Groden v. Random House, Inc.

• Decision Date: 28 July 1995
• Docket Number: D,No. 1678,1678
• Parties: 1995-2 Trade Cases P 71,073, 35 U.S.P.Q.2d 1547, 23 Media L. Rep. 2203 Robert J. GRODEN, Plaintiff-Appellant, v. RANDOM HOUSE, INC., The New York Times Company, Inc., The New York Times Sales, Inc., and Gerald Posner, Defendants-Appellees. ocket 94-9100.
• Court: U.S. Court of Appeals — Second Circuit

Page 1045

61 F.3d 1045

1995-2 Trade Cases P 71,073, 35 U.S.P.Q.2d 1547,

23 Media L. Rep. 2203

Robert J. GRODEN, Plaintiff-Appellant, v. RANDOM HOUSE, INC., The New York Times Company, Inc., The

New York Times Sales, Inc., and Gerald Posner,

Defendants-Appellees.

No. 1678, Docket 94-9100.

United States Court of Appeals, Second Circuit.

Argued May 10, 1995.

Decided July 28, 1995.

Roger Bruce Feinman, New York City, for plaintiff-appellant.

Victor A. Kovner, New York City (Alexandra Nicholson, Lankenau Kovner & Kurtz, New York City; Lesley Oelsner, Associate Gen. Counsel, Random House, New York City; George Freeman, Kenneth A. Richieri, Asst. Gen. Counsel, The New York Times Co., New York City, on the brief), for defendants-appellees.

Before NEWMAN, Chief Judge, FEINBERG and PARKER, Circuit Judges.

JON O. NEWMAN, Chief Judge:

This appeal pits a book publisher's right to advertise a book against Lanham Act and state-law privacy claims asserted by an author of another book whose name, picture, and quotation are displayed in the ad. The lawsuit arises in the emotionally charged context of the lingering controversy as to whether the assassination of President John F. Kennedy was the work of a lone gunman or the result of a conspiracy. Plaintiff-appellant Robert J. Groden appeals from the August 25, 1994, judgment of the District Court for the Southern District of New York (John S. Martin, Jr., Judge) and two subsequent rulings that rejected his claims. Groden contends that an ad published by defendant-appellee Random House, Inc. promoting the book Case Closed, written by defendant-appellee Gerald Posner, violated Groden's federal and state law rights. For the reasons set forth below, we affirm both the judgment of the District Court and its post-trial rulings.

Background

In 1993, in connection with the thirtieth anniversary of the assassination of President Kennedy, Random House published Posner's book Case Closed. The book attempts to refute the numerous conspiracy theories about the Kennedy assassination and concludes that the Warren Commission correctly determined that Lee Harvey Oswald acted alone in shooting the President. Groden is one of the authors whose theories Case Closed criticizes. In 1989, he co-authored with Harrison Edward Livingston the book High Treason. Though Groden objects to the label "conspiracy theorist," the indisputable fact is that the book he co-authored presents the theory that several people conspired to kill President Kennedy.

To announce the publication of Case Closed, Random House placed an advertisement--now the subject of this appeal--in The New York Times on August 24 and 27, 1993. The ad contained the names, photographs, and quotations of six authors, including Groden, whose books argue a conspiracy theory of the Kennedy assassination. Above the six pictures, the ad headline read, "GUILTY OF MISLEADING THE AMERICAN PUBLIC." Adjacent to Groden's name and photograph was a quotation dated 1989, which read as follows:

Who killed President Kennedy? It took a combination of the CIA controlled Cuban exiles, Organized Crime, and the Ultra Right Wing, with the support of some politically well connected wealthy men to pull it off.

The quote was taken verbatim from the book High Treason, which Groden had co-authored. Below the set of six photographs and quotes, the ad contained a short statement of the thesis of Case Closed: "ONE MAN. ONE GUN. ONE INESCAPABLE CONCLUSION." and ended with: "READ: CASE CLOSED BY GERALD POSNER."

Groden's complaint alleged, with respect to both publications of the ad, violations of New York Civil Rights Law Secs. 50 and 51 (McKinney 1992) and section 43(a) of the Lanham Act, 15 U.S.C. Sec. 1125(a) (1988 and Supp. V 1993). Appellees moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment on the basis of counsel's affirmation with supporting exhibits.

The District Court granted summary judgment and dismissed the complaint. The Court first held that appellees' advertisement fell within the "incidental use" exception to the New York Civil Rights Law and was therefore outside the scope of the statute. It also rejected the Lanham Act claims because appellant had failed to present facts supporting his claims of false advertising, false attribution, or false endorsement.

Apparently unbeknown to the District Court, three days before the Court issued its summary judgment ruling, Groden had filed an amended complaint, identical in all respects to the original except that it added a new defendant, the New York Times Sales Company, Inc., and a new substantive paragraph clarifying the Lanham Act claim. Appellant thereafter moved for reconsideration of the dismissal ruling and for recusal of the District Judge. Judge Martin denied rehearing and dismissed the amended complaint, concluding that nothing new had been alleged. The recusal motion was denied for lack of any factual basis. A second motion for recusal was also denied, and this Court denied Groden's attempt to compel recusal by a petition for mandamus.

