University of Notre Dame Du Lac v. Twentieth Century-Fox Film Corp., CENTURY-FOX

• Citation: 22 A.D.2d 452,256 N.Y.S.2d 301
• Decision Date: 09 February 1965
• Docket Number: CENTURY-FOX
• Parties: , 144 U.S.P.Q. 454 UNIVERSITY OF NOTRE DAME DU LAC and Theodore M. Hesburgh, Plaintiffs- Respondents, v. TWENTIETHFILM CORPORATION, Twentieth Century-Fox Distributing Corporation, Twentieth Century-Fox International Corporation, Doubleday & Company, Inc., Fawcett Publications, Inc., and Fawcett World Library, Defendants-Appellants.
• Court: New York Supreme Court Appellate Division

Page 301

256 N.Y.S.2d 301

22 A.D.2d 452, 144 U.S.P.Q. 454

UNIVERSITY OF NOTRE DAME DU LAC and Theodore M. Hesburgh, Plaintiffs- Respondents, v. TWENTIETH CENTURY-FOX FILM CORPORATION, Twentieth

Century-Fox Distributing Corporation, Twentieth Century-Fox

International Corporation, Doubleday & Company, Inc.,

Fawcett Publications, Inc., and Fawcett World Library,

Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Feb. 9, 1965.

Frederick W. R. Pride and Samuel I. Rosenman, New York City, of counsel (Leo P. Larkin, Jr., Stanley Godofsky, Max Freund and Gilbert S. Edelson, New York City, on the brief; Royall, Koegel & Rogers and Rosenman, Colin, Kaye, Petschek & Freund, New York City, attorney), for appellants Twentieth Century-Fox Film Corp., Twentieth Century-Fox Distributing Corp. and Twentieth Century-Fox International Corp.

William C. Scott, New York City, of counsel (Donald W. Smith, New York City, with him on the brief; Satterlee, Warfield & Stephens, New York City, attorneys), for appellants Doubleday & Co., Inc. and Fawcett Publications, Inc. David W. Peck, New York City, of counsel (John Dickey and John S. Allee, New York City, with him on the brief; Sullivan & Cromwell, New York City, attorneys), for respondents.

Emanuel Redfield, New York City, for New York Civil Liberties Union as amicus curiae.

Weil, Gotshal & Manges, New York City (Horace S. Manges, Jacob F. Raskin and Marshall C. Berger, New York City, on the brief), for American Book Publishers Council, Inc., as amicus curiae.

Before BOTEIN, P. J., and RABIN, STEVENS, STEUER and WITMER, JJ.

BOTEIN, Presiding Justice.

The University of Notre Dame du Lac and its president, Father Theodore M. Hesburgh, have brought this action against various book publishers and film distributors to enjoin release and distribution of a motion picture entitled 'John Goldfarb, Please Come Home' and further distribution of the published novel on which the picture is based. Defendants appeal from an order granting an injunction pendente lite and denying their motions to dismiss the complaint.

Novel and photoplay both fall in the category of broad farce in which, among other blunderbuss travesty, collegiate football is depicted as having attained such magnified importance today that it may affect religious barriers and influence international relationships. Among other objects of what defendants are pleased to term 'satirical thrusts' are the United States State Department, Central Intelligence Agency, United States Information Agency and oil-rich Arabian royalty. Only a short sketch of a part of the plot need be given, to the extent it most immediately involves the University.

A king of the Moslem faith, ruler of the mythical Arab country of Fawzia, has a son who has enrolled as a student in a Catholic college, the plaintiff Notre Dame--inferentially because it is the image and exemplar of supremacy in football. Enraged because his son has been denied a place on the football team, the king determines on vengeance by forming a team at Fawz U of his own subjects which, he plans, will play the Notre Dame team and defeat it. To train his group of novices, the king impresses into service a former football star, known as Wrong-Way Goldfarb. Goldfarb, who is a Jew--to complete the plot's religious cycle--is an American aviator employed by the Central Intelligence Agency to fly over Russia but he has by mistake landed in Fawzia. The king demands that the United States arrange a game between Fawz U and Notre Dame as the price for allowing the United States to lease an air base in his country.

At the urging of the panic-stricken State Department, Notre Dame, after firm refusals, finally permits its players and coach to travel to Fawzia. There, on the eve of the game, they are dined by the king and witness an orgiastic entertainment provided by dancing girls from the royal harem. The culinary piece de resistance is spiced mongoose, renowned for its devastating effect on even more sophisticated digestive systems than those of American football players. The next day they engage in a wild burlesque of a football game with the Fawzians, losing it because of the distressing aftermath of the spiced mongoose and a variety of chicaneries practiced against Notre Dame by, among others, the chief of the Central Intelligence Agency, who acts as referee. Not the least credible incident of the game is the winning touchdown scored by the leading lady, an American reporter who enters the game at the last minute as a member of the Fawzian team. She is carried bodily over the goal line by a preposterous oil gusher which erupts on the football field.

