55 N.Y.2d 433 (1982)

The use of a person’s photograph in connection with a newsworthy article or matter of public interest does not constitute use for trade or advertising purposes under New York Civil Rights Law §§ 50 and 51, even if the publication seeks to increase circulation and profits, unless the photograph lacks a real relationship to the article or the article is an advertisement in disguise.

Summary

A professional model sued New York Magazine for using his photo in its “Best Bets” column without his consent, claiming violation of his statutory right to privacy and common-law right of publicity. The magazine featured the model wearing a bomber jacket, noting its price and availability at certain stores. The Court of Appeals held that the magazine’s use of the model’s photo fell under the “newsworthiness exception” to the Civil Rights Law because the article concerned a matter of public interest—fashion—and was not an advertisement in disguise. The Court clarified that in New York, the right of publicity is encompassed within the statutory right to privacy, thus no separate common law claim exists.

Facts

Plaintiff, a professional model, agreed to model for a fall fashion article in New York Magazine. One photo from the session was used in the magazine’s “Best Bets” column, featuring a bomber jacket, its price (approximately $225), and where it could be purchased (Barney’s, Bergdorf Goodman, Bloomingdale’s). Plaintiff contended that he only agreed to model for the September 7 fall fashion article and did not consent to the August 31 “Best Bets” column use.

Procedural History

The trial court granted summary judgment to the defendant, New York Magazine. The Appellate Division reversed, finding factual questions regarding whether the photograph was used for trade purposes and whether the article was an advertisement in disguise. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order, dismissing the complaint.

Issue(s)

1. Whether the defendant used the plaintiff’s picture for trade or advertising purposes within the meaning of New York Civil Rights Law §§ 50 and 51 when it published his picture in the “Best Bets” column without his consent?
2. Whether New York recognizes a common-law right of publicity independent of the statutory right to privacy under New York Civil Rights Law §§ 50 and 51?

Holding

1. No, because the article was a newsworthy item of public interest and was not an advertisement in disguise.
2. No, because in New York, the right of publicity is encompassed within the statutory right to privacy under the Civil Rights Law.

Court’s Reasoning

The Court reasoned that New York’s statutory right to privacy, as codified in Civil Rights Law §§ 50 and 51, exclusively governs privacy rights in the state. The Court acknowledged the historical context originating from Roberson v. Rochester Folding Box Co., leading to the enactment of the statute to protect individuals from unauthorized commercial exploitation of their likeness. While the statute applies broadly to any unauthorized use of a person’s image for trade or advertising, it contains an exception for newsworthy events or matters of public interest, reflecting constitutional concerns for freedom of the press. This “newsworthiness exception” extends to consumer interest articles, including fashion news. The Court stated, “[A] ‘picture illustrating an article on a matter of public interest is not considered used for the purposes 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.’” The Court found the bomber jacket article to be a newsworthy item, even though the photograph was posed, because the public interest lay in the availability of the clothing item itself. The fact that the magazine sought to increase circulation and profits was not determinative. The plaintiff’s claim that the article was an advertisement in disguise, based on the inclusion of price and store information and the fact that those stores had previously advertised in the magazine, was deemed speculative and insufficient to overcome summary judgment. The Court also rejected the notion of a separate common-law right of publicity in New York, holding that the statute encompasses such rights.