New York Law Review

Tag: right of publicity

  • Southeast Bank, N. A. v. Lawrence, 66 N.Y.2d 910 (1985): Choice of Law for Right of Publicity Determined by Domicile

    Southeast Bank, N. A. v. Lawrence, 66 N.Y.2d 910 (1985)

    The right of publicity is considered personal property, and therefore, questions concerning it are governed by the substantive law of the decedent’s domicile.

    Summary

    Southeast Bank, acting as the personal representative of Tennessee Williams’ estate, sought to prevent the owners of a New York theater from renaming it the “Tennessee Williams.” The bank argued this violated the playwright’s descendible right of publicity. The New York Court of Appeals reversed the lower courts’ decisions, holding that Florida law, as the domicile of Tennessee Williams at the time of his death, governed the right of publicity claim. Under Florida law, because Williams had no surviving spouse or child and had not issued a license during his lifetime, the bank had no enforceable right of publicity. The court did not address whether a common-law descendible right of publicity existed in New York.

    Facts

    Tennessee Williams, a playwright, was domiciled in Florida at the time of his death. Southeast Bank, a Florida-based bank, served as the personal representative of Williams’ estate. The owners of a theater in Manhattan planned to rename it the “Tennessee Williams Theatre.” The bank, acting on behalf of the estate, sought to enjoin the theater owners from doing so, arguing that it violated Williams’ descendible right of publicity.

    Procedural History

    The Special Term granted the bank’s motion for a preliminary injunction and denied the theater owners’ cross-motion to dismiss the complaint. The Appellate Division, First Department, affirmed this order and granted leave to appeal to the Court of Appeals on a certified question. The New York Court of Appeals reversed the Appellate Division’s order, dismissed the complaint, vacated the preliminary injunction, and answered the certified question in the negative.

    Issue(s)

    Whether the right of publicity claim should be governed by the law of New York, where the theater was located, or by the law of Florida, the domicile of the deceased playwright.

    Holding

    No, because questions concerning personal property rights are determined by reference to the substantive law of the decedent’s domicile.

    Court’s Reasoning

    The Court of Appeals determined that the choice of law principle dictates that questions concerning personal property rights are governed by the law of the decedent’s domicile. The court cited EPTL 3-5.1(b)(2) and (e), as well as relevant case law, to support this principle. The court explicitly stated, “[Q]uestions concerning personal property rights are to be determined by reference to the substantive law of the decedent’s domicile.” The court acknowledged that for choice of law purposes, rights of publicity constitute personalty, citing several federal cases. Applying Florida law, the court found that Florida Statutes Annotated § 540.08 limits the descendible right of publicity to licensees, surviving spouses, and children. Since Tennessee Williams had none of these, the bank possessed no enforceable property right. The court declined to rule on whether a common-law descendible right of publicity exists in New York, and it did not reach the merits of other causes of action because the plaintiff lacked standing. The decision emphasizes the importance of choice-of-law rules and the significance of domicile in determining property rights related to deceased individuals. The court’s decision reinforces the principle that “rights of publicity constitute personalty,” which influences how such rights are treated in multi-state legal contexts.

  • 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.

  • Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1968): Right of Publicity and Fictionalization in Biographies

    Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1968)

    A public figure can recover for an unauthorized presentation of their life if the presentation contains material and substantial falsifications, published with knowledge of the falsification or with reckless disregard for the truth.

    Summary

    Warren Spahn, a famous baseball player, sued author Milton Shapiro and publisher Julian Messner, Inc., for publishing an unauthorized biography, “The Warren Spahn Story.” Spahn alleged violations of New York’s Civil Rights Law §§ 50 and 51, concerning the use of his name and likeness for commercial purposes without his consent. The court found that the biography contained significant fictionalizations of Spahn’s life. The New York Court of Appeals affirmed the injunction against publication and the award of damages, holding that the biography contained knowing and substantial falsifications published with reckless disregard for the truth, thus infringing on Spahn’s right to publicity.

    Facts

    Milton Shapiro wrote and Julian Messner, Inc. published “The Warren Spahn Story,” a biography aimed at juvenile readers. Shapiro admitted to using invented dialogue, imaginary incidents, and attributed thoughts and feelings in the book. Shapiro never interviewed Spahn, his family, or any of his baseball colleagues. His research consisted mainly of unverified newspaper and magazine clippings. The biography contained numerous inaccuracies and distortions of Spahn’s life, including false accounts of his childhood, his relationship with his father, his courtship, events during his marriage, and his military service.

    Procedural History

    The trial court found in favor of Spahn, issuing an injunction and awarding damages. The Appellate Division affirmed. The New York Court of Appeals initially affirmed but was subsequently ordered by the U.S. Supreme Court to reconsider in light of Time, Inc. v. Hill. On reargument, the Court of Appeals again affirmed the lower court’s decision.

