78 N.Y.2d 745 (1991)

Using a person’s photograph, name, and professional title in a calendar distributed to promote a for-profit medical services business constitutes use for “advertising purposes” under New York Civil Rights Law § 51, and is not protected by the public interest/newsworthiness or public figure doctrines.

Summary

Dr. Cordia Beverley sued Choices Women’s Medical Center for using her photo, name, and title in a promotional calendar without her consent, alleging violation of New York Civil Rights Law § 51. The calendar, distributed to patients and referring physicians, featured Choices’ name and advertised its medical services. The Court of Appeals affirmed the lower courts’ decision that Choices used Beverley’s image for advertising purposes, thus violating her right to privacy. The Court rejected Choices’ arguments that the calendar’s theme of women’s rights or Beverley’s status as a physician provided an exception to the statute.

Facts

Choices, a for-profit medical center, created a calendar for 1985 promoting its services related to family planning. Choices distributed 10,000 copies free of charge. Each page featured Choices’ logo, address, and phone number, along with positive statements about the center’s medical care. The calendar highlighted historical dates and figures related to the women’s movement. A photo of Dr. Beverley taken at a 1983 women in medicine conference was used for June, without her consent. Dr. Beverley, an internal medicine and gastroenterology specialist, had no affiliation with Choices.

Procedural History

Dr. Beverley sued Choices for invasion of privacy and defamation. The Supreme Court granted summary judgment to Dr. Beverley on the privacy claim and denied Choices’ motion to dismiss the defamation claim. The Appellate Division modified, dismissing the defamation claim, and remitted for a trial on damages for the privacy claim. After the trial on damages, the Supreme Court awarded Dr. Beverley $50,000 in compensatory and $25,000 in punitive damages. The Appellate Division affirmed, and the Court of Appeals granted Choices leave to appeal.

Issue(s)

Whether Choices’ use of Dr. Beverley’s photo, name, and professional title in its promotional calendar constituted use for “advertising purposes” within the meaning of Civil Rights Law § 51.

Whether Choices could avoid liability under Civil Rights Law § 51 by arguing the calendar addressed a matter of public interest (the women’s movement) or that Dr. Beverley was a limited-purpose public figure.

Holding

Yes, because the calendar, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of Choices’ medical services. The pervasive placement of Choices’ information and laudatory statements about its services demonstrated its advertising purpose.

No, because Choices is a commercial advertiser and cannot unilaterally neutralize the statutory privacy protection by wrapping its advertising message in the cloak of public interest. Dr. Beverley was not a public figure in this context, and the use of her image was a deliberate, later publication in advertising literature, not a simultaneous reporting of a current event.

Court’s Reasoning

The Court reasoned that Choices’ calendar was clearly an advertisement because of the prominent placement of its name, logo, address, and positive endorsements. The Court emphasized the distinction between media enterprises reporting on newsworthy events and commercial advertisers using images for direct promotional purposes. The court stated, “[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.” Because Choices’ calendar was overtly an advertisement, the public interest exception did not apply. Further, the court distinguished this case from those involving the reporting of current events, noting that the use of Beverley’s image was a “deliberate later publication of a no longer current news item in an individual firm’s advertising literature”. The court concluded that Choices knowingly violated Dr. Beverley’s statutory privacy rights, thus affirming the punitive damages award.