Wallace v. Weiss

• Citation: 372 N.Y.S.2d 416,82 Misc.2d 1053
• Parties: Hannah WALLACE, Plaintiff, v. Eve WEISS et al., Defendants.
• Decision Date: 25 August 1975
• Court: United States State Supreme Court (New York)

Page 416

372 N.Y.S.2d 416

82 Misc.2d 1053

Hannah WALLACE, Plaintiff, v. Eve WEISS et al., Defendants.

Supreme Court, Monroe County.

Aug. 25, 1975.

Frank & Garrity, Rochester (John R. Garrity, Rochester, of counsel), for plaintiff.

Monroe County Legal Assistance Corp. (K. Wade Eaton, Rochester, of counsel), for defendant Eve Weiss.

Hickey, McHugh & Garlick, Rochester (Thomas B. Garlick, Jr., Rochester, of counsel), for defendants University of Rochester Gay Liberation Front and University of Rochester.

MEMORANDUM

JAMES H. BOOMER, Justice.

Extensive pre-trial examinations having been held, the defendants move for summary judgment. The plaintiff sues for money damages for the unauthorized use of her photograph on the front cover of a magazine published and distributed by one of the defendants, a student organization of the defendant University.

The first cause of action is based upon section 51 of the Civil Rights Law which gives a person a cause of action for damages for the unauthorized use of his photograph 'for the purpose of advertising or trade.' The plaintiff's photograph did not appear in connection with any commercial advertising and there is no showing that the defendant is engaged in commercial trade or operates for profit. Its purposes are the dissemination of its beliefs.

'(W)hen a living person's name, portrait, or picture is used, it is not necessarily and at the times used either for advertisi purposes or for the purposes of trade.' (Binns v. Vitagraph, 210 N.Y. 51, 55, 103 N.E. 1108, 1110.) Where, without consent, a photograph is used 'as a matter of business and profit' it is contrary to the prohibition of the statute (Binns v. Vitagraph, supra, at p. 58, 103 N.E. at p. 1111). "A picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise.' (Dallesandro v. Holt & Co., 4 A.D.2d 470, 471, 166 N.Y.S.2d 805, 806, app. dsmd. 7 N.Y.2d 735, 193 N.Y.S.2d 635, 162 N.E.2d 726; see also, Pagan v. New York Herald Tribune, 32 A.D.2d 341, 301 N.Y.S.2d 120, affd. 26 N.Y.2d 941, 310 N.Y.S.2d 327, 258 N.E.2d 727; Oma v. Hillman Periodicals, 281 App.Div. 240, 118 N.Y.S.2d 720; Thompson v. Close-Up, 277 App.Div. 848, 98 N.Y.S.2d 300.).' (Murray v. New York Magazine Co., 27 N.Y.2d 406, 409, 318 N.Y.S.2d 474, 476, 267 N.E.2d 256, 258.)

Where a photograph is not used in connection with an advertisement and does not illustrate an article on a matter of public interest, but appears in a periodical primarily to enhance the sales of the periodical, the use may be considered a commercial one for the purpose of trade. Thus, it cannot be doubted that the subject of a centerfold has a cause of action against a magazine for the unauthorized use of his photograph (See, Myers v. U.S. Camera Pub. Corp., 9 Misc.2d 765, 167 N.Y.S.2d 771). 'There may, however, be liability * * * if the photograph used has so tenuous a connection with the news item or educations article that it can be said to have no legitimate relation to it and Be used for the purpose of promoting the sale of the publication.' (Lahiri v. Daily Mirror, Inc., 162 Misc. 776, 782, 295 N.Y.S. 382, 389, emphasis supplied, referred to in Flores v. Mosler Safe Co., 7 N.Y.2d 276, 282--283, 196 N.Y.S.2d 975, 979--981, 164 N.E.2d 853, 856--857.)

Here, however, the magazine was not sold, but was distributed free of charge. The defendant organization was not a commercial venture and was not engaged in trade. I hold that since the photograph was not used in connection with any advertising material and was not used for the purpose of trade, its use does not come within the prohibition of section 51 of the Civil Rights Law. Accordingly, I grant partial summary judgment dismissing the first cause of action.

The second cause of action, for an injunction, is also based upon section 51 of the Civil Rights Law and should also be dismissed.

The third cause of action is founded in libel. The defendants claim that they are entitled to summary judgment in their favor on this cause of action since there is no proof of actual malice on the part of the defendants and no proof of actual damage sustained by the plaintiff.

While public officials (New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686) and public figures (Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094) must allege and prove actual malice to sustain a cause of action for libel, private individuals need not (Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789). In the absence of a showing of actual malice, however, private individuals are limited to compensation for 'actual injury' (Gertz v. Robert Welch, Inc., supra, at p. 349, 94 S.Ct. 2997; Lawlor v. Gallagher Presidents' Report, Inc., D.C., 394 F.Supp. 721).

What is 'actual injury'? The Supreme Court has partially answered the question by stating: 'We need not define 'actual injury,' as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.' (Gertz v. Robert Welch, Inc., supra, 418 U.S. at pp. 349--350, 94 S.Ct. at p. 3012.)

It is the defendants' contention that no actual malice has been shown and that there has been no 'actual injury' to the plaintiff. Therefore, she has no cause of action. Assuming there is no showing of actual malice, is there an issue of fact concerning 'actual injury'. It is undisputed that the plaintiff has incurred no out of pocket loss, except attorney's fees for the commencement of this action. These attorney's fees do not constitute an item of damage in a libel action. Has the plaintiff suffered 'impairment of reputation and standing in the community, personal humiliation, (or) mental anguish and suffering.' It may be inferred from the testimony of the plaintiff at the examination before trial that she suffered no personal humiliation, mental anguish or suffering. There is an absence of testimony in the record of the examination before trial concerning impairment of the plaintiff's reputation and standing in the community. Plaintiff, however, was under no obligation to submit all of her proof at the examination before trial. And she is under no obligation on this motion for summary judgment to present proof of loss of reputation since the defendant did not first submit evidentiary facts showing that there was no loss of reputation. Furthermore, this is an issue that cannot properly be decided on papers and should be reserved for the trial. I decline, therefore, to grant summary judgment dismissing...