Rosemont Enterprises, Inc. v. Random House, Inc.

• Decision Date: 29 March 1968
• Citation: 58 Misc.2d 1,294 N.Y.S.2d 122
• Parties: ROSEMONT ENTERPRISES, INC., Plaintiff, v. RANDOM HOUSE, INC. and John Keats, Defendants.
• Court: New York Supreme Court

Page 122

294 N.Y.S.2d 122

58 Misc.2d 1

ROSEMONT ENTERPRISES, INC., Plaintiff, v. RANDOM HOUSE, INC. and John Keats, Defendants.

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

March 29, 1968.

Davis & Cox, New York City (Lola S. Lea, New York City, of counsel), for plaintiff.

Weil, Gotshal & Manges, New York City (Horace S. Manges, Edward C. Wallace, Marshall C. Berger, New York City, of counsel), for defendant Random House, Inc., and co-counsel for defendant John Keats.

HARRY B. FRANK, Justice.

Defendants Random House, Inc. and John Keats, the publisher and author respectively of a biography entitled 'Howard Hughes', seek summary judgment dismissing the complaint.

The plaintiff Rosemont Enterprises, Ins., is identified in the complaint as a corporation engaged 'in the business of developing and acquiring literary and dramatic properties and rights, biographical material and the right to use such material * * * for purposes of trade, and producing, publishing and otherwise using the same for profit'. The basis for the present action is an alleged agreement between Rosemont and Howard Hughes, characterized in a related copyright litigation as a person 'who by reason of his remarkable exploits and achievements, primarily in the aviation and motion picture fields, had become quite a public figure' (see Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 305, C.C.A.2nd).

While the findings with respect to the temporary injunction sought in the aforenoted faderal copyright infringement action are not here binding (see Walker Mem. Baptist Church v. Saunders, 285 N.Y. 462, 474, 35 N.E.2d 42, 47), the factual background gleaned from that proceeding is helpful in understanding the present controversy.

From the opinions in that case it appears that Random House began preparations for its biography in September 1962 and that Hughes, who (p. 309) 'has almost an obsession as to his privacy,' learned of the project in 1965 resulting in a warning to Random House that he was opposed to the biography and (p. 305) 'would make trouble if the book was published.' Shortly thereafter, in September 1965, the plaintiff corporation, Rosemont, was organized by close associates of Hughes for the ostensible purpose of preparing an authorized biography of his life. Its subsequent operations, however, indicate that its primary function was to prevent the publication of biographical material which Hughes could not control and, in particular, the Random House biography. An example of its activities in furtherance of such goal was its acquisition of May 20, 1966, of copyrights on a series of articles about Hughes which had appeared in Look Magazine in early 1954, and its institution of the copyright infringement action a scant 6 days thereafter 'not with a desire to protect the value of the original writing but to suppress the Random House biography because Hughes wished to prevent its publication.' (See Rosemont Enterprises, Inc. v. Random House, Inc., supra, 366 F.2d, concurring opinion at p. 313.)

As Mr. Justice Moore, speaking for the Court, so aptly phrased it, (p. 305) Hughes has 'a publicized passion for personal anonymity' and it is his predilection therefor which is at the heart of the present controversy as well as its related litigations.

The complaint in the present action alleges that plaintiff corporation entered into an agreement with Hughes whereby it acquired 'the sole and exclusive world-wide rights to exploit commercially in any manner the name, personality, likeness or the life story or incidents in the life of Hughes' and tht such exclusive rights 'have unique and great commercial value.'

Predicated upon its rights under such agreement, plaintiff asserts three causes of action.

The first cause of action alleges that defendants entered into a scheme 'to exploit commercially the name, likeness and personality of Hughes without the consent of either Hughes or plaintiff and to capitalize upon the achievements of Hughes and upon his life story or incidents therein' and that in furtherance of said scheme 'and solely for the purposes of trade, and * * * creating a profit for themselves' defendants have agreed to write and publish 'a book which would not be written or published in order to disseminate newsworthy information but * * * in such manner as to use and exploit commercially the name, likeness and personality of Hughes'. Plaintiff further complains that 'defendants have not made a Bona fide effort to assemble facts for the purpose of informing the public as to Hughes or his life story', followed by allegations that defendants have chosen to ignore plaintiff's exclusive rights and are preparing a book for publication and sale to the general public in the immediate future and that any such book 'would impair the market for an authoritative biography of Hughes' and would otherwise interfere with and infringe upon the valuable rights plaintiff acquired under its agreement with Hughes and its valuable property interest therein.

The second cause of action charges that defendant's book violates Hughes' right of privacy under Article 5 of the Civil Rights Law with resultant injury to plaintiff's rights.

In the third cause of action a declaratory judgment is sought in the premises.

The precise nature of the first cause of action is somewhat obscure and understandably prompted the District Court Judge in the copyright suit to observe that the issues herein 'are not at all clear'. Indeed, such first cause of action seems to consist of a combination of diverse allegations relating to several separate and distinct legal concepts which are all woven together into some not easily decipherable hybrid.

Thus the various allegations condemning defendants' publication, at all, of a book about Hughes are on the one hand couched in terms of defendants' scheme 'to exploit commercially' for 'profit' and 'solely for the purposes of trade' which appears to fall within the language of the New York 'privacy statute', and on the other hand stress is placed upon the appropriation or infringement of plaintiff's 'valuable property interest' of 'great commercial value' in its exclusive rights to exploit commercially the name, personality and likeness of Hughes which would have relevance to the separately recognized 'right of publicity.' (See Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866; Gordon, Right of Property in Name, Likeness, Personality and History, 55 Northwestern Univ.L.R. 553, at pgs. 569--571.)

To the extent that the first cause of action seeks relief predicated upon either Hughes' 'right of privacy' or his 'right of publicity' it is fatally defective.

While considerations of social desirability may in the past have prompted a liberal construction of our statutorliy derived 'right of privacy' despite troublesome confrontations with constitutionally protected areas of speech and press, the permissible limits of such 'right' have now been clearly and decisively drawn. (See Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456).

A public figure, whether he be such by choice or involuntarily, is subject to the often-searching beam of publicity and, in balance with the legitimate public interest, the law affords his privacy little protection (Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 328, 274 N.Y.S.2d 877, 879, 221 N.E.2d 543, 545).

That Howard Hughes falls within the category of a public figure is not seriously open to dispute. His actions and dealings have engendered considerable public interest and he has long been a newsworthy personality. (See, Rosemont Enterprises, Inc. v. Random House, Inc., supra, 366 F.2d 303, 309). Indeed, his standing as a public figure has been admitted by plaintiff's counsel in depositions before trial, and the allegations of the complaint here in issue make his status in that regard clear.

The dominance of the public interest in obtaining information about public figures received early recognition in the construction of the New York privacy statute and publications of factual or biographical information about such persons have usually been held to be outside the protection of the statute. (See, for example, Jeffries v. New York Evening Journal Pub. Co., 67 Misc. 570, 124 N.Y.S. 780; Sidis v. F--R Publ. Corp., 113 F.2d 806; Molony v. Boy Comics Publishers, 277 App.Div. 166, 98 N.Y.S.2d 119.)

That the New York statute gives a public figure no right to suppress truthful accounts of his life is now settled in the most unequivocal terms, both by the Court of Appeals of this state and the United States Supreme Court (Spahn v. Messner, Inc., supra, 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221...