Negri v. Schering Corporation, 69 Civ. 2513.

• Decision Date: 30 October 1971
• Docket Number: No. 69 Civ. 2513.,69 Civ. 2513.
• Parties: Pola NEGRI, Plaintiff, v. SCHERING CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

333 F. Supp. 101

Pola NEGRI, Plaintiff, v. SCHERING CORPORATION, Defendant.

No. 69 Civ. 2513.

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

October 30, 1971.

Fitelson & Mayers, New York City, for plaintiff; Harold J. Sherman, New York City, of counsel.

Coudert Brothers, New York City, for defendant; Joseph A. McManus, Gordon T. King, New York City, of counsel.

OPINION

FREDERICK van PELT BRYAN, District Judge:

In this diversity action, brought under Sections 50 and 51 of the New York Civil Rights Law, plaintiff Pola Negri, the motion picture actress, seeks damages from defendant Schering Corporation for using a photograph of her without her consent in an advertisement for defendant's pharmaceutical product, Polaramine Repetabs. Plaintiff has moved pursuant to Rule 56, Fed.R.Civ.P. for summary judgment on the issue of liability only. Defendant has cross moved for summary judgment.

Section 50 of the New York Civil Rights Law provides:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person * * * is guilty of a misdemeanor.

8 McKinney's Consol.Laws of N.Y., c. 14, § 50. Section 51 provides that any person whose name or picture is so used may sue and recover damages for any injuries sustained by reason of such use and that if the defendant knowingly used the person's name or picture, the jury may award exemplary damages.

The advertisement which forms the basis of the action is a double page black and white spread 16½ inches wide and 11 inches long. It was published in the May, 1969 issue of MD magazine, with a circulation of some 177,000, and six other magazines with combined circulation in excess of 175,000. The magazines were widely circulated in various states, including New York, and abroad, largely among members of the medical profession.

Two-thirds of the two-page spread is taken up with a large full-length photograph of Miss Negri as she appeared in the silent motion picture "Bella Donna", her first in the United States, and of Conway Tearle, her leading man in that picture. Miss Negri, in costume of the period, is shown standing looking down at Conway Tearle, seated cross-legged, dressed in turban and gown, with a somewhat bewildered-looking female in oriental dress sprawled across his lap. Printed words, in large letters, emerge from Tearle's mouth, addressed to Miss Negri, saying, "She has what they call antihistamine daze, dear." In response, printed words emerge from Miss Negri's mouth, in similar type, saying, "Has she tried POLARAMINE capitalized— dexchloreniramine maleate?"

In the righthand third of the two-page spread is a promotional screed of several paragraphs extolling the alleged superior virtues of Schering Polaramine Repetab tablets over competing products. Under the screed and Miss Negri's picture, on the righthand page of the spread, is the legend, "Allergy control with infrequent antihistamine daze" and under that, in large capital letters, "POLARAMINE REPETABS 6 MG."

In May, 1969, the advertisement in MD magazine was shown to Miss Negri in New York, while she was here on a visit from her home in Texas. She later learned of the publication in six other magazines. She seeks compensatory damages for severe emotional and mental distress and humiliation; harm to her reputation; unjust appropriation of her rights of publicity and defendant's unjust enrichment thereby; loss of income from other legitimate promotional opportunities; and punitive damages. We are concerned here only with the question of liability.

Schering admits that it caused the advertisement to be published in these seven magazines, and that this was without Miss Negri's consent or authorization. Nevertheless, Schering takes the position that it has no liability and is entitled to summary judgment or, in any event, that plaintiff has not shown sufficient to entitle her to summary judgment on the issue of liability. Schering argues that recovery is precluded under the New York Civil Rights Law because (1) the photograph as it appeared in the advertisement was not a recognizable likeness of Pola Negri and (2) that the photograph of Miss Negri in the advertisement was not used for advertising purposes or purposes of trade. Both of these arguments are devoid of merit.

(1)

It is plain that a picture used for advertising purposes is not actionable under the statute unless it is a recognizable likeness of the plaintiff. The picture used must be a clear representation of the plaintiff, recognizable from the advertisement itself. See People on Complaint of Maggio v. Charles Scribner's Sons, 205 Misc. 818, 130 N.Y.S.2d 514 (1954); Levey v. Warner Brothers Pictures, Inc., 57 F.Supp. 40 (S.D.N.Y.1944); Loftus v. Greenwich Lithographing Co., 192 App.Div. 251, 182 N.Y.S. 428 (1920). See also Branson v. Fawcett Publications, 124 F.Supp. 429 (E.D.Ill.1954). Thus, where a group picture used for commercial purposes has been taken from so great a distance as to raise a question of the recognizability of any person in it, it has been held that a preliminary injunction need not be granted. Hayden v. Bristol Myers Co., 159 (17) N.Y.L.J., Jan. 24, 1968, p. 16 col. 7 (Sup.Ct.).

But the Hayden case and others similar to it have no application whatever to the case at Bar. Pola Negri's picture, as used in the Schering advertisement, is an individual, full length likeness of her, approximately 9 inches high, with features that are quite clear and characteristic. It is a clear representation of the famous motion picture star, easily recognizable as a picture of her. For example, it was recognized by the physician and friend who brought the advertisement to her attention and by four others, who were even able to identify the film from which it was taken. If there were any doubts as to the recognizability of the photograph as that of Miss Negri, and there are none, the fact that she is shown recommending POLAramine to her leading man, Conway Tearle, whose picture is shown next to hers, plainly point toward recognition.

There is no necessity for reviewing in any detail Miss Negri's long and wellknown career in motion pictures. She starred in 40 silent films, both here and abroad. When sound came to the screen, she continued in talking pictures and starred in 10 feature talking films between 1931 and 1964. As late as 1968, one of her talking pictures was nationally televised. Another of her films was shown in 1970 at the National Gallery of Art, and others have been shown from time to time in revivals of film classics. Moreover, her autobiography, "Memoirs of a Star", was published by Doubleday in 1970. In May of that year it was reviewed in The New York Times Book Review, illustrated by photographs of her. Thereafter it went into a second printing. Through the long years of her career, she has, of course, been the subject of wide publicity and public comment.

None of this is or could well be controverted by the defendant. It is plain that, beyond her friends and acquaintances, Miss Negri's features were well known to millions of persons comprising her motion picture public. It may well be that since a number of years have elapsed since Miss Negri was at the height of her career, many persons who have seen her films are by no means as young as they once were and memories undoubtedly grow dim. But I fail to see that this is any reason to suppose that many of Miss Negri's public would not still easily recognize her as depicted in the Schering advertisement. In any event, the number of people who recognized the photograph in the advertisement as Miss Negri, while it may be relevant on the question of damages, is not material on the issue of liability. On that issue the question is whether the figure is recognizable, not the number of people who recognized it.

Schering, however, urges with some vigor that the photograph in its advertisement is not recognizable as Miss Negri. It urges that Miss Negri no longer looks as she did 40 years ago when the picture was taken and is indistinguishable from any "typical" star of the silent screen. It is suggested that Miss Negri and the films in which she starred are so obscure and forgotten that no one except a "most astute" film historian could conceivably associate the picture in the advertisement with her. In support of this suggestion an affidavit is submitted of a gentleman who admits to belonging in that category. He happens to be the man who wrote the rather laudatory review of her memoirs in the New York Times Book Review of May, 1970, in which he describes her as "a star and a great one at that" and refers to "her recent work in a Disney film."

Schering also lays emphasis on a comment by Miss Negri in her 1970 autobiography that when she returned to the United States in 1941, after a rather lengthy absence abroad, she was apprehensive lest she might not be remembered by her American...