Grant v. Esquire, Inc.

• Decision Date: 28 November 1973
• Docket Number: No. 72 Civ. 1041.,72 Civ. 1041.
• Citation: 367 F. Supp. 876
• Parties: Cary GRANT, Plaintiff, v. ESQUIRE, INC. and Forum Sportswear, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

367 F. Supp. 876

Cary GRANT, Plaintiff, v. ESQUIRE, INC. and Forum Sportswear, Inc., Defendants.

No. 72 Civ. 1041.

United States District Court, S. D. New York, Civil Division.

November 27, 1973.

As Amended November 28, 1973.

Walter, Conston, Schurtman & Gumpel, P. C., New York City, for plaintiff; William Schurtman, New York City, of counsel.

Cravath, Swaine & Moore, New York City, for defendants; Harold R. Medina, Jr., Thomas C. Hauser, New York City, of counsel.

OPINION

WHITMAN KNAPP, District Judge.

The essential facts relevant to the cross motions for summary judgment in this diversity action are not in dispute, and are relatively simple. Back in 1946, Esquire published an article about the clothing tastes and habits of six Hollywood stars, including plaintiff Cary Grant. This article was illustrated with posed pictures of these stars, obtained with their consent. The caption under Mr. Grant's picture was as follows:

"Hollywood Luminary Cary Grant— Cary Grant, ever coming up with the unexpected in pictures (as witness his roles in films from Gunga Din to Notorious with Ingrid Bergman), leans to conservative dress in his private life. Accordingly you see him in his favorite town suit of blue-striped unfinished worsted. The jacket, designed with slightly extended shoulders, has long rolled lapels which emphasize a trim waistline. The shirt, of off-white silk shantung, has a full collar. The black and white small-figured tie is typical of his taste in neck-wear. He designs his own easygoing dress shirts, by the way. Made with a fly front, they fasten informally with buttons. As a concession to usage, they have studs but these purely decorative devices go only through the flap of the shirt."

It is to be observed that the foregoing caption provides the reader—in succinct form—with a fair amount of information about Mr. Grant's habits and life style. A considerable segment of the population might well consider this both interesting and informative.

In 1971, Esquire republished the same picture with one modification: everything below the collar line had been replaced with the figure of a model clothed in a cardigan sweater-jacket. Under the picture was the following caption:

"To give a proper good riddance to the excesses of the Peacock Revolution we have tried a little trickery. And what better way to show the longevity of tradition than by taking the pictures of six modish men that appeared in Esquire in 1946 and garbing the ageless enchantment of these performers in the styles of the Seventies. Above, Cary Grant in a descendant of the classic cardigan, an Orlon double-knit navy, rust, and buff sweater-coat (Forum, $22.50)."

It is to be observed that neither the picture nor the caption tells the reader anything about Mr. Grant. One is not told whether Mr. Grant ever wore a cardigan sweater jacket, or anything else about him except his one-time appearance in the pages of Esquire. Mr. Grant's face serves no function but to attract attention to the article. Presumably the model who posed for the torso got a professional fee for his part in the enterprise. The question presented is whether Esquire had the right to compel Mr. Grant to contribute his face for free.

It is plaintiff's claim that the 1971 Esquire article gives rise to three causes of action: for libel; for invasion of plaintiff's statutory right of privacy; and, while not made explicit in the complaint, for violation of plaintiff's "right of publicity."

Defendants contend that the complaint fails to state any claim as a matter of state law; and that, in any event, all of its claims are barred by the First Amendment and must therefore be dismissed.

It is readily apparent that these claims and contentions pose two basic questions: 1) Has plaintiff stated one or more valid claims under state law? 2) If so, is there a constitutional bar to plaintiff's enforcement of such otherwise valid state claim?

I.

Turning to state law, there is no difficulty in disposing of the claim for libel. A succinct exposition of the limits of libel under New York law (absent any showing of special damage) is found in Justice (now Chief Judge Breitel's opinion in Oma v. Hillman Periodicals (1st Dept. 1945) 281 App.Div. 240, 118 N.Y.S.2d 720. There, quoting from an earlier opinion of the Court of Appeals, he observed (at 722):

"Written words, the effect of which is to invade privacy and to bring undesired notoriety, are without remedy, unless they also appreciably affect reputation. * * *

"Reputation is said in a general way to be injured by words which tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society."

No amount of "innuendo" could suggest that the Esquire article had any such effect on Mr. Grant. The publication therefore is not, as a matter of law, libelous. The first cause of action is accordingly dismissed.

