Rejent v. Liberation Publications, Inc.

• Decision Date: 12 May 1994
• Citation: 197 A.D.2d 240,611 N.Y.S.2d 866
• Parties: , 22 Media L. Rep. 1826 James M. REJENT, Plaintiff-Respondent, v. LIBERATION PUBLICATIONS, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 866

611 N.Y.S.2d 866

197 A.D.2d 240, 22 Media L. Rep. 1826

James M. REJENT, Plaintiff-Respondent, v. LIBERATION PUBLICATIONS, INC., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 12, 1994.

Adam M. Cohen, of counsel (Donald F. Schneider, with him on the brief, Feltman, Karesh, Major & Farbman, attorneys), for defendant-appellant,

Wayne O. Alpern, of counsel (Kornstein, Veisz & Wexler, attorneys), for plaintiff-respondent.

Before SULLIVAN, J.P., and CARRO, WALLACH, KUPFERMAN and ROSS, JJ.

SULLIVAN, Justice Presiding.

This appeal, from the denial of a motion to dismiss a cause of action for defamation as legally insufficient (CPLR 3211[a][7], presents the issue of whether an advertisement featuring a picture of plaintiff, a professional male model, is, as he contends, reasonably susceptible of the defamatory connotation that he is "sexually lustful, promiscuous and immoral" and, if it is, whether it is defamatory per se.

Defendant Liberation Publications, Inc., is the publisher of a magazine entitled The Advocate, "The National Gay and Lesbian News magazine", a publication advocating homosexuality and featuring sexually oriented material, including sexually explicit photographs of men. Liberation also published Lust--The Body Politic (Lust), a collection of photographs of naked, sexually aroused men engaged in explicit and autoerotic acts. Plaintiff brought this action for invasion of privacy (Civil Rights Law §§ 50, 51) and defamation arising out of Liberation's allegedly unauthorized publication in The Advocate of plaintiff's photograph, for which he, admittedly, voluntarily posed, advertising Lust. Plaintiff's picture shows him, on a leopard skin couch, bare from the waist up, cigarette dangling from his lips, hair tousled, holding his crotch area with both hands, one atop the other. The advertisement stated:

A PHOTO SHOWCASE FROM THE EDITORS OF THE ADVOCATE

Lust is swirling and seething, lithe and languid, omnipresent and omnipotent.

Lust in the 90's--tough, humorous, unrelenting and romantic.

LUST [--] THE BODY POLITIC is 128 pages of the most exquisite color and black-and-white photographs from the world's hottest and newest photographers with an introduction by one of America's most controversial authors, Dennis Cooper. Flawlessly printed on 11 x 15 heavyweight paper, LUST--THE BODY POLITIC is the perfect gift. Order now to guarantee delivery for yourself, for a friend. LUST--when a body is much more than a work of art.

Beginning on or before October 8, 1991, plaintiff's photograph appeared in this advertisement in at least four issues of The Advocate. According to plaintiff, he never consented to this or any other commercial use of his photograph by Liberation; nor did he ever sign any written release. He alleges that he repeatedly and vigorously protested the use of his photograph but that, despite his objections, Liberation continued to publish the advertisement and commercially exploit his picture. In this action plaintiff seeks both compensatory and punitive damages based on Liberation's deliberate and repeated unauthorized use of his photograph, which, he contends, in the context of the advertisement in which it appears, is defamatory per se.

The IAS court denied defendants' motion to dismiss both the invasion of privacy and defamation causes of action. Only the denial of the dismissal of the defamation action is appealed. We affirm.

It is, of course, the court's responsibility to determine whether a publication is susceptible of the defamatory meaning ascribed to it. (Tracy v. Newsday, Inc., 5 N.Y.2d 134, 136, 182 N.Y.S.2d 1, 155 N.E.2d 853.) A court should not strain to place a particular construction on the language complained of. (James v. Gannett Co., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834.) By the same token "courts [should] not strain to interpret [words] in their mildest and most inoffensive sense to hold them nonlibelous." (Mencher v. Chesley, 297 N.Y. 94, 99, 75 N.E.2d 257; see, Schermerhorn v. Rosenberg, 73 A.D.2d 276, 283, 426 N.Y.S.2d 274.)

The allegations of the complaint are, in our view, sufficient to state a cause of action for defamation based on the publication of plaintiff's picture in a sexually suggestive manner allegedly falsely implying that he is sexually lustful and promiscuous, that he advertises erotic photographs and that he endorses and subscribes to the sexual attitudes and views expressed in Liberation's publications. ¹ The sexual overtones of his photograph are underscored by the text of the advertisement, which, in part, states, "Lust is swirling and seething, lithe and languid, omnipresent and omnipotent" and "Lust--when a body is much more than a work of art."

In this context, the word lust carries a negative overtone of sexual promiscuity. Given the strong implication of the language used, the suggestive nature of plaintiff's picture and the obviously provocative collection of photographs his picture was exploited to advertise, Liberation's advertisement is reasonably susceptible of the defamatory connotation that plaintiff is lustful and sexually promiscuous.

Moreover, since it is unlikely that the ordinary reader would confine his reading to the single advertisement at issue, plaintiff's picture and the accompanying advertisement must be considered within the context of the entire edition of The Advocate in which it appeared. In Palmisano v. Modernismo Publications, Ltd., 98 A.D.2d 953, 954, 470 N.Y.S.2d 196, for example, the court, in affirming the denial a motion to dismiss a defamation claim based on the publication of the plaintiff's picture in an advertisement appearing in a magazine geared to homosexuals, noted, "Considering the advertisement within the context of the entire magazine [citations omitted], plaintiff has sufficiently alleged a cause of action against both defendants for libel". (See, also, Silsdorf v. Levine, 59 N.Y.2d 8, 13, 462 N.Y.S.2d 822, 449 N.E.2d 716, cert. denied, 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111).

As can be seen from the representative excerpts from The Advocate contained in the record, plaintiff's picture was surrounded by innumerable other suggestive advertisements of live sex videos, telephone sex talk, erotic devices and sexual literature. Several of the advertisements depict naked men with unzipped pants grasping their genitals and often contain provocative language such as "Transvestites Transexual Crossdressers Party Line", "HOT MEN Are Waiting To Meet You", "Tease Me Some & Make Me ... MOAN ", and "Gorgeous Men Need Lovin'." The context in which plaintiff's picture appears in The Advocate, in the midst of these other advertisements, only heightens the allegedly false and defamatory impression that plaintiff is sexually lustful and promiscuous.

In arguing that the Lust advertisement is not susceptible of a defamatory meaning, Liberation would have the court adopt a narrow interpretation of the word "lust", one that does not...