Stephano v. News Group Publications, Inc.

• Decision Date: 20 December 1984
• Citation: 64 N.Y.2d 174,474 N.E.2d 580,485 N.Y.S.2d 220
• Parties: , 474 N.E.2d 580, 11 Media L. Rep. 1303 Tony STEPHANO, Respondent, v. NEWS GROUP PUBLICATIONS, INC., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 220

485 N.Y.S.2d 220

64 N.Y.2d 174, 474 N.E.2d 580, 11

Media L. Rep. 1303

Tony STEPHANO, Respondent, v. NEWS GROUP PUBLICATIONS, INC., Appellant.

Court of Appeals of New York.

Dec. 20, 1984.

Slade R. Metcalf, Howard M. Squadron and Eugenie C. Gavenchak, New York City, for appellant

A. Richard Golub and Gary S. Graifman, New York City, for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

The plaintiff, a professional model, claims that the defendant used his picture for trade or advertising purposes without his consent, and thus violated his statutory right to privacy (Civil Rights Law, § 51), by publishing a picture of him modeling a "bomber jacket" in a magazine article containing information regarding the approximate price of the jacket, the name of the designer, and the names of three stores where the jacket might be purchased. Plaintiff also claims that the defendant's conduct violated a common-law right of publicity. The trial court granted summary judgment to the defendant concluding that the article reported a newsworthy event of fashion news, and was not published for trade or advertising purposes. A divided Appellate Division, 98 A.D.2d 287, 470 N.Y.S.2d 377, reversed and denied summary judgment finding that factual questions were presented as to whether the defendant had used the plaintiff's picture for trade purposes and whether the article constituted an advertisement in disguise. The defendant has appealed by leave of the Appellate Division which certified a question as to the correctness of its order.

In the summer of 1981 the plaintiff agreed to model for an article on men's fall fashions. The photographic session took place on August 11, 1981. The defendant used two of the photographs taken during that session to illustrate an article entitled "Classic Mixes", which appeared under the heading "Fall Fashions" in the September 7, 1981 issue of New York magazine. Another photograph taken during the session was used, a week earlier, in the August 31, 1981 issue of New York magazine, in a column entitled "Best Bets". That column, a regular feature in the magazine, contains information about new and unusual products and services available in the metropolitan area. One of the items included in the August 31 column was a bomber jacket modeled by the plaintiff. The text above the picture states: "Yes Giorgio--From Giorgio Armani. Based on his now classic turn on the bomber jacket, this cotton-twill version with 'fun fur' collar features the same cut at a far lower price--about $225. It'll be available in the stores next week.--Henry Post Bomber Jacket/Barney's, Bergdorf Goodman, Bloomingdale's."

It is the plaintiff's contention that he agreed to model for one article only--the September 7, 1981 article on Fall Fashions--and that the defendant violated his rights by publishing his photograph in the August 31 "Best Bets" column. ¹ The complaint alleges two causes of action. First the plaintiff claims that the defendant violated his civil rights by using his photograph for trade or advertising purposes without his consent. In his second cause of action the plaintiff claims that the defendant's conduct "invaded plaintiff's right of publicity". On each cause of action the plaintiff seeks $350,000 in compensatory damages and an equal amount in exemplary damages.

The defendant's answer asserts several affirmative defenses. The primary defense is that the photograph and article relating to it involve matters of legitimate public interest and concern and thus do not violate the plaintiff's rights under the Civil Rights Law (§§ 50, 51), or any common-law right of publicity. The defendant also urged that the second cause of action, for invasion of the plaintiff's right of publicity, does not set forth a claim "separate and distinct" from the first cause of action.

On May 4, 1982 the plaintiff filed a note of issue and statement of readiness indicating that he waived his right to discovery proceedings, that there are no outstanding requests for discovery, and that the case was ready for trial. At the defendant's request, however, the parties stipulated that the note of issue would be withdrawn to afford the defendant an opportunity to move for summary judgment. In the motion for summary judgment the defendant urged that the complaint should be dismissed because the plaintiff's photograph was not published for trade or advertising purposes.