Plaintiff's remaining state claims rest on § 51 of the New York Civil Rights Law, McKinney's Consol. Laws, c. 14 and upon the somewhat related common law "right of publicity". § 51 provides:

"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. . . ."

The two key expressions in this section are "for advertising purposes" and "for the purposes of trade". We shall first consider the expression "for advertising purposes". As to that, the Court rules as a matter of law that the article on its face does not constitute an advertisement. Pagan v. N. Y. Herald Tribune (1st Dept. 1969) 32 A.D.2d 341, 301 N.Y.S.2d 120; LaForge v. Fairchild Publications, Inc. (1st Dept. 1965) 23 A.D.2d 636, 257 N.Y.S.2d 127.

Plaintiff contends, however, that he should be allowed to prove that defendants had some covert arrangement with each other which converted the Esquire article into a paid advertisement for the co-defendant Forum. As to that, it seems highly unlikely—in light of the detailed affidavits submitted by defendants on this motion—that plaintiff will be able to establish such a contention. However, the facts—if any—being wholly within defendants' control, plaintiff should have the opportunity to establish its case by pre-trial discovery if he can. Waldron v. British Petroleum Co. (Herlands, J., 1964) 231 F.Supp. 72, 94; 6 Moore's Federal Practice § 56.24. Moreover, plaintiff made a satisfactory showing on oral argument that he cannot properly be charged with laches in this regard. Accordingly, absent any constitutional restraint (as to which see below) the Court will refer the matter to a Magistrate for pre-trial discovery on this limited issue, with directions that it be expeditiously completed.

The statutory phrase "for the purposes of trade" is not so easily disposed of. The statutory right to recover damages for the use of one's name for the purpose described in that phrase has had a development influenced by and intertwined with a somewhat disparate common law right known as the right of publicity. See Haelan Laboratories v. Topps (2d Cir. 1953) 202 F.2d 866, cert. den. 346 U.S. 816, 74 S.Ct. 26, 98 L.Ed. 343; Ettore v. Philco Television Broadcasting (3d Cir. 1956) 229 F.2d 481. Cf. Taggart v. Wadleigh-Maurice, Ltd. and Warner Bros. Inc. (3d Cir. 1973) 489 F.2d 434. The "right of publicity" is somewhat akin to the exclusive right of a commercial enterprise to the benefits to be derived from the goodwill and secondary meaning that it has managed to build up in its name. Cf. Wood v. Lucy, Lady Duff-Gordon (1917) 222 N. Y. 88, 118 N.E. 214; Madison Square Garden Corp. v. Universal Pictures Co. (1st Dept. 1938) 255 App.Div. 459, 7 N. Y.S.2d 845.

In seeking to define the limits of this right, the Court must bear in mind the recent observation of the Second Circuit that New York law in this area is in process of development. Galella v. Onassis (2d Cir. 1973) 487 F.2d 986, 995, fn. 12. The Court must, therefore, act as though it were sitting in special term of the Supreme Court, New York County, and fashion a decision it thinks would meet the approval of the New York Court of Appeals. Cooper v. American Airlines (2d Cir. 1945, Judge Frank), 149 F.2d 355. The relevant New York decisions appear to be: Lahiri v. Daily Mirror (Sup.Ct. N.Y. County 1937) 162 Misc. 776, 295 N.Y.S. 382; Oma v. Hillman Periodicals, supra, 118 N.Y.S.2d 720; Booth v. Curtis Publishing Co. (1st Dept. 1962) 15 A.D.2d 343, 223 N. Y.S.2d 737, aff'd 11 N.Y.2d 907, 228 N. Y.S.2d 468, 183 N.E.2d 812; Murray v. New York Magazine (1971) 27 N.Y.2d 406, 318 N.Y.S.2d 474, 267 N.E.2d 256; Rosemont Enterprises, Inc. v. Urban Systems, Inc. (Sup.Ct. N.Y. County 1973) 72 Misc.2d 788, 340 N.Y.S.2d 144.

In all but the last of the cases above cited the plaintiff was denied recovery under § 51, for the reason that in each the court held plaintiff's picture to have been "reasonably related" to a newsworthy subject and thus its use not to have been "for purposes of trade" within the meaning of § 51.

As above indicated, two distinct interests appear to be protected under the general rubric of a "right to privacy". The first protects that right in its more conventional sense, and permits a private individual to recover damages for injured feelings and general embarrassment if for purposes of trade he is unjustifiably subjected to the harsh and— to him—unwelcome glare of publicity. See, e. g. Flores v. Mosler Safe Co. (1959) 7 N.Y.2d 276, 196 N.Y.S.2d 975, 164 N.E.2d 863. The...