Russell v. Marboro Books

• Decision Date: 12 January 1959
• Citation: 183 N.Y.S.2d 8,18 Misc.2d 166
• Parties: Edward T. RUSSELL and Mary Jane Russell, Plaintiffs, v. MARBORO BOOKS, Friend, Reiss, McGlone Advertising; Springs Mills, Inc.; The Springs Cotton Mills; C. L. Miller Company, Inc.; Promenade Magazines, Inc.; Cowles Magazines, Inc.; The Curtis Publishing Company; Curtis Circulation Company; John Doe (the name 'John Doe' being fictitious, the persons intended being those associated in interest with the foregoing defendants or any of them in the transactions herein complained of), Defendants.
• Court: New York Supreme Court

Page 8

183 N.Y.S.2d 8

18 Misc.2d 166

Edward T. RUSSELL and Mary Jane Russell, Plaintiffs, v. MARBORO BOOKS, Friend, Reiss, McGlone Advertising; Springs

Mills, Inc.; The Springs Cotton Mills; C. L. Miller Company,

Inc.; Promenade Magazines, Inc.; Cowles Magazines, Inc.; The

Curtis Publishing Company; Curtis Circulation Company; John

Doe (the name 'John Doe' being fictitious, the persons

intended being those associated in interest with the

foregoing defendants or any of them in the transactions

herein complained of), Defendants.

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

Jan. 12, 1959.

Emily Marx, New York City (Thornton C. Land, New York City, of counsel), for plaintiffs.

Tell, Cheser, Werner & Breitbart, New York City (Solomon M. Cheser, and Seymour Lefkowitz, New York City, of counsel), for defendants Marboro Books and Friend, Reiss & McGlone, Inc.

Marco J. Shemaria, New York City (Eugene Feldman, New York City, on the brief), for defendants Springs Mills, Inc., The Springs Cotton Mills, C. L. Miller Co., Inc., Promenade Magazines, Inc., Cowles Magazines, Inc., The Curtis Pub. Co., and Curtis Circulation Co.

Gray & Grossman, New York City (Herman A. Gray, New York City, of counsel), amicus curiae, for the American Society of Magazine Photographers, Inc.

A. Lincoln Lavine, New York City, amicus curiae, for the Joint Ethics Committee of Society of Illustrators, the Art Directors Club of New York, and the Artists Guild of New York.

MATTHEW M. LEVY, Justice.

In this action, there are two plaintiffs, wife and husband. There are nine defendants, but for present purposes they can be placed and shall be considered in three groups: Marboro Books and Friend, Reiss, McGlone Advertising, both hereinafter jointly referred to as Marboro; Springs Mills, Inc., The Springs Cotton Mills, and C. L. Miller Company, Inc., hereinafter referred to collectively as Springs; and Promenade Magazines, Inc., Cowles Magazines, Inc., The Curtis Publishing Company, and Curtis Circulation Company, all together hereinafter referred to as Magazines. ('John Doe', fictitious, is also named as a defendant, the persons intended being those associated in interest with the foregoing defendants, or any of them, in the transactions complained of. For present purposes, 'John Doe' may be and is ignored.) The amended complaint now under study contains 57 paragraphs and a number of exhibits, and sets forth sixteen causes of action. The pleading alleges a count by the plaintiff-wife for breach of contract, a cause for inducement of such breach, counts based jointly on violation of the right to privacy as assured by the Civil Rights Law and on violation of the common-law right of freedom from defamation, and causes grounded solely in libel. Loss-of-consortium claims are also pleaded on behalf of the plaintiff-husband. And, finally, a plea for a declaratory judgment is presented by the wife. All of the causes of action are concerned with and rest upon the arrangements between the defendants Marboro (engaged in the business of conducting bookstores and selling books) and one Avedon (a high-fashion photographer, not a party to this suit) and their agreements with the female plaintiff (a model), the 'model release' executed by her, and the claimed wrongful use by the defendants of Avedon's art work, including the model's photograph, in connection with the advertising of the defendants Springs (engaged in the manufacture and sale of bedsheets).