Discussion

I. New York Civil Rights Law Secs. 50 and 51

Since 1903, section 50 of the New York Civil Rights Law has made it a misdemeanor to use, for advertising purposes or for the purposes of trade, the name, portrait, or picture of any living person without first obtaining his written consent. N.Y.Civ.Rights Law Sec. 50 (McKinney 1992); see Humiston v. Universal Film Mfg. Co., 189 A.D 467, 471-72, 178 N.Y.S. 752, 755-56 (1919). Section 51 provides a cause of action for injunctive relief and damages by any person whose name, portrait, or picture is so used. See id. Sec. 51. In New York, there is no common-law right of privacy, see Freihofer v. Hearst Corp., 65 N.Y.2d 135, 140, 490 N.Y.S.2d 735, 739, 480 N.E.2d 349, 353 (1985), or publicity, see Stephano v. News Group Publications, Inc., 64 N.Y.2d 174, 183, 485 N.Y.S.2d 220, 224, 474 N.E.2d 580, 584 (1984), and sections 50 and 51 afford the only available remedy. See Freihofer, 65 N.Y.2d at 140, 490 N.Y.S.2d at 739, 480 N.E.2d at 353; Stephano, 64 N.Y.2d at 183, 485 N.Y.S.2d at 224, 474 N.E.2d at 584.

Not every use of an individual's name, portrait, or picture for commercial purposes without his consent, however, violates sections 50 and 51. In general, the remedy of section 51 has been characterized as "limited" in scope. See Freihofer, 65 N.Y.2d at 140, 490 N.Y.S.2d at 739, 480 N.E.2d at 353. In the particular context of ads for books and periodicals, New York courts have recognized an exception to section 51 for the "incidental" use in ads or other promotional items of material that "prove[s] [the] worth and illustrates [the] content" of the works being advertised. Booth v. Curtis Publishing Co., 15 A.D.2d 343, 349, 223 N.Y.S.2d 737, 743 (1st Dept.), aff'd, 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812 (1962); see Velez v. VV Publishing Corp., 135 A.D.2d 47, 49, 524 N.Y.S.2d 186, 187 (1st Dept.), app. denied, 72 N.Y.2d 808, 533 N.Y.S.2d 57, 529 N.E.2d 425 (1988); Namath v. Sports Illustrated, 48 A.D.2d 487, 371 N.Y.S.2d 10 (1st Dept.1975), aff'd, 39 N.Y.2d 897, 386 N.Y.S.2d 397, 352 N.E.2d 584 (1976); Humiston, 189 A.D. at 477, 178 N.Y.S. at 758-59. The "incidental use" exception has been applied to the use of: a photo of a community activist, originally appearing on a newspaper front page, in a subscription-soliciting advertisement in a later edition of the paper, see Velez, 135 A.D.2d at 47, 524 N.Y.S.2d at 186; photographs of a sports personality, originally appearing in a sports magazine, in advertisements promoting the sale of subscriptions to the magazine, see Namath, 48 A.D.2d at 488, 371 N.Y.S.2d at 11; a photograph of a well-known actress, originally appearing in a magazine, as part of an advertisement for the magazine in other periodicals, see Booth, 15 A.D.2d at 344, 223 N.Y.S.2d at 738-39; and a person's name and picture, originally appearing in a newsreel film, on posters used to advertise the exhibition of the film, see Humiston, 189 A.D. at 476-77, 178 N.Y.S. at 759.

Groden acknowledges the "incidental use" exception to section 51, but contends for several reasons that it should not apply to Random House's ad for Case Closed. First, he argues that the "incidental use" exception is confined to the reproduction in advertising of an image, portrait, or likeness that has appeared within the publication being advertised. As Groden notes, the ad for Case Closed contains his photograph, but the book does not. Though most of the New York cases applying the incidental use exception involve the republication of a photograph originally used in an underlying publication, we do not believe that the New York courts require such republication. Rand v. Hearst Corp., 31 A.D.2d 406, 298 N.Y.S.2d 405 (1st Dept.1969), aff'd, 26 N.Y.2d 806, 309 N.Y.S.2d 348, 257 N.E.2d 895 (1970), a leading case on incidental use, illustrates the point. Rand concerned a book jacket in which a publisher had used the name of Ayn Rand in describing the writing style of the book's author. The Appellate Division found this to be incidental use, even though Rand's name was not used anywhere in the book. The Court observed that "[t]o hold otherwise would constitute an impermissible restriction on what we deem to be the right of a publisher in informing the public of the nature of his book and comparing it with the works of other authors." Id. at 411, 298 N.Y.S.2d at 412. In the pending case, appellees used Groden's name and photograph, and the quote from his book, to contrast the theories publicly advanced by Groden with those discussed by Posner in Case Closed. And Posner's book specifically referred to Groden by name.

Other decisions of the New York courts also indicate that republication is not required for incidental use. In Namath, supra, as later explained in Velez, 135 A.D.2d at 51, 524 N.Y.S.2d at 189, the photographs of Joe Namath reproduced in the advertisements were "cr...