94 N.Y.2d 436 (2000) 727 N.E.2d 549 706 N.Y.S.2d 52

JAMIE MESSENGER, an Infant Under the Age of Eighteen, by Her Mother and "Next Friend," DONNA MESSENGER, Respondent-Appellant,
v.
GRUNER + JAHR PRINTING AND PUBLISHING, Also Known as GRUNER + JAHR USA, Appellant-Respondent, et al., Defendant.

Court of Appeals of the State of New York.

Argued October 14, 1999. Decided February 17, 2000.

*437 Weil, Gotshal & Manges, L. L. P., New York City (Robert G. Sugarman and Jennifer Sclar of counsel), and Yvette Miller for appellant-respondent.

Lieberman & Nowak, L. L. P., New York City (Mitchell A. Stein and Arthur M. Lieberman of counsel), for respondent-appellant.

*438 Squadron, Ellenoff, Plesent & Sheinfeld, L. L. P., New York City (Slade R. Metcalf and Trina R. Hunn of counsel); Henry S. Hoberman; Sabin, Bermant & Gould, L. L. P. (Jerry S. Birenz of counsel); Eve B. Burton; Davis Wright Tremaine, L. L. P., Washington D.C. (Laura R. Handman of counsel); Laurence B. Sutter, New York City; Catherine R. Flickinger, Katherine J. Daniels; Robert J. Hawley; Victor A. Kovner, Alec M. Lipkind; Anne Noble Ervine, Washington D.C.; Henry L. Baumann, Jack N. Goodman, Steven A. Bookshester; Susan E. Weiner, New York City; Jan F. Constantine; Carolyn Schurr, Melville; Rene P. Milam, Vienna, Virginia; Adam Liptak, New York City, and Christopher A. Fraser for ABC, Inc. and others, amici curiae.

Geffner & Bush, Burbank, California (Leo Geffner, Joseph A. *439 Kohanski and Steven K. Ury of counsel), for Screen Actors Guild, Inc., amicus curiae.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur in Per Curiam opinion; Judge BELLACOSA dissents and votes to answer certified question No. 1 in the affirmative in a separate opinion.

OPINION OF THE COURT

Per Curiam.

Plaintiff, a 14-year-old aspiring Florida model, posed for a series of photographs in New York to appear in Young and Modern (YM), a magazine for teenage girls published by defendant Gruner + Jahr Printing. Plaintiff consented to the photo shoot, but YM did not obtain written consent from her parent or legal guardian. YM used the photos to illustrate the "Love Crisis" column in its June/July 1995 issue.

The column began with a letter to Sally Lee, YM's editor-in-chief, from a 14-year-old girl identified only as "Mortified." Mortified writes that she got drunk at a party and then had sex with her 18-year-old boyfriend and two of his friends. Lee responds that Mortified should avoid similar situations in the future, and advises her to be tested for pregnancy and sexually transmitted diseases. Above the column, in bold type, is a pull-out quotation stating, "I got trashed and had sex with three guys." Three full-color photographs of plaintiff illustrate the column—one, for example, shows her hiding her face, with three young men gloating in the background. The captions are keyed to Lee's advice: "Wake up and face the facts: You made a pretty big mistake;" "Don't try to hide—just ditch him and his buds;" and "Afraid you're pregnant? See a doctor."

Plaintiff brought this diversity action in the United States District Court for the Southern District of New York, alleging, among other things, that YM violated sections 50 and 51 of the New York Civil Rights Law by using her photographs for trade purposes without obtaining the requisite consent. Defendants moved for summary judgment, arguing that they could not be held liable under the Civil Rights Law because the photographs had been used to illustrate a newsworthy column, the pictures *440 had a real relationship to the article and the column was not an advertisement in disguise. Plaintiff conceded these facts but argued that the "newsworthiness" exception did not apply because the column and pictures together created the false impression that plaintiff was the author of the letter. The District Court denied summary judgment, holding that the newsworthiness exception does not apply where the juxtaposition of a photograph to an article creates a substantially fictionalized implication.^[1] The court dismissed plaintiff's additional claims for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress and negligence. Following trial on the Civil Rights Law claim, the jury awarded plaintiff $100,000 in compensatory damages.

