Namath v. Sports Illustrated

• Decision Date: 13 January 1975
• Parties: Joseph W. NAMATH, a/k/a Joe Namath, Plaintiff, v. SPORTS ILLUSTRATED, a division of Time Incorporated and Time Incorporated, Defendants.
• Court: New York Supreme Court

Page 276

363 N.Y.S.2d 276

80 Misc.2d 531

Joseph W. NAMATH, a/k/a Joe Namath, Plaintiff, v. SPORTS ILLUSTRATED, a division of Time Incorporated and Time Incorporated, Defendants.

Supreme Court, Special Term, New York County, Part I.

Jan. 13, 1975.

Carl R. Sloan, New York City, for plaintiff.

Cravath, Swaine & Moore, New York City (Harold R. Medina, Jr., New York City, of counsel), for defendants.

HAROLD BAER, Justice:

This is a motion to dismiss the complaint which seeks substantial damages under Civil Rights Law, sections 50, 51. Plaintiff demands $250,000. in compensatory damages and $2,000,000. in punitive damages.

The defendant Time Incorporated published Sports Illustrated. In January, 1969, Sports Illustrated published photographs of the plaintiff. These photographs were admittedly newsworthy as plaintiff was the star quarterback of the 'Jets' when they defeated the 'Colts' in the Super Bowl. The gravamen of the plaintiff's complaint is that the magazine, in its advertising campaign during the latter half of 1972, used photographs in ten advertisements to promote subscriptions. He demands damages for violation of his right of privacy and the wrongful use of his photograph without his written consent (Civil Rights Law, §§ 50, 51).

It is apparent from a reading of the complaint that plaintiff seeks damages, not for violation of his right of privacy but because he was deprived of substantial income from a 'property' right. He earns substantial income for endorsement of many products. The contention is that this defendant should not be permitted to use his name or photograph without his written consent and without remuneration to him. Plaintiff states that in 1972 his commercial endorsements brought him income 'in excess of several hundred thousand dollars.' 'His grievance is not the invasion of his 'privacy'--privacy is the one thing he did not want, or need, in his occupation.' (Concurring opinion, Desmond, J., in Gautier Pro-Football, Inc., 304 N.Y. 354, 361, 107 N.E.2d 485, 489.) In that case it was pointed out that '(c)laims based on use of a name or a picture 'for advertising purposes' * * * have received much more liberal treatment than those grounded on use 'for purposes of trade'.' (Gautier v. Pro-Football, Inc., 278 App.Div. 431, 434, 106 N.Y.S.2d 553, 556.)

In connection with advertising, the Courts of this State have held that incidental use of a name or likeness is not in contravention of the statute (Merle v. Sociological Film Corp., 166 App.Div. 376, 152 N.Y.S. 829; Fleischer v. W.P.I.X., Inc., 30 Misc.2d 17, 213 N.Y.S.2d 632; Stillman v. Paramount, 1 Misc.2d 108, 147 N.Y.S.2d 504 mod. 2 A.D.2d 18, 153 N.Y.S.2d 190; Moglen v. Varsity Pajamas, 13 A.D.2d 114, 213 N.Y.S.2d 999; Humiston v. Universal Film Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752; cf. Sidis v. F.R. Pub. Corp., 113 F.2d 806, 810, cert. denied 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462; Booth v. Curtis Publishing Co., 15 A.D.2d 343, 223 N.Y.S.2d 737, affd. 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812; Hofstadter and Horowitz, 'The Right of Privacy,' pages 212, et seq.). It is the Booth case, supra, on which defendant mainly relies. In that case, Holiday Magazine had published a news article about a resort in the West Indies, accompanied by photographs of prominent guests. The plaintiff, Shirley Booth, the well-known actress, was photographed without objection, her picture appeared in the magazine and was republished six months later as part of an advertisement for Holiday. The Appellate Division held that there is no violation of the statute if the name and photograph are limited to establishing the news content and quality of the media:

'Consequently, it suffices here that so long as the reproduction was used to illustrate the quality and content of the periodical in which it originally appeared, the statute was not violated, albeit the reproduction appeared in other media for purposes of advertising the periodical.' (15 A.D.2d p. 350, 223 N.Y.S.2d p. 744.)

This was the extreme limit of 'incidental use' and predicated upon the theory that the statute was not violated by a true and fair presentation in the news or from 'incidental advertising' of the news medium in which she was properly and fairly presented.

There was a strong dissenting opinion by Justice Eager (p. 353, 223 N.Y.S.2d p. 747) based on the case of Flores v. Mosler Safe Co., 7 N.Y.2d 276, 196 N.Y.S.2d 975, 164 N.E.2d 853. However, as pointed out by Justice Breitel (now Chief Judge of the Court of Appeals), the Flores case involved the advertising for sale of defendant's products. It was a use for trade purposes and a classic example of collateral use. It was not a use incidental to the dissemination of news. The Booth decision, supra, emphasizes that the statute should be interpreted realistically, giving effect to the purpose as well as the language of the statute (Booth v. Curtis, supra, 15 A.D.2d at p. 347, 223 N.Y.S.2d 907; Humiston v. Universal Film Mfg. Co., supra; Dallesandro v. Holt & Co., 4 Ad.2d 470, 166 N.Y.S.2d 805; Oma v. Hillman Periodicals, 281 App.Div. 240, 118 N.Y.S.2d 720; Wallach v. Bacharach, 192 Misc. 979, 80 N.Y.S.2d 37, affd. 274 App.Div. 919, 84 N.Y.S.2d 894; Koussevitzky v. Allen, Towne & Health, 188 Misc. 479, 485, 68 N.Y.S.2d 779, 784, affd. 272 App.Div. 759, 69 N.Y.S.2d 432; cf. Sidis v. F.R. Pub. Corp., supra).

This plaintiff raises the point that the defendant's advertisement was not an incidental use but became a collateral use with the passing of time, the makeup of the advertisements, the prominent use of plaintiff's name, the superimposed wording and the accompanying copy. He insists that these raise questions of fact that preclude summary judgment.

Photographs of Joe Namath appeared many times on the cover and in stories published by the defendant from July, 1965 through October, 1972. He admits that these were newsworthy and does not object to them. He does object to the use of his name and likeness in promotional material between September and December, 1972. In the defendant's promotional material, plaintiff's photograph was printed adjacent to a subscription application for Sports Illustrated. In most instances promotional material appeared alongside or below his picture. Magazines, popular with the male reader, included the words, 'How to get Close to Joe Namath'. In the publications read mostly by female subscribers, the inscription was, 'The man you love loves Joe Namath'. Plaintiff intimates that it may have been unobjectionable to him if they had substituted the word 'football' where his name appeared. There is nothing degrading, derogatory or untruthful about the copy. The plaintiff does not doubt his popularity or newsworthiness or that the statement was fair comment. Admittedly, it was used to stimulate subscriptions but this is permissible (Rand v. Hearst, 31 A.D.2d 406, 298 N.Y.S.2d 405, affd. 26 N.Y.2d 806, 309 N.Y.S.2d 348, 257 N.E.2d 895), and...