Lerman v. Chuckleberry Pub., Inc.

• Decision Date: 02 September 1980
• Docket Number: 80 Civ. 1658 (HFW).
• Citation: 496 F. Supp. 1105
• Parties: Jackie Collins LERMAN, Plaintiff, v. CHUCKLEBERRY PUBLISHING, INC., and Publishers Distributing Corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

496 F. Supp. 1105

Jackie Collins LERMAN, Plaintiff, v. CHUCKLEBERRY PUBLISHING, INC., and Publishers Distributing Corporation, Defendants.

80 Civ. 1658 (HFW).

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

July 31, 1980.

On Motion For Reconsideration September 2, 1980.

Grutman & Schafrann and Felix C. Ziffer, New York City, for plaintiff; Jeffrey H. Daichman, New York City, of counsel.

Feltman, Karesh & Major and Goldschmidt, Fredericks, Kurzman & Oshatz, New York City, for defendant Chuckleberry.

Katz, Leavy, Rosensweig & Sindle, New York City, for defendant Publishers.

Greenbaum, Wolff & Ernst, New York City, for Publishers on motion for reconsideration; Marcia B. Paul and Jerry Simon Chasen, New York City, of counsel.

OPINION

WERKER, District Judge.

This action for libel, invasion of privacy and violation of the right of publicity was commenced by plaintiff Jackie Collins Lerman against defendants Chuckleberry Publishing Inc. ("Chuckleberry") and Publishers Distributing Corporation ("Publishers").¹ This case is presently before the court on plaintiff's motion for partial summary judgment on her claim of invasion of privacy under sections 50 and 51 of the New York Civil Rights Law (McKinney 1976 & Supp. 1979-1980). Plaintiff also moves for an expedited trial on the issue of damages. Chuckleberry cross-moves to compel discovery.

FACTS

Chuckleberry and Publishers are, respectively, the publisher and national distributor of a magazine entitled Adelina. The cover of the May 1980 issue of Adelina bears the headline "In The Nude From The Playmen Archives," and lists, among others, the plaintiff's name. At pages 117-20 of the issue, there is a section headed "Archives" which contains erotic and nude photographs of purportedly well-known actresses. At page 119, plaintiff's name appears in bold lettering accompanying photographs of a naked woman and an orgy scene with two men and three women. Underneath the "Jackie Collins" caption is the statement that "Jackie is a newcomer to films and her first was the The World Is Full Of Married Men, from the novel by the late Jacqueline Susann. There is an orgy scene . . . and after that, what can a starlet do for an encore?" It is clear that plaintiff does not in fact appear in any of the photographs,² and it is undisputed that plaintiff is not an actress but rather a successful novelist and screenwriter. She wrote the screenplay for the film The World Is Full Of Married Men which was based on a novel written by her and not by the late Jacqueline Susann.

Plaintiff asserts that she never granted defendants consent, written or otherwise, to use her name. The defendants do not deny that they never obtained a written release from plaintiff. Chuckleberry, however, states that the material which is the subject of this lawsuit was previously published in Italy by its Italian licensor, Tattilo Editrice SPA, in the August 1979 issue of Playmen. Chuckleberry's Italian licensor purportedly obtained the photographs and text in precisely the form in which they appear in Adelina from the Luxembourg office of Media Press International ("MPI"), a public relations firm. The material allegedly was received and distributed by MPI in connection with the promotion of the film The World Is Full Of Married Men. Chuckleberry states that it assumed that MPI had releases for the use of this material. According to Chuckleberry, MPI insists that all necessary releases were obtained with respect to the distribution of the pictures in question. However, MPI apparently refuses to furnish Chuckleberry with any such release by plaintiff. Affid. of Walter Zacharius, President of Chuckleberry, sworn to May 12, 1980, at 3-4.

This action was commenced by the filing of a complaint on March 24, 1980. An order to show cause was issued the same day, and following a hearing on March 31, 1980, a preliminary injunction was granted by this court. Thereafter, plaintiff filed and served an amended complaint. The instant motions followed.

