Sweenek v. Pathe News, E-8041.

• Decision Date: 08 October 1936
• Docket Number: No. E-8041.,E-8041.
• Citation: 16 F. Supp. 746
• Parties: SWEENEK v. PATHE NEWS, Inc.
• Court: U.S. District Court — Eastern District of New York

16 F. Supp. 746

SWEENEK v. PATHE NEWS, Inc.

No. E-8041.

District Court, E. D. New York.

October 8, 1936.

Harry Kamer, of New York City, for plaintiff.

William Mallard, of New York City (William S. Savage, of New York City, of counsel), for defendant.

MOSCOWITZ, District Judge.

This is a motion to dismiss the complaint for failure to state a cause of action. The plaintiff, Gertrude Sweenek, contends that the publication by the defendant Pathe News, Inc., of a reel of motion pictures, in which she appears, is a violation of her right of privacy under section 51 of the New York Civil Rights Law (Consol.Laws, c. 6). These pictures were incorporated as part of a newsreel and reveal women exercising in a gymnasium, in many instances with the aid of novel and unique apparatus. The course of exercises had been offered gratuitously by the proprietor of the gymnasium to the women, all of whom had to weigh over 200 pounds to qualify.

Section 51 provides: "Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages."

The publication of matters of public interest in newspaper or newsreels is not a trade purpose within the meaning and purview of this statute. Humiston v. Universal Film Manufacturing Co., 189 App.Div. 467, 178 N.Y.S. 752; Moser v. Press Publishing Co., 59 Misc. 78, 109 N.Y. S. 963; see Binns v. Vitagraph Co., 210 N.Y. 51, 103 N.E. 1108, L.R.A.1915C, 839, Ann.Cas.1915B, 1024; Martin v. New Metropolitan Fiction, Inc., 139 Misc. 290, 292, 248 N.Y.S. 359. Thus the substance of defendant's argument is, first, that the film in question was a newsreel and contained matters of public interest; and, second, that plaintiff consented to the taking of the film. Authorities on the nature of news are few. In Associated Press v. International News Service, 245 F. 244, 248, 2 A.L.R. 317 (C.C.A.2), affirmed 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293, news is said to have "that indefinable quality of interest, which attracts public attention." The court in Jenkins v. News Syndicate Co., 128 Misc. 284, 285, 219 N. Y.S. 196, 198, says "a report of recent occurrences, * * * is generally understood by the term `news.'" However, generalities such as these are of little value in the decision of a particular case. Of necessity, what is news of public interest will vary with the circumstances involved....