I shall first discuss the individual plaintiff's claim of violation of his right of privacy under sections 50 and 51 of the Civil Rights Law. Father Hesburgh is named in connection with two brief passages in the book, but not named at all in the film. In the book, a volume of 143 pages in the paperback edition, he is referred to by name at page 108 and again at pages 115-116 as the University official with whom the State Department is in communication. In our opinion these isolated references are of that fleeting and incidental nature which the Civil Rights Law does not find offensive (Stillman v. Paramount Pictures Corp., 5 N.Y.2d 994, 184 N.Y.S.2d 856, 157 N.E.2d 728; Damron v. Doubleday, Doran & Co., Inc., 133 Misc. 302, 231 N.Y.S. 444, affd. 226 App.Div. 796, 234 N.Y.S. 773; Moglen v. Varsity Pajamas, Inc., 13 A.D.2d 114, 213 N.Y.S.2d 999). To the extent that Father Hesburgh's cause of action is based on the film, it fails for the additional reason that the film does not use his 'name, portrait or picture', the statutory test of identification (Toscani v. Hersey, 271 App.Div. 445, 448, 65 N.Y.S.2d 814, 817). We do not think this test is satisfied by the conjunction of the fact that the book names him and the fact that the cover pages of the paperback edition, which in no way refer to him or his co-plaintiff, laud the film.

We have read the book, which is incorporated as an exhibit to the complaint, and at the request of the parties viewed a special showing of the moving picture. The name of Notre Dame, unlike that of Father Hesburgh, is employed frequently in both book and film; and there is not the slightest question that the references are to the plaintiff University. And there is no point whatsoever in disclosing our views as to the artistic merit, good taste or essential decency of the treatment accorded Notre Dame in the book and moving picture versions. As will be developed further on, cases of this nature may not be determined on such criteria.

The only critique we are permitted to make is a threshold one shaped by a consistent line of cases. It is this: Is there any basis for any inference on the part of rational readers or viewers that the antics engaging their attention are anything more than fiction or that the real Notre Dame is in some way associated with its fabrication or presentation? In our judgment there is none whatever. They know they are not seeing or reading about real Notre Dame happenings or actual Notre Dame characters; and there is nothing the text or film from which they could reasonably infer 'connection or benefit to the institution' (Cornell University v. Messing Bakeries, Inc., 285 App.Div. 490, 492, 138 N.Y.S.2d 280, 282; affd. 309 N.Y. 722, 128 N.E. 421). "Nobody is deceived. Nobody is confused." (Germanow v. Standard Unbreakable W. Crystals, 283 N.Y. 1, 18, 27 N.E.2d 212, 219), and plainly nobody was intended to be.

As will be seen, this conclusion imposes a heavy burden upon the University, which it must overcome in order to sustain its complaint.

Sections 50 and 51 of the Civil Rights Law protect only a 'living person' (Hofstadter and Horowitz, The Right of Privacy, § 51; Prosser on Torts, 3d ed., p. 843), and the University, an incorporated institution, does not rely on them. Under section 397 of the General Business Law, added by L.1961, c. 438, a nonprofit corporation such as the University may restrain the use of its name for advertising purposes or for purposes of trade. We are offered no convincing rebuttal of defendants' contention that this legislation was mainly designed to operate in connection with the sale of goods and services, and in our view a situation like the present was remote from the Legislature's contemplation. ^*

Plaintiffs expressly state that the action is in no sense a libel action and that any libel involved is immaterial and beside the point. It is the doctrine of unfair competition on which the University principally relies; specifically, that defendants have illegally appropriated 'the name, symbols, high prestige, reputation and good will of Notre Dame.' As 'palming off'--deception--is not an element here, the University finds no support in such authorities as Cornell University v. Messing Bakeries, Inc., supra, or Trustees of Columbia University in City of New York v. Axenfeld, 136 Misc. 831, 241 N.Y.S. 4. In the latter case there was a finding that 'defendants in adopting the name 'Columbia Educational Institute' did so with the deliberate design of conveying to the public the impression that they were identical or associated with the plaintiff.' Accordingly, plaintiff University invokes cases of the type exemplified by Madison Square Garden Corp. v. Universal Pictures Co. (255 App.Div. 459, 7 N.Y.S.2d 845), in which defendant wove actual news...