DISCUSSION

In moving for summary judgment on her invasion of privacy claim, plaintiff argues that the defendants used her name in the May 1980 issue of Adelina for purposes of trade without her consent. In opposing the motion, the defendants rely principally on two arguments: (1) because the plaintiff is a public figure and because her name was used in connection with a "newsworthy" event, they cannot be liable for publishing her name unless the plaintiff establishes malice, citing inter alia Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), and (2) the plaintiff purportedly delivered a release in connection with similar or identical material published in an Italian magazine. In connection with the latter argument, defendants contend that plaintiff has refused to cooperate with discovery requests, and that they therefore have not been able to ascertain certain facts, including whether or not a prior release had been granted to MPI.

Section 51 of the Civil Rights Law provides in pertinent part:

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 of such person may maintain an equitable action . . . 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 . . ..

N.Y. Civil Rights Law § 51 (McKinney Supp. 1979-1980).

To make out a claim under section 51, a plaintiff must establish (1) that the defendant used plaintiff's name, portrait or picture within the state, (2) for purposes of advertising or trade, and (3) without first obtaining plaintiffs' written consent.

It is clear that the defendants did use plaintiff's name within the state. The May 1980 issue of Adelina bore plaintiff's name on the cover and her name was used again on page 119 of that issue. The issue was published and distributed throughout the United States, including New York. Hence, the first element of a section 51 cause of action has been established.

Defendants' use of plaintiff's name on the cover of Adelina and associated in the "Archives" section with photographs of a nude woman and an orgy scene purporting to include plaintiff is unquestionably a commercial use for the purpose of trade within the meaning of the statute. In Wallace v. Weiss, 82 Misc.2d 1053, 372 N.Y.S.2d 416 (Sup.Ct.Mon.Co.1975), the court observed that:

Where a photograph is not used in connection with an advertisement and does not illustrate an article on a matter of public interest, but appears in a periodical primarily to enhance the sales of the periodical, the use may be considered a commercial one for the purpose of trade. Thus, it cannot be doubted that the subject of a centerfold has a cause of action against a magazine for the unauthorized use of his photograph.

82 Misc.2d at 1055, 372 N.Y.S.2d at 419 (citation omitted).

It is the established law of New York that the unauthorized use of an individual's name or picture is not for "a trade purpose," and thus not violative of section 51, if the name or picture is used in connection with an item of news or some other newsworthy event. Gautier v. Pro-Football, Inc., 304 N.Y. 354, 359, 107 N.E.2d 485, 488 (1952). Accord, Sidis v. F-R Pub. Corp., 113 F.2d 806 (2d Cir.), cert. denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1940). In the instant action, however, there is no such informational or newsworthy dimension to Chuckleberry's unauthorized use of plaintiff's name. Rather, the plaintiff's name was used solely for the purpose of enhancing the sales of the magazine.

In Ali v. Playgirl, Inc., 447 F.Supp. 723 (S.D.N.Y.1978), which involved the unauthorized use of plaintiff Muhammed Ali's likeness in Playgirl magazine, the court stated that:

The picture is a dramatization, an illustration falling somewhere between representational art and cartoon, and is accompanied by a plainly fictional and allegedly libellous bit of doggerel. Defendants cannot be said to have presented `the unembroidered dissemination of facts' or `the unvarnished, unfictionalized truth . . ..' The nude portrait was clearly included in the magazine solely "for purposes of trade — e. g., merely to attract attention."

447 F.Supp. at 727 (citations omitted). In the instant case, Chuckleberry's use of plaintiff's name is similarly fictionalized in that plaintiff does not appear in any of the photographs which were represented to be her, and the use of her name was for a commercially exploitive effect rather than for the purpose of informing the public about a newsworthy event. There is no question that plaintiff's name was used for purposes of trade.

The third and final element is the absence of consent. It is undisputed that plaintiff did not give the defendants any consent, written or otherwise, to use her name in Adelina, and in my opinion it is irrelevant whether or not plaintiff gave a release to MPI. Even if it is assumed that plaintiff did give a release to MPI in Luxembourg for material published in Italy, that release could not be relied on by defendants with respect to their publication of a different magazine in New York. Sections 50 and 51 clearly require a person or company desiring to use a person's name, portrait or picture for trade or advertising purposes to first obtain that person's written consent. In the case at bar, the defendants did not first obtain the plaintiff's written consent to their usage of her name; the fact that she may have granted a release to some other company is immaterial.

Although the issue is not pursued in the defendants' joint memorandum of law, the defendant Publishers maintains that since it merely distributed the issue of Adelina in question, it did not "use" plaintiff's name within the meaning of section 51 and therefore is not subject to liability. This position, however,...