In support of the motion the defendant submitted affidavits by two of the editors involved in the publication of the "Best Bets" column of August 31, 1981. The affidavits state that the column is a regular news feature of the editorial portion of the magazine, designed to provide readers with information, sometimes including prices, concerning interesting products and services in the New York metropolitan area. They state that such information is provided solely for newsworthy purposes--"advertising concerns" play no part in deciding what to include in "Best Bets" and the magazine receives no payment for any item mentioned in the column. They further state that the item concerning the bomber jacket was included in the August 31 "Best Bets" column because the fashion editor suggested that it would be of interest to readers of New York magazine.

The plaintiff's affidavit in opposition to the motion stated: "While it may be that a party whose service or product is included in 'Best Bets' does not pay a direct advertising fee to be included, the benefits to the magazine are obtained in an indirect manner. Stores, designers, and retailers featured there have all advertised in New York magazine at other times and places and giving them this 'breakout' feature in the 'Best Bets' column acts as barter for such advertising at another time and place.'' The plaintiff further stated that the designer and the stores mentioned in the August 31 column had previously advertised in New York magazine and observed that "the publicity benefits in the column to the designer and retail outlets mentioned are evident from a fair reading of the column".

The trial court granted summary judgment to the defendant concluding, on the basis of the exhibits submitted, that the bomber jacket item was a "newsworthy observation" and was not published for advertising or trade purposes within the contemplation of the statute. The court also held that the inclusion of information concerning the availability of the jacket at certain stores, which currently advertised in the magazine, was not sufficient to sustain the claim that the item had been published for trade or advertising purposes "without a further showing of benefit to defendant".

The Appellate Division reversed and denied the defendant's motion for summary judgment. The majority observed that the September 7 article was published for trade purposes because it was included to increase circulation. Finding that the "form and presentation" of both articles were identical the majority held that a reasonable person could conclude that the August 31 article was also used for trade purposes. "The real question", the majority stated, "is whether the public interest aspect of the August 31, 1981 article is merely incidental to its commercial purpose". The majority held that it "is also possible that this article constituted an advertisement in disguise since many of the magazine's advertisers were mentioned in the copy" (98 A.D.2d 287, 291, 470 N.Y.S.2d 377). One Justice concurred on the ground that a fact question was presented as to whether the plaintiff had consented to the use of his picture in both articles. One Justice dissented for essentially the same reasons as those stated by the trial court. ^* We now reverse.

Section 50 of the Civil Rights Law prohibits the use of "the name, portrait or picture of any living person" for advertising or trade purposes without the person's consent and declares a violation of the statute to be a misdemeanor. Section 51 of the statute provides civil remedies, including injunctive relief, compensatory damages and, if the defendant acted knowingly, exemplary damages.

The statutes have their origin in this court's 1902 decision in Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442. In that case it was held that a young woman whose picture had been used by the defendant on flour advertisements without her consent could not recover for a violation of her right to privacy because no such right was recognized at common law. The Legislature responded the following year by amending the Civil Rights Law to establish a statutory "right to privacy" (see Rhodes v. Sperry & Hutchinson Co., 193 N.Y. 223, 227, 85 N.E. 1097, affd. sub nom. Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 31 S.Ct. 490, 55 L.Ed. 561). Since the adoption of the statutes, this court has repeatedly held that the right of privacy is governed entirely by statute in this State (Arrington v. New York Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941, 434 N.E.2d 1319; Cohen v. Hallmark Cards, 45 N.Y.2d 493, 497, n. 2, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Gautier v. Pro-Football, Inc., 304 N.Y. 354, 358, 107 N.E.2d 485).

Section 51 of the Civil Rights Law has been applied in cases, such as the Roberson case, where the picture of a person who has apparently never sought publicity has been used without his or her consent for trade or advertising purposes (see, e.g. Cohen v. Herbal Concepts, 63 N.Y.2d 379, 482 N.Y.S.2d 457, 472 N.E.2d 307; Flores v. Mosler Safe Co., 7 N.Y.2d 276, 196 N.Y.S.2d 975, 164 N.E.2d 853). In such cases it has been noted that the statute serves "to protect the sentiments, thoughts and feelings of an individual" (Flores v. Mosler Safe Co., supra, 7 N.Y.2d p. 280, 196 N.Y.S.2d 975, 164 N.E.2d 853; Cohen v. Herbal Concepts, supra ).

This history has led some courts to conclude that the statutory right to privacy is limited to the type of case which originally prompted its enactment and thus would not preclude the...