    Issue(s)

    Whether a public figure can recover damages for an unauthorized biography that contains fictionalized elements, where the fictionalization constitutes knowing falsity or reckless disregard for the truth.

    Holding

    Yes, because the biography contained material and substantial falsifications made with knowledge of their falsity or with reckless disregard for the truth, thus exceeding the permissible bounds of free speech and infringing on Spahn’s right to publicity.

    Court’s Reasoning

    The court acknowledged the need to balance the right of publicity with the constitutional protection of free speech, particularly in the context of biographies. Relying on New York Times Co. v. Sullivan and Time, Inc. v. Hill, the court held that a public figure can recover for an unauthorized presentation of their life only if the presentation contains material and substantial falsifications and was published with knowledge of such falsification or with reckless disregard for the truth. The court found that Shapiro’s biography was replete with invented dialogue, imaginary incidents, and attributed thoughts and feelings, all of which constituted knowing falsification. The court emphasized Shapiro’s minimal research and his failure to verify even readily available information. The court noted that even the defendant’s claimed defense of using standard literary techniques for children’s books failed, as the author had virtually no contact with the subject and made little effort to verify information. The court stated that granting the defendants a license to publish such knowing fictionalizations would be “destructive of an individual’s right…to be free of the commercial exploitation of his name and personality.” The court dismissed the defendant’s argument regarding defective pleading, finding no prejudice because the defense relied on New York Times Co. v. Sullivan at trial. The court emphasized the “all-pervasive” nature of the falsifications, supporting the finding of knowing falsity. The court quoted the lower court’s finding of “all-pervasive distortions, inaccuracies, invented dialogue, and the narration of happenings out of context”.

  • Spahn v. Julian Messner, Inc., 21 N.Y.2d 324 (1968): Right of Publicity and Fictionalized Biographies

    Spahn v. Julian Messner, Inc., 21 N.Y.2d 324 (1968)

    A public figure has a cause of action under New York Civil Rights Law § 51 when a biography of them is substantially fictionalized and exploited for commercial purposes.

    Summary

    Warren Spahn, a famous baseball pitcher, sued Julian Messner, Inc., for publishing an unauthorized and fictionalized biography. The trial court found the book contained numerous falsehoods, distortions, and fanciful passages, exploiting Spahn’s personality for trade purposes. The Court of Appeals affirmed, holding that while public figures are subject to publicity, they are protected from fictionalized accounts of their lives published for commercial gain. The Court distinguished this case from libel actions involving public officials, finding no constitutional barrier to preventing the commercial exploitation of a fictionalized biography.

    Facts

    Warren Spahn was a well-known professional baseball player. Julian Messner, Inc., published a biography of Spahn without his authorization. The biography contained numerous embellishments, invented dialogue, and factual inaccuracies about Spahn’s childhood, war record, and personal life. The book was commercially successful.

    Procedural History

    Spahn sued Julian Messner, Inc., under New York Civil Rights Law § 51, seeking an injunction and damages. The trial court ruled in favor of Spahn, finding the biography was substantially false and for commercial purposes. The Appellate Division affirmed. The New York Court of Appeals granted review and affirmed the lower courts’ decisions.

    Issue(s)

    Whether the publication of a fictionalized biography of a public figure constitutes a violation of New York Civil Rights Law § 51, which prohibits the use of a person’s name or picture for advertising or trade purposes without written consent.

    Holding

    Yes, because the defendants’ publication of a fictitious biography of the plaintiff constitutes an unauthorized exploitation of his personality for purposes of trade and that it is proscribed by section 51 of the Civil Rights Law.

    Court’s Reasoning

    The Court of Appeals reasoned that while public figures are newsworthy and their factual biographies generally fall outside the protection of the Civil Rights Law, the publication of a substantially fictionalized biography for commercial gain is not protected. The Court distinguished this case from New York Times Co. v. Sullivan, which involved libel actions by public officials. The Court emphasized that the First Amendment protections afforded to speech concerning public issues and officials do not extend to the commercial exploitation of a person’s fictionalized life story. The court noted the trial court’s finding of “dramatization, imagined dialogue, manipulated chronologies, and fictionalization of events”. It quoted the trial judge: “the record unequivocally establishes that the book publicizes areas of Warren Spahn’s personal and private life, albeit inaccurate and distorted, and consists of a host, a preponderant percentage, of factual errors, distortions and fanciful passages”. The Court concluded that no public interest is served by protecting the dissemination of a fictitious biography. The Court explicitly stated that the plaintiff “seeks only to restrain the publication of that which purports to be his biography.”