People v. Scribner's Sons

Decision Date29 April 1954
Citation205 Misc. 818
PartiesThe People of the State of New York, Plaintiff,<BR>v.<BR>Charles Scribner's Sons and Columbia Pictures Corporation, Defendants.
CourtNew York District Court

Harry Ander for Joseph A. Maggio, complainant.

Horace S. Manges for Charles Scribner's Sons, defendant.

Myles J. Lane for Columbia Pictures Corporation, defendant.

DUNAIF, M.

The defendant, Charles Scribner's Sons, is the publisher of a book by one James Jones, entitled "From Here to Eternity," which has had a wide and successful circulation. The book contains the following statement by the author:

"Special Note
"This book is a work of fiction. The characters are imaginary, and any resemblance to actual persons is accidental. However, certain of the stockade scenes did happen. They did not happen at the Schofield Barracks Post Stockade but at a post within the United States at which the author served, and they are true scenes of which the author had first-hand knowledge and personal experience."

Thereafter, the defendant, Columbia Pictures Corporation, purchased the motion picture rights in the book and in 1953 released a motion picture based thereon. The contract of purchase contained the following provision: "The Owner (author Jones) warrants and represents that * * * the use, reproduction, performance or exhibition of such work, or any part thereof, in the exercise of the right herein conveyed will not in any way infringe upon any rights of any party whomsoever, or constitute a libel or defamation of, or invasion of the rights of privacy of any party whomsoever."

James Jones, the author, was in Company F, 27th Infantry Regiment of the United States Army, stationed in Hawaii during the period just before Pearl Harbor, which is the period covered by his book. He was the company clerk. Also in that company at that time was the complainant, Joseph A. Maggio, whose full name is Joseph Anthony Maggio.

This work of fiction tells a story about persons who were in the Army stationed in Hawaii during the period referred to. One of the characters portrayed is called "Angelo Maggio." "Angelo" and "Maggio" are also terms used at various times in referring to this character. The book does not place this character in Company F, nor in the same battalion in which Jones and Maggio actually served. Nor does it in anywise portray acts which were actually performed by the complainant. Except for the alleged identity of name, none of the things which the character "Angelo Maggio" does in the book, nor any of the details of the background and life of "Angelo Maggio" as set forth in the book, are claimed by the complainant to be a portrayal of him or of his life and do not in anywise point to or identify him as the person intended or referred to.

The complaints against these defendants are based on section 50 of the Civil Rights Law of the State of New York which reads as follows: "A person, firm or corporation that uses for advertising purposes, or for purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."

In support of these complaints, the complainant offered testimony that he was in the same company as the author, which company was stationed in Hawaii during the period covered by the book; that the author was the company clerk and was familiar with the names of the soldiers in the company and that several of the other names used incidentally in the book were the names of other soldiers in the company, although their correct full names were not used but only their last names with a different first name or nickname or no first name at all. The motion picture is less detailed than the book in regard to the character "Angelo Maggio" and fewer of these other soldiers are referred to.

A witness, Martuscelli, who was also in Company F at that time, testified that he called the complainant by the nickname "Angelo", but in response to a question by the court whether anybody else knew complainant as Angelo there, the witness answered in the negative.

It is generally understood that novels are written out of the background and experiences of the novelist. The characters portrayed are fictional, but very often they grow out of real persons the author has met or observed. This is so also with respect to the places which are the setting of the novel. The end result may be so fictional as to seem wholly imaginary, but the acorn of fact is usually the progenitor of the oak, which when full grown no longer has any resemblance to the acorn. In order to disguise the acorn and to preserve the fiction, the novelist disguises the names of the actual persons who inspired the characters in his book. Since a novel is not biography, the details of the character's life and deeds usually have, beyond possible faint outlines, no resemblance to the life and deeds of the actual person known to the author. Thus, the public has come to accept novels as pure fiction and does not attribute their characters to real life. So long as the author does not use the true name of the character he may have had in mind, there is no basis for complaint. (Toscani v. Hersey, 271 App. Div. 445.) If he does use the true name of such character however, in a work sufficiently biographical though essentially fiction, he may violate section 50 of the Civil Rights Law even though the use of such name in a biography or news report is not such a violation (Binns v. Vitagraph Co., 210 N.Y. 51; Krieger v. Popular Publications, 167 Misc. 5).

The book and the picture "From Here to Eternity" do not purport to relate the actual life and deeds of Joseph A. Maggio. The details or events in the life of the fictional character concededly never happened to Joseph A. Maggio. Thus the person, if any, who may have given inspiration to the character "Angelo Maggio" in the author's brain was not Joseph A. Maggio. In searching for a name to give this fictional character, the author selected "Angelo Maggio." If he had not used the surname "Maggio" but some other name, the complainant could not by any stretch of the imagination have implied any identity of the character with himself.

We are thus required to determine whether by proof of the use of the name "Angelo Maggio" in a setting in the Army in Hawaii just before Pearl Harbor, together with an incidental reference, also by partial use of the last name only, to several other soldiers in the same outfit, the complainant, Joseph A. Maggio, has made out a violation of section 50 against these defendants.

Section 50, being penal in nature; must be strictly construed (Binns v. Vitagraph Co., 210 N.Y. 51, 55, supra; City of New York v. Fredericks, 206 N.Y. 618, 623) and "purely statutory offenses" cannot be established by implication and acts otherwise innocent and lawful do not become crimes unless there is a clear and positive expression of the legislative intent to make them criminal (People v. Phyfe, 136 N.Y. 554, 559).

While section 50 prohibits the use of the name of any living person...

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13 cases
  • Time, Inc v. Hill, 22
    • United States
    • U.S. Supreme Court
    • January 9, 1967
    ...only two cases of criminal proceedings under the statute and both resulted in dismissal. People, on Complaint of Maggio v. Charles Scribner's Sons, 205 Misc. 818, 130 N.Y.S.2d 514 (1954); People, on Complaint of Stern v. Robert R. McBride & Co., 159 Misc. 5, 288 N.Y.S. 501 (1936). There is ......
  • Champion v. Take Two Interactive Software, Inc.
    • United States
    • New York Supreme Court
    • May 10, 2019
    ..., supra). It must be the "true" name of the claimant, not a business, partnership or assumed name (see People v. Charles Scribner's Sons , 205 Misc. 818, 822, 130 N.Y.S.2d 514 [Mag. Ct. Kings Cty. 1954] ). Nicknames also fail to qualify for protection under the statute as a matter of law (s......
  • Cohen v. Herbal Concepts, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • March 8, 1984
    ...or "clear representation" consistently set forth by the courts as a prerequisite to sustaining 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 enunciate......
  • DeClemente v. Columbia Pictures Industries, Inc., CV 91-3256 (ADS).
    • United States
    • U.S. District Court — Eastern District of New York
    • July 29, 1994
    ...under section 51 as a private name, because of the "need for protection against unauthorized advertising."); People v. Charles Scribner's Sons, 205 Misc. 818, 130 N.Y.S.2d 514, 518 (Brooklyn County Magistrate Court, 1954) (stage or theatrical name which has become known to the public and id......
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