisions of which are now contained in said sections of the Civil Rights Law, it was definitely determined in this state that the right of privacy as a legal doctrine enforceable in equity did not exist to prevent the use of a portrait for advertising purposes. Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828. The statute now recognizes and enforces the right of a person to control the use of his name or portrait by others so far as advertising or trade purposes are concerned. This right of control in the person whose name or picture is sought to be used for such purposes is not limited by statute. Rhodes v. Sperry & Hutchinson Co., 193 N. Y. 223, 85 N. E. 1097. Was the plaintiff's name and picture used by the defendant for advertising purposes, or for the purposes of trade?

[2] The statute is very general in its terms, but, when a living person's name, portrait, or picture is used, it is not necessarily and at all times so used either for advertising purposes or for the purposes of trade. The statute is in part, at least, penal, and should be construed accordingly. So construed, and also construed in connection with the history of chapter 132, Laws of 1903, which was enacted at the first...