Colyer v. Richard K. Fox Pub. Co.

• Decision Date: 10 April 1914
• Parties: MAY COLYER, an Infant, by JOHANNA COLYER, Her Guardian ad Litem, Appellant, v. RICHARD K. FOX PUBLISHING COMPANY, Respondent.
• Court: New York Supreme Court

162 A.D. 297

146 N.Y.S. 999

MAY COLYER, an Infant, by JOHANNA COLYER, Her Guardian ad Litem, Appellant, v. RICHARD K. FOX PUBLISHING COMPANY, Respondent.

Supreme Court of New York, Second Department.

April 10, 1914

APPEAL by the plaintiff, May Colyer, an infant, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17th day of December, 1913, upon a dismissal of the complaint by direction of the court at the close of plaintiff's case and also from an order entered in said clerk's office on the 23d day of December, 1913, denying plaintiff's motion for a new trial made upon the minutes.

COUNSEL

Charles J. Belfer [Julius S. Belfer and Frank F. Davis with him on the brief], for the appellant.

Chauncey E. Treadwell [Louis J. Vorhaus with him on the brief], for the respondent.

CARR J.:

The plaintiff is a young woman, under legal age, who brings this action against the defendant, a corporation that publishes a weekly paper in the city of New York. For several years the plaintiff has been a professional entertainer in the specialty of 'high diving,' which is described in this record as diving from a height into a shallow tank of water. In this capacity she has appeared before the public in many places throughout this country as well as in Canada. While in Canada she had her photograph taken in costume appropriate to her public performances. A copy of this photograph came into the possession of the defendant. Without the written consent of the plaintiff, or her guardian or parents, the defendant published a reproduction of it in its publication known as The National Police Gazette, in a single issue of that paper bearing date January 18, 1913. Immediately below the picture appeared the words, 'May Collier, A Great Trick Diver.' On the same page appeared four other pictures of women vaudeville performers, attired in stage costumes. At the bottom of the page were the words: 'Five of a Kind on This Page. Most of Them Adorn the Burlesque Stage, All of Them are Favorites with the Bald Headed Boys.' On the claim that this single publication of her picture by the defendant was a violation of sections 50 and 51 of the Civil Rights Law (Consol. Laws, chap. 6 [Laws of 1909, chap. 14], as amd. by Laws of 1911, chap. 226), this action was brought to obtain an injunction against a further publication of the picture and for damages. The case came originally before the equity side of the court, but as there was no claim that the defendant threatened or intended to repeat the publication of the picture, the case was sent into the jury Trial Term for disposition as to damages, if the plaintiff should prove herself entitled thereto. At the Trial Term it was conceded that the plaintiff was a professional 'high diver,' that she herself had caused the original photograph to be taken, and that it was published by the defendant without the written consent provided by the statute. The complaint was dismissed at the close of her evidence, on the ground that she had not brought her grievance within the scope of the statute upon which she relied. For convenience sake, I will quote the pertinent sections of the statute, which read as follows:

'§ 50. Right of privacy. A person, firm or corporation that 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.

'§ 51. Action for injunction and for damages. 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 first obtained as above provided may maintain an equitable action in the Supreme Court of this State against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use, and if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by the last section, the

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