New York Law Review

Tag: Newsworthiness Exception

  • 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.”

  • Arrington v. New York Times Co., 55 N.Y.2d 433 (1982): Newsworthiness Exception to Privacy Rights

    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.