The initial complaint in this action was attacked by the defendants for insufficiency upon its face, as defensively vulnerable because of release and for impropriety in form and content. Without passing upon the merits of the motions, my learned colleague at Special Term dismissed the pleading for the reason that, in violation of section 241 of the Civil Practice Act, it did not contain a plain and concise statement of the material facts. Leave was granted the plaintiffs to replead. Motions have now been made by the respective defendants attacking the amended complaint under section 241 and also in pursuance of rules 102, 103, 106(4) and 107(6) of the Rules of Civil Practice, the same objections being raised as on the prior application. No doubt, there are allegations in the amended complaint that are not in the conventional or traditional form, and that is true, too, of some aspects of the methodology of the pleading (e. g., paragraph 5, incorporating Exhibit A, naming and describing the defendants in the action, and the 'Notice to Defendants' annexed thereto). Indeed, in some respects what is set forth clearly runs afoul of rules 102 and 103. I have, nevertheless, come to the conclusion that I should, wherever possible, dispose of the issues as a matter of substance, rather than as a matter of form. And this I shall endeavor to do, notwithstanding that the unorthodox style in which some of the allegations of the present pleading are couched may make this procedure somewhat more than passingly difficult. The plaintiffs have on their own account moved for judgment in their favor against the defendants sued in certain causes of action, on the ground that the attack made by the defendants upon these causes was frivolous.

The first cause of action is asserted by the plaintiff Mary Jane Russell alone and against the defendants Marboro only. Since many of the allegations here pleaded are reiterated in later counts, I deem it necessary to give a rather complete statement of the cause as set forth in the amended complaint:

The plaintiff (a college graduate, the wife of the co-plaintiff and the mother of their young sons) is a well-known professional high-fashion photographic model, portraying before the cameras of the leading fashion photographers the intelligent, refined, well-bred, pulchritudinous, ideal young wife and young mother, in artistice settings and socially-approved situations. Her earnings are among the highest in her vocation. Her high professional standing and concomitant earning power have been achieved by meticulous adherence to the highest standards of professional conduct and good taste for herself and for her clients. The plaintiff's professional services and photographs have never been available for purposes of advertising or trade to anyone who resorts to bad taste, immodesty, double entendre or similar techniques in his appeals for public attention. The use of a photograph of the plaintiff by an advertiser known to be an adherent to such techniques connotes that the plaintiff had consented to such use. Such consent, if given by the plaintiff, would ruin her professional standing and earning power and cause her to be shunned by family and friends and in the community in which she lives and works.

One Richard Avedon is a well-known and highly-respected fashion photographer, engaged in the profession of creating artistic photographic illustrations for commercial advertising. The defendants Marboro are in the business of conducting a number of bookstores. In December 1954, Avedon and Marboro entered into an oral contract, in which, for the sum of $500 to be paid by Marboro to Avedon, he agreed to make, develop and deliver to Marboro a photographic illustration of Marboro's educational books, under a license to Marboro to use such art work in a full-page advertisement in one issue of The New York Times and as posters in Marboro's bookstores containing reading matter and illustrations limited to Marboro's educational books. Marboro authorized Avedon to contract on Marboro's behalf for the rental by him of props and the engagement by him of the professional services of the models needed for such production. Marboro agreed not to violate the license or use heretofore referred to. In implementation of that agreement, Avedon and Marboro entered into an oral contract with the plaintiff to be the female model in the illustration. It was agreed that there would be a male model in an adjoining bed and that each would be pictured reading an educational book. The plaintiff agreed to execute a written consent to Marboro which would authorize the use of her image as provided in the contract and not otherwise. Marboro agreed that the illustration would appear only in the advertisement and posters above a caption such as 'For People Who Take Their Reading Seriously'. Avedon and Marboro agreed to use the eilm, art work and the plaintiff's written consent solely in performance of their contract; and, since the subject matter was a so-called 'bed picture'--with its potential of injury to the plaintiff--it was recognized that, if they were used in violation of the contract, the plaintiff might be caused injury to her reputation, person and professional standing. Thereafter, and in December, 1954, the plaintiff and Avedon duly performed, the result being a Marboro full-page book advertisement, which included the plaintiff's picture, in The New York Times and in posters in Marboro bookstores.

In May, 1955, Marboro falsely represented to Avedon that the photograph negative was needed by Marboro for further bookstore posters. Thereupon, Avedon delivered the film to Marboro, who, for $200, delivered the film and art work to the defendants Springs. These defendants, for many years, have been engaged in selling bedsheets, and, in aid of the disposition of their product, have utilized extensive national advertising which was offensive and in bad taste to such an extent that they have been unable to obtain for their bedsheet advertising photographic illustrations created and participated in by persons of the professional stature and talents of the plaintiff and of Avedon. In June, 1955, Springs retouched and altered the negative and the art work so as to place the plaintiff in the company of an elderly male reading a book by Springs entitled 'Clothes Make the Man'. This book had for some years been nationally advertised to contain reading matter and illustrations so vulgar in content that...