Burton v. Crowell Pub. Co., No. 258.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtL. HAND, SWAN, and CHASE, Circuit
Citation82 F.2d 154
PartiesBURTON v. CROWELL PUB. CO.
Decision Date10 February 1936
Docket NumberNo. 258.

82 F.2d 154 (1936)

BURTON
v.
CROWELL PUB.
CO.

No. 258.

Circuit Court of Appeals, Second Circuit.

February 10, 1936.


Joseph R. Truesdale, of New York City (Parker Bailey and Murray C. Bernays, both of New York City, of counsel), for appellant.

White & Case, of New York City (David Paine and Thomas Kiernan, both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

This appeal arises upon a judgment dismissing a complaint for libel upon the pleadings. The complaint alleged that the defendant had published an advertisement — annexed and incorporated by reference — made up of text and photographs; that one of the photographs was "susceptible of being regarded as representing plaintiff as guilty of indecent exposure and as being a person physically deformed and mentally perverted"; that some of the text, read with the offending photograph, was "susceptible of being regarded as falsely representing plaintiff as an utterer of salacious and obscene language"; and finally that "by reason of the premises plaintiff has been subjected to frequent and conspicuous ridicule, scandal, reproach, scorn, and indignity." The advertisement was of "Camel" cigarettes; the plaintiff was a widely known gentleman steeple-chaser, and the text quoted him as declaring that "Camel" cigarettes "restored" him after "a crowded business day." Two photographs were inserted; the larger, a picture of the plaintiff in riding shirt and breeches, seated apparently outside a paddock with a cigarette in one hand and a cap and whip in the other. This contained the legend, "Get a lift with a Camel"; neither it, nor the photograph, is charged as part of the libel, except as the legend may be read upon the other and offending photograph. That represented him coming from a race to be weighed in; he is carrying his saddle in front of him with his right hand under the pommel and his left under the cantle; the line of the seat is about twelve inches below his waist. Over the pommel hangs a stirrup; over the seat at his middle a white girth falls loosely in such a way that it seems to be attached to the plaintiff and not to the saddle. So regarded, the photograph becomes grotesque, monstrous, and obscene; and the legends, which without undue violence can be made to match, reinforce the ribald interpretation. That is the libel. The answer alleged that the plaintiff had posed for the photographs and been paid for their use as an advertisement; a reply, that they had never been shown to the plaintiff after they were taken. On this showing the judge held that the advertisement did not hold the plaintiff up to the hatred, ridicule, or contempt of fair-minded people,

82 F.2d 155
and that in any event he consented to its use and might not complain

We dismiss at once so much of the complaint as alleged that the advertisement might be read to say that the plaintiff was deformed, or that he had indecently exposed himself, or was making obscene jokes by means of the legends. Nobody could be fatuous enough to believe any of these things; everybody would at once see that it was the camera, and the camera alone, that had made the unfortunate mistake. If the advertisement is a libel, it is such in spite of the fact that it asserts nothing whatever about the plaintiff, even by the remotest implications. It does not profess to depict him as he is; it does not exaggerate any part of his person so as to suggest that he is deformed; it is patently an optical illusion, and carries its correction on its face as much as though it were a verbal utterance which expressly declared that it was false. It would be hard for words so guarded to carry any sting, but the same is not true of caricatures, and this is an example; for, notwithstanding all we have just said, it exposed...

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25 practice notes
  • Flake v. Greensboro News Co, No. 744.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 2 Febrero 1938
    ...Arbuckle. That and accompanying comments were such as to make the article libelous per se. In Burton v. Crowell Publishing Co., 2 Cir., 82 F.2d 154, 155, stressfully relied upon by the plaintiff, the picture of the plaintiff in that case was so caricatured as to expose the plaintiff to over......
  • People for Ethical Treatment of Animal v. Giuliani, No. 00 Civ. 3972(VM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 25 Julio 2000
    ...no less objectionable or inappropriate because the means chosen to convey it may be a form of art. See Burton v. Crowell Publishing Co., 82 F.2d 154, 155 (2d Cir.1936) (L. Hand, J.) (noting that pictures and drawings may be as libelous as the written word). Proven, a libel is as much a libe......
  • Crump v. Beckley Newspapers, Inc., No. 15804
    • United States
    • Supreme Court of West Virginia
    • 10 Noviembre 1983
    ...by written communication, it also includes defamation through the publication of pictures or photographs. See Burton v. Crowell Pub. Co., 82 F.2d 154 (2d Cir.1936); Thayer v. Worcester Post Co., 284 Mass. 160, 187 N.E. 292 (1933); Dunlop v. Dunlop Rubber Co., 1 Ir.Rep. 280 (1920); Pavesich ......
  • Kamelgard v. Macura, No. 08-4254.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 23 Octubre 2009
    ...of others, as the feelings, that is, the repulsion or the light esteem, which those opinions engender." Burton v. Crowell Publishing Co., 82 F.2d 154, 156 (2d Cir.1936) (L.Hand, The Restatement, while stating that in a defamation case "the state of most significant relationship will usually......
  • Request a trial to view additional results
25 cases
  • Flake v. Greensboro News Co, No. 744.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 2 Febrero 1938
    ...Arbuckle. That and accompanying comments were such as to make the article libelous per se. In Burton v. Crowell Publishing Co., 2 Cir., 82 F.2d 154, 155, stressfully relied upon by the plaintiff, the picture of the plaintiff in that case was so caricatured as to expose the plaintiff to over......
  • People for Ethical Treatment of Animal v. Giuliani, No. 00 Civ. 3972(VM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 25 Julio 2000
    ...no less objectionable or inappropriate because the means chosen to convey it may be a form of art. See Burton v. Crowell Publishing Co., 82 F.2d 154, 155 (2d Cir.1936) (L. Hand, J.) (noting that pictures and drawings may be as libelous as the written word). Proven, a libel is as much a libe......
  • Crump v. Beckley Newspapers, Inc., No. 15804
    • United States
    • Supreme Court of West Virginia
    • 10 Noviembre 1983
    ...by written communication, it also includes defamation through the publication of pictures or photographs. See Burton v. Crowell Pub. Co., 82 F.2d 154 (2d Cir.1936); Thayer v. Worcester Post Co., 284 Mass. 160, 187 N.E. 292 (1933); Dunlop v. Dunlop Rubber Co., 1 Ir.Rep. 280 (1920); Pavesich ......
  • Kamelgard v. Macura, No. 08-4254.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 23 Octubre 2009
    ...of others, as the feelings, that is, the repulsion or the light esteem, which those opinions engender." Burton v. Crowell Publishing Co., 82 F.2d 154, 156 (2d Cir.1936) (L.Hand, The Restatement, while stating that in a defamation case "the state of most significant relationship will usually......
  • Request a trial to view additional results

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