Goelet v. Confidential, Inc.

• Decision Date: 11 March 1958
• Citation: 5 A.D.2d 226,171 N.Y.S.2d 223
• Parties: Robert GOELET, Jr. and Gloria Goelet, Plaintiffs-Respondents, v. CONFIDENTIAL, Inc. and Robert Harrison, Defendants-Appellants, and Hewitt Van Horn, 'John Doe' and 'Peter Poe' said two names last mentioned being fictitious, the true names being unknown to the plaintiffs, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 223

171 N.Y.S.2d 223

5 A.D.2d 226

Robert GOELET, Jr. and Gloria Goelet, Plaintiffs-Respondents, v. CONFIDENTIAL, Inc. and Robert Harrison Defendants-Appellants, and Hewitt Van Horn, 'John Doe' and 'Peter Poe' said two names last mentioned being fictitious the true names being unknown to the plaintiffs, Defendants.

Supreme Court, Appellate Division, First Department.

March 11, 1958.

Albert A. De Stefano, New York City, of counsel (Bernard Schachine, New York City, on the brief; Becker, Ross & Stone, New York City, attorneys), for appellants.

Irving I. Erdheim, New York City, of counsel (Martin Kaufman, New York City, on the brief; Erdheim & Armstrong, New York City, attorneys), for respondents.

Before BOTEIN, P. J., and BREITEL, FRANK, VALENTE, and McNALLY, JJ.

VALENTE, Justice.

Section 51, Civil Rights Law, gives a right of action for damages to a 'person whose name, portrait or picture is used within this state * * * for the purposes of trade without the written consent first obtained.' Special Term has sustained the sufficiency of the complaint herein as stating causes of action on behalf of both plaintiffs under Section 51. We have reached a contrary result.

The complaint purports to allege two causes of action. In the first cause on behalf of plaintiff, Robert Goelet, Jr., it is alleged that defendants printed and published in the January, 1956 issue of their magazine, 'Confidential', a sordid article incorporating said plaintiff's name and photographs, without his consent, for the purpose of trade and for the primary purpose of amusing and astonishing the public and not for the legitimate purpose of disseminating news or actual events. The second cause makes the same charges on behalf of plaintiff-wife, Gloria Goelet. A copy of the article published is annexed to the complaint.

In judging the sufficiency of the complaint, certain well established principles must be applied. In Gautier v. Pro-Football, 304 N.Y. 354, 358, 107 N.E.2d 485, 487, it was said:

'In this State, the right of privacy rests solely in statute: Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478; Rhodes v. Sperry & Hutchinson Co., 193 N.Y. 223, 85 N.E. 1097, 34 L.R.A.,N.S., 1143, affirmed sub nom. Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 31 S.Ct. 490, 55 L.Ed. 561; Civil Rights Law, §§ 50, 51. As the Roberson and Rhodes cases show, the statute was born of the need to protect the individual from selfish, commercial exploitation of his personality. Nevertheless, in construing the act, it should be borne in mind that it is partly penal in effect. Binns v. Vitagraph Co., 210 N.Y. 51, 55, 103 N.E. 1108, 1110, L.R.A.1915C, 839; see Civil Rights Law, § 50.'

While newspapers and magazines are published for profit, the use of a name or picture in such publications does not ipso facto fall within the statute's (Sec. 51, Civil Rights Law) 'purposes of trade'. Binns v. Vitagraph Co., 210 N.Y. 51, 103 N.E. 1108, 1109; Sidis v. F-R Pub. Corp., 2 Cir., 113 F.2d 806, 138 A.L.R. 15, certiorari denied 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462; Molony v. Boy Comics Publishers, 277 App.Div. 166, 98 N.Y.S.2d 119; Lahiri v. Daily Mirror, Inc., 162 Misc. 776, 295 N.Y.S. 382. As Justice Shientag said in Lahiri v. Daily Mirror, Inc., supra, 162 Misc. at pages 781-782, 295 N.Y.S. at page 388:

'The public policy involved in leaving unhampered the channels for the circulation of news and information is considered of primary importance, subject always, of course, to the common-law right of redress for libel. A free press is so intimately bound up with fundamental democratic institutions that, if the right of privacy is to be extended to cover news items and articles of general public interest, educational 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, 188 Misc. 479, 68 N.Y.S.2d 779, affirmed 272 App.Div. 759, 69 N.Y.S.2d 432.

Nor does the statute give a cause of action to those who through their own activities have become public figures. 'Those seeking notoriety will be said to have waived, and those having it thrust upon them to have lost, their right to personal seclusion.' Hofstadter--Development of the Right of Privacy in New York, p. 39. See also 52 Col.L.Rev. 664. Once a person has sought publicity he cannot at this whim withdraw the events of his life from public scrutiny (Cohen v. Marx, 94 Cal.App.2d 704, 211 P.2d 320). Where there has been no attempt to conceal occurrences in one's life (the complaint alleges that plaintiff Robert Goelet, Jr., was well known), the notoriety thus obtained places one's activities in the pitiless light of publicity and renders him a legitimate item of news.

A qualification to the right to publish items regarding public figures was stated in the Gautier case, supra. Judge Froessel said (304 N.Y. at page 359, 107 N.E.2d at page 488) 'While one who is a public figure or is presently newsworthy may be the proper subject of news or informative presentation, the privilege does not extend to commercialization of his personality through a form of treatment distinct from the dissemination of news or information. Redmond v. Columbia Pictures Corp., 277 N.Y. 707, 14 N.E.2d 636; Franklin v. Columbia Pictures Corp., 246 App.Div. 35, 284 N.Y.S. 96, affirmed 271 N.Y. 554, 2 N.E.2d 691; Binns v. Vitagraph Co., supra; Sutton v. Hearst Corp., 277 App.Div. 155, 98 N.Y.S.2d 233.'

Plaintiffs claim that the article in question involves a fictional, sensational and distorted representation, purporting to be a true portrayal of highly intimate details of their lives, accompanied by their photographs; and that such material cannot be deemed to be a matter of legitimate public interest. In Sutton v. Hearst Corp., 277 App.Div. 155, 98 N.Y.S.2d 233, this Court, by a divided vote, held that a highly embellished or sensationalized version of the facts with imaginative touches contributed by the author went beyond the immunity of freedom of the press in dealing with items of newsworthy value. However, ...