Levey v. Warner Bros. Pictures

Decision Date28 July 1944
Citation57 F. Supp. 40
PartiesLEVEY v. WARNER BROS. PICTURES, Inc.
CourtU.S. District Court — Southern District of New York

Harry H. Oshrin and Harry Weinberger, both of New York City, for plaintiff.

R. W. Perkins, by Joseph D. Karp and Stanleigh P. Friedman, all of New York City, for defendant.

BONDY, District Judge.

The plaintiff, Ethel Levey, claiming that her right of privacy has been violated by the production and exhibition of the motion picture "Yankee Doodle Dandy" by the defendant, Warner Bros. Pictures, Inc., brought this action under the Civil Rights Law of the State of New York, Consol. Laws, c. 6, to recover damages and to enjoin the further distribution and exhibition of the picture in this state in its present form.

The action was removed to this court from the Supreme Court of this state, on the ground of diversity of citizenship of the parties.

Section 51 of the Civil Rights Law of the State of New York provides that any person whose name, portrait or picture is used within the State of New York for advertising purposes or for the purposes of trade without his written consent first obtained, may maintain an equitable action against the person, firm or corporation so using his name, portrait or picture to prevent the use thereof, and may also sue to recover damages for injuries sustained by reason of such use.

To establish that her picture or portrait was used in the motion picture, the plaintiff told the story of her life. She described the-atrical performances in which she took part with George M. Cohan and also the following events of her life, which she claims were featured in the picture:

She testified that in 1898, when she was seventeen years of age and had met with some success as an actress and singer in vaudeville, she was invited to join others in a room in a hotel in Chicago. There she met George M. Cohan for the first time. He was then about twenty years of age and appearing in another vaudeville with his father, mother and sister. Cohan proposed to her the first time they met. He gave her two songs which he had composed and which she sang the following Monday at the opening of the show in which she took a part. She became Cohan's sweetheart and continued to sing songs which he composed. In July, 1899, they were married and thereafter she took a leading part in the plays which he wrote and produced. She also testified that it was largely through her efforts that in 1904 Sam H. Harris, a producer, was induced to finance the production and exhibition of the play "Little Johnny Jones," which was one of the outstanding Cohan successes. In 1905 at the opening in Chicago of the musical play "Forty-Five Minutes From Broadway," written by her husband Cohan, she was in a box with him and his parents and heard the popular song "Mary" sung by Fay Templeton, a well-known actress. In December, 1906, the plaintiff and Cohan separated and in June, 1907, she obtained a divorce. In the same year Cohan married a girl with whom he lived until his death November 9, 1942.

After her divorce and until recently, the plaintiff spent most of her time abroad, where she married again in 1916.

In 1941 the defendant obtained the consent of George M. Cohan in writing, to produce and exhibit a motion picture based on his life and experiences and the right to use therein plays, songs and music written and composed by him.

In 1942, thirty-five years after the divorce, the defendant produced and exhibited in the State of New York the motion picture "Yankee Doodle Dandy" which was, as the plaintiff in her complaint characterizes it, "a dramatic and fictional biographic presentation of the life of one George M. Cohan, one of the foremost and successful actors, playwrights, composers, directors and theatrical producers of the early twentieth century and for many years thereafter."

The picture shows the life of George M. Cohan, more or less fictional, from the time of his birth, July 4, 1878, to 1940, when the President of the United States presented the Congressional Medal of Honor to him. In the picture Cohan is impersonated by James Cagney and a fictitious character "Mary" by Joan Leslie. At the beginning it shows Mary and Cohan, when advanced in years and towards the end of the theatrical career of Cohan, as husband and wife and at a time when the picture of Mary could not have any reference to the plaintiff. It does not disclose that Cohan ever was divorced and it gives the impression that Mary was the only woman he ever married. In the picture, which reverts to an earlier period of Cohan's life, Mary when about seventeen years of age, stage struck and ambitious for a theatrical career, after having seen Cohan perform on the stage, goes uninvited into his dressing room. He is still in his disguise of an old man with a beard. They dance for one another. When his disguise is removed, Mary is terrorized to discover that Cohan is a young man about twenty years of age. Cohan at once becomes interested in Mary and writes songs for her....

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13 cases
  • Marzen v. US Dept. of Health and Human Services
    • United States
    • U.S. District Court — Northern District of Illinois
    • April 4, 1986
    ...for this proposition: Branson v. Fawcett Publications, Inc., 124 F.Supp. 429, 432-33 (E.D.Ill. 1954); Levey v. Warner Bros. Pictures, Inc., 57 F.Supp. 40, 42 (S.D.N.Y.1944); Sellers v. Henry, 329 S.W.2d 214, 215-16 (Ky.Ct.App.1959); Waters v. Fleetwood, 212 Ga. 161, 91 S.E.2d 344, 348 (1956......
  • Hazlitt v. Fawcett Publications
    • United States
    • U.S. District Court — District of Connecticut
    • November 4, 1953
    ...that it was an appropriation of an episode of the plaintiff's life to the defendant's use for commercial purposes. Levey v. Warner Bros. Pictures, D.C., 57 F.Supp. 40; Feinberg, op. cit. For, to the extent that the defendant indulged in fictionalization, the inference gathers strength that ......
  • Cohen v. Herbal Concepts, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • March 8, 1984
    ...a § 51 claim (People v. Charles Scribners Sons, 205 Misc. 818, 130 N.Y.S.2d 514; Negri v. Schering Corp., supra; Levey v. Warner Brothers Pictures, 57 F.Supp. 40. This Court has recently enunciated the rule that without this clear identification of plaintiff, the claims under Section 51 mus......
  • Bindrim v. Mitchell
    • United States
    • California Court of Appeals
    • April 18, 1979
    ...might suggest Hazel Wheeler to those who knew the Chenoweth family, suggestion is not identification. In Levey (Levey v. Warner Bros. Pictures (S.D.N.Y.1944) 57 F.Supp. 40) the court said those who had seen her act may have been reminded of her by songs and scenes, but would not reasonably ......
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