Callas v. Whisper, Inc.
| Decision Date | 06 November 1950 |
| Citation | 198 Misc. 829 |
| Court | New York Supreme Court |
| Parties | Elizabeth Callas, an Infant, by Her Guardian ad Litem, Paul Callas, Plaintiff,<BR>v.<BR>Whisper, Inc., et al., Defendants. |
Becker, Ross & Stone for defendants.
Kupfer & Levine for plaintiff.
Defendants move under subdivision 5 of rule 106 of the Rules of Civil Practice to dismiss the complaint for legal insufficiency.
The complaint alleges that defendant Harrison owned and published a group of magazines, one of which is called "Whisper" whose "articles, captions, sub-captions, photographs and contents sensationalized sexual diversion, sexual abnormalities, and lurid articles and photographs". The complaint further alleges that the defendant corporations and individuals had associated interests in such publication. It is asserted that these defendants conspired to induce the plaintiff, then eighteen years old, who was employed by one of them, to participate in a picture on the assurance that such picture was to be made "solely for the purpose of posing one Gene Haver and that said photograph or others or reproductions thereof of the infant plaintiff would not be used or published in any of their magazines or publications or elsewhere." These representations, it is alleged, were knowingly false and were made for the purpose of using plaintiff's photograph in the publication of the defendants without her consent and against her will and "for profit and commercial" advantage to the defendants which they derived therefrom. The complaint then indicates that the picture, a copy of which is annexed to and made part thereof, and the printed caption thereon as it appeared in the magazine were given wide circulation and were intended to and do portray to readers of the magazine the fact that the infant plaintiff was in a night club with a male companion and that she smoked and drank intoxicating beverages, which facts were untrue and were known by these defendants to be untrue.
The article complained of consists of photographs of a former pugilist who has achieved fame as a female impersonator. In some of the photographs this impersonator is shown in his fighting pose and attire; in others, he appears in female dress. In one, he is depicted in a night club where he is employed, and in the background and seated at the table at which he is standing are a man and a woman. The woman is the plaintiff in this action. In addition to the plaintiff, approximately five other persons are used as background material to provide the setting for this and other pictures on the page in the presentation of the story of this pugilist-female impersonator.
The statute (Civil Rights Law, §§ 50, 51) prohibits the use of a photograph "for advertising purposes, or for the purposes of trade". When the portrait or picture of a living person is used, it is not necessarily used for either purpose. The statute does not prohibit every use of the name, portrait or picture of a living person. (See Binns v. Vitagraph Co., 210 N.Y. 51, 55-56.)
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Russell v. Marboro Books
...prohibition against the invasion of privacy for advertising purposes without the required consent. (Cf. Callas v. Whisper, Inc., 198 Misc. 829, 831, 101 N.Y.S.2d 532, 534, affirmed 278 App.Div. 974, 105 N.Y.S.2d 1001, affirmed 303 N.Y. 759, 103 N.E.2d 543.) The causes numbered 'Eighth' thro......
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...Film Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752; Lahiri v. Daily Mirror Inc., 162 Misc. 776, 295 N.Y.S. 382; Callas v. Whisper, Inc., 198 Misc. 829, 101 N.Y.S.2d 532, aff'd 278 App.Div. 974, 105 N.Y.S.2d 1001, aff'd 303 N.Y. 759, 103 N.E.2d 543; Booth v. Curtis Publishing Co., 15 A.D.2d 343......
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...and informative in character, it should be the result of a clear expression of legislative policy.' See also Callas v. Whisper, Inc., 198 Misc. 829, 101 N.Y.S.2d 532, affirmed 278 App.Div. 974, 105 N.Y.S.2d 1001, affirmed 303 N.Y. 759, 103 N.E.2d 543; Koussevitzky v. Allen, Towne & Heath, 1......
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