Moglen v. Varsity Pajamas, Inc.

• Decision Date: 25 April 1961
• Citation: 213 N.Y.S.2d 999,13 A.D.2d 114
• Parties: Lloyd MOGLEN, Plaintiff-Appellant, v. VARSITY PAJAMAS, INC., Brookdale Sport Togs, Inc., Wernco Fabrics Company, Inc., Gimbel Brothers, Inc., Arnold Constable Corporation May Department Stores, Inc. and Federated Department Stores, Inc., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 999

213 N.Y.S.2d 999

13 A.D.2d 114

Lloyd MOGLEN, Plaintiff-Appellant, v. VARSITY PAJAMAS, INC., Brookdale Sport Togs, Inc., Wernco Fabrics Company, Inc., Gimbel Brothers, Inc., Arnold Constable Corporation May Department Stores, Inc. and Federated Department Stores, Inc., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

April 25, 1961.

Maxwell D. Moglen, Mount Vernon, for appellant.

Albert A. DeStefano, New York City, of counsel (George A. Katz, New York City, on the brief; Becker, Ross & Stone, New York City, attorneys), for defendants-respondents.

Nathan Weber, New York City, for respondent Brookdale Sport Togs, Inc.

Philip Reich, New York City, of counsel (Lopin & Jacobson, New York City, attorneys), for respondent Wernco Fabrics Co., Inc.

Before VALENTE, J. P., and McNALLY, EAGER, STEUER, and BERGAN, JJ.

BERGAN, Justice.

In April, 1958 plaintiff, who describes himself in the complaint as the 'No. 1 tennis player for Columbia' College, played and lost a match with one Clinton Wong at a tournament in Kingston, Jamaica. A Kingston newspaper, the Daily Gleaner, published an accurate and truthful account of the match.

Defendant Wernco manufactured a fabric which reproduced a portion of the newspaper article; defendant Varsity used the fabric in making underwear and pajamas; and defendant Brookdale used it in making play togs. The other defendants, in turn, offered these products for sale to the public. The action is for a purported invasion of plaintiff's right of privacy (Civil Rights Law, §§ 50-51); and for libel. The complaint has been dismissed at Special Term. We are of opinion the order of dismissal was a correct disposition.

It has been held that a mere incidental commercial use of a person's name or photograph is not actionable under the Civil Rights Law. Stillman v. Paramount Pictures, 5 N.Y.2d 994, 184 N.Y.S.2d 856, affirming 2 A.D.2d 18, 153 N.Y.S.2d 190, which modified, but affirmed on this point 1 Misc.2d 108, 147 N.Y.S.2d 504. It seems manifest from the statutory language itself that some meaningful or purposeful use of the name is essential to the statutory cause of action. It is a person whose name 'is used * * * for advertising purposes' or for 'the purposes' of trade who has a cause of action (section 51). This has been the sense of the judicial construction of the statutory words (Rhodes v. Sperry & Hutchinson Co., 193 N.Y. 223, 85 N.E.2d 1097, 34 L.R.A.,N.S., 1143). A good illustration of an incidential commercial use of a name is Merle v. Sociological Research Film Corporation, 166 App.Div. 376, 152 N.Y.S. 829.

It would not be easy to conceive any 'use' of plaintiff's name that could be more incidental, or so entirely pointless for 'advertising purposes' or for the 'purposes of trade', than the use made of it by defendants on the fabric of which plaintiff complains. A swatch of the fabric is attached to the complaint and is in the record before us.

It is a 'patchwork' pattern of various bright colors and figures arranged in helter-skelter order; and in the midst of this disarray is the reproduction, in black and white, of an irregular torn-out portion of the Daily Gleaner. Printed safety pins purport of attach the 'newspaper patch' to the other figures. This occupies probably seven or eight per cent of the area of the fabric. The most prominent printing is the newspaper title; portions of three newspaper articles appear--none so it may be read fully; and among them is a portion of the account of plaintiff's tennis match. It takes close and careful inspection to read that portion of the partially reproduced text that is there, including plaintiff's name.

We are aided in this endeavor by the complaint which sets forth the portion of the text reproduced in the fabric as follows: 'A 3-sett victory by Clinton Wong over the * * * Columbia's No. 1 Lloyd Moglen who was abo * * * feature of the Port Maria Lawn Tennis Tou * * * was concluded yesterday afternoon. Victory in the men's singles eventually went to Peter Phillips who showed control and form in beating Paul Standel Wong and Arthur Scholfield in successive rounds; but Wong must get the bouquets for his defeat of Moglen which required 130 minutes. Moglen elected to rely on steadiness.'

The use of plaintiff's name in this situation is so clearly incidental as to require a determination as a matter of law that no case for invasion of privacy is shown. The pattern of the newspaper page as a patch in the fabric, taken in its entirety, is incidental to the design of the fabric; and the articles which are in the portion of the page, seem a mere choice of hazard and to have themselves no rational significance in the design or in promoting the sale of the fabric. Even more casual and incidental than the articles is the appearance of plaintiff's name in the text of the of them. The decision in Flores v. Mosler Safe Co., 7 N.Y.2d 276, 196 N.Y.S.2d 975, is not germane to a case of this kind.

Nor is good case of libel pleaded. It is conceded the article in the Daily Gleaner is quite true and accurate; and, of course, its normal reproduction would not be a libel. One ground for libel alleged in the complaint, that the distribution of the plaintiff's name on textiles 'is particularly humiliating because it refers to a loss instead of one of plaintiff's many illustrious victories', is quite irrelevant.

There is a further allegation that 'the innuendo intended' in using the pattern 'with diaper pin clipping torn news item to rest of pattern' is 'jocular mendacity'. Reading these words in their usual sense, i. e., 'innuendo' in the law of libel as suggesting a meaning beyond the surface of the textual language of the offending article, and 'jocular mendacity' as a comic falsehood, to the extent we are able to perceive just what is pleaded, we are unable to spell out anything fitting into an actionable pattern of libel.

Finally plaintiff alleges that the common use of this fabric, containing plaintiff's name for pajamas and for girls' sport togs, in juxtaposition to intimate parts of bodies made their use 'false and defamatory', a term which has general use in the law of...