New York Law Review

Tag: Commercial Appropriation

  • Finger v. Omni Publications Int’l, Ltd., 77 N.Y.2d 138 (1990): Newsworthiness Exception to Privacy Law

    77 N.Y.2d 138 (1990)

    The “newsworthiness exception” to New York’s privacy law (Civil Rights Law §§ 50 and 51) protects publications from liability for using a person’s image in connection with a newsworthy article, unless the image has no real relationship to the article or the article is essentially an advertisement in disguise.

    Summary

    The Fingers sued Omni Publications for publishing their family photograph in an article about caffeine and fertility. The New York Court of Appeals held that Omni’s use of the photo was protected by the “newsworthiness exception” to the state’s privacy law. Even though the Fingers had no connection to the research discussed in the article, the court found a reasonable relationship between the photo of a large, healthy family and the article’s theme of fertility. This case illustrates the broad scope of the newsworthiness exception and emphasizes judicial deference to editorial judgment in determining what constitutes a matter of public interest.

    Facts

    Omni magazine published an article titled “Caffeine and Fast Sperm” discussing research on caffeine-aided fertilization. The article included a photograph of Joseph and Ida Finger with their six children. The caption read, “Want a big family? Maybe your sperm needs a cup of Java in the morning. Tests reveal that caffeine-spritzed sperm swim faster, which may increase the chances for in vitro fertilization.” The Fingers had no connection to the research, and none of their children were conceived through in vitro fertilization.

    Procedural History

    The Fingers sued Omni Publications, alleging violations of New York Civil Rights Law §§ 50 and 51. The Supreme Court dismissed the complaint, citing the newsworthiness exception. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the use of the Fingers’ photograph in connection with an article about caffeine-aided fertilization falls within the “newsworthiness exception” to New York Civil Rights Law §§ 50 and 51, even though the Fingers had no connection to the research discussed in the article.

    Holding

    Yes, because there is a “real relationship” between the photograph of a large family and the article’s theme of fertility, even if the family has no direct connection to the specific research discussed in the article.

    Court’s Reasoning

    The Court of Appeals affirmed the dismissal, reasoning that the “newsworthiness exception” to New York’s privacy law is to be liberally applied. 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.”
    The Court found that the article’s theme was fertility, and the photograph of a large, healthy family bore a “real relationship” to that theme, regardless of the family’s lack of connection to the in vitro fertilization research. The court emphasized that matters of scientific and biological interest, such as enhanced fertility, fall within the scope of the newsworthiness exception. “Questions of ‘newsworthiness’ are better left to reasonable editorial judgment and discretion…judicial intervention should occur only in those instances where there is ‘no real relationship’ between a photograph and an article or where the article is an ‘advertisement in disguise.’” The Court deferred to the magazine’s editorial judgment, finding no basis to conclude that the photograph lacked a real relationship to the article’s subject matter. The Court explicitly stated, “We conclude here that it cannot be said, as a matter of law, that there is no ‘real relationship’ between the content of the article and the photograph of plaintiffs. Thus the use of the photograph does not violate the prohibitions of Civil Rights Law §§ 50 and 51.”

  • Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379 (1984): Identifiability in Privacy Actions Under New York Civil Rights Law

    Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379 (1984)

    Under New York Civil Rights Law §§ 50 and 51, a plaintiff’s likeness is identifiable if a person familiar with the plaintiff could recognize them from the photograph or representation, even if the face is not visible.

    Summary

    Susan and Samantha Cohen sued Herbal Concepts, Inc. for using a photograph of them, taken without their consent, in an advertisement for a cellulite treatment. The photograph depicted them nude from the back. The New York Court of Appeals addressed whether the photograph was sufficiently identifiable to sustain a claim under New York Civil Rights Law §§ 50 and 51, which prohibits the use of a person’s likeness for advertising purposes without consent. The Court of Appeals held that the plaintiffs were identifiable because a jury could find that someone familiar with them could recognize them from the advertisement based on their hair, bone structure, body contours, stature, and posture.

    Facts

    Susan Cohen and her daughter Samantha were photographed without their consent while bathing in a stream on private property. James Krieger, the photographer, sold the photos to Herbal Concepts, Inc. Herbal Concepts used one of the photos in an advertisement for a cellulite treatment called Au Naturel, which appeared in several magazines. Ira Cohen, Susan’s husband and Samantha’s father, recognized his wife and daughter in the advertisement while reading one of the magazines.

    Procedural History

    The Cohens sued Herbal Concepts, Inc., James Krieger, and the publishers of the magazines for violating § 51 of the Civil Rights Law, defamation, loss of services, and loss of consortium. Special Term granted summary judgment for the defendants on all claims. The Appellate Division reversed the grant of summary judgment on the privacy claims under § 51 and reinstated those causes of action. Hearst and Conde Nast were granted leave to appeal to the Court of Appeals.

    Issue(s)

    Whether a photograph of nude plaintiffs, mother and child, which shows their bodies full length as viewed from a position behind and to the right of them, and which does not show their faces, reveals sufficiently identifiable likenesses to withstand defendants’ motions for summary judgment.

    Holding

    Yes, because a jury could find that someone familiar with the persons in the photograph could identify them by looking at the advertisement.

    Court’s Reasoning

    The Court of Appeals held that to sustain a claim under § 51 of the Civil Rights Law, the plaintiff must be identifiable from the objectionable material itself. The court clarified that this does not require the plaintiff’s face to be visible. The statute protects a person’s identity, not merely a property interest in their name, portrait, or picture. The court stated, “Manifestly, there can be no appropriation of plaintiff’s identity for commercial purposes if he or she is not recognizable from the picture.”

    The court reasoned that whether a photograph presents a recognizable likeness is generally a jury question, unless the plaintiff cannot be identified because of the limited subject matter revealed in the photograph or the quality of the image. The court emphasized the importance of the identifiable characteristics displayed in the advertisement, such as the clarity of the photograph, the extent to which identifying features are visible, and the distinctiveness of those features.

    Applying these principles to the case, the court found that the photograph of Susan and Samantha Cohen displayed sufficient identifiable characteristics. The court noted the good quality of the picture, the unobstructed view of the subjects, and the visibility of their hair, bone structure, body contours, stature, and posture. “Considering these factors, we conclude that a jury could find that someone familiar with the persons in the photograph could identify them by looking at the advertisement.” The court also considered Ira Cohen’s affidavit, in which he stated that he recognized his wife and daughter immediately, as prima facie sufficient evidence of identification.

    The court distinguished several cases cited by the defendants, noting that in those cases, the photographs either lacked sufficient identifying characteristics or involved fictional characters with only coincidental similarities to the plaintiffs. The court emphasized that in this case, the similarity between the plaintiffs and the persons in the photograph was complete because the plaintiffs were, in fact, the persons in the picture.