Defendants appealed to the United States Court of Appeals for the Second Circuit, arguing that the newsworthiness exception barred recovery under the Civil Rights Law. The Second Circuit observed that New York had, in older cases, recognized a "fictionalization limitation" on the newsworthiness exception (see, e.g., Spahn v Julian Messner, Inc., 21 NY2d 124, 127). The court noted, however, that our more recent cases have held that, where a photograph illustrates an article on a matter of public interest, the newsworthiness exception bars recovery unless there is no real relationship between the photograph and the article, or the article is an advertisement in disguise (see, e.g., Finger v Omni Publs. Intl., 77 NY2d 138, 141-142). Uncertain whether Finger "signaled the end of the fictionalization limitation," the Second Circuit sua sponte certified to us the following two questions, which we accepted for review (93 NY2d 948):

"1. May a plaintiff recover under New York Civil Rights Law §§ 50 and 51 where the defendant used the plaintiff's likeness in a substantially fictionalized way without the plaintiff's consent, even if the defendant's use of the image was in conjunction with a newsworthy column?"

*441 "2. If so, are there any additional limitations on such a cause of action that might preclude the instant case?"

We answer the first question in the negative, and therefore need not reach the second.

Analysis

New York does not recognize a common-law right of privacy (see, Roberson v Rochester Folding Box Co., 171 NY 538; see also, Wojtowicz v Delacorte Press, 43 NY2d 858, 860). In response to Roberson, the Legislature enacted Civil Rights Law §§ 50 and 51, which provide a limited statutory right of privacy. Section 50 makes it a misdemeanor to use a living person's "name, portrait or picture" for advertising or trade purposes "without having first obtained the written consent of such person, or if a minor of his or her parent or guardian." Section 51—relevant here—provides:

"Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided [in section 50] may maintain an equitable action * * * to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use" (internal footnote omitted).

This Court has consistently restated several basic principles concerning the statutory right of privacy. First, recognizing the Legislature's pointed objective in enacting sections 50 and 51, we have underscored that the statute is to be narrowly construed and "strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person" (Finger v Omni Publs. Intl., supra, 77 NY2d 138, 141; see also, Prosser, Privacy, 48 Cal L Rev 383, 402-403). Second, we have made clear that these sections do not apply to reports of newsworthy events or matters of public interest (see, e.g., Howell v New York Post Co., 81 NY2d 115, 123; Stephano v News Group Publs., 64 NY2d 174, 184). This is because a newsworthy article is not deemed produced for the purposes of advertising or trade. Additionally, these principles reflect "constitutional values in the area of free speech" (Howell v New York Post Co., supra, 81 NY2d, at 123).

Third, this Court has held that "newsworthiness" is to be broadly construed. Newsworthiness includes not only descriptions *442 of actual events (see, e.g., Freihofer v Hearst Corp., 65 NY2d 135 [details of matrimonial action]; Gautier v Pro-Football, Inc., 304 NY 354 [halftime show at football game]) but also articles concerning political happenings, social trends or any subject of public interest (see, Beverley v Choices Women's Med. Ctr., 78 NY2d 745, 752; Stephano v News Group Publs., supra, 64 NY2d, at 184). Significantly, the fact that a publication may have used a person's name or likeness "solely or primarily to increase the circulation" of a newsworthy article—and thus to increase profits—does not mean that the name or likeness has been used for trade purposes within the meaning of the statute. Indeed, "most publications seek to increase their circulation and also their profits" (Stephano v News Group Publs., supra, at 184-185). Whether an item is newsworthy depends solely on "the content of the article"—not the publisher's "motive to increase circulation" (id., at 185; see also, Freihofer v Hearst Corp., supra, 65 NY2d, at 141).

Applying these principles, courts have held that a wide variety of articles on matters of public interest—including those not readily recognized as "hard news"—are newsworthy (see, e.g., Stephano v News Group Publs., supra, 64 NY2d, at 179-186 [picture of plaintiff wearing leather bomber jacket in column about "new and unusual products and services"]; Abdelrazig v Essence Communications, 225 AD2d 498 [picture of plaintiff in "African garb" concerned "newsworthy fashion trends in the Black community"], lv denied 88 NY2d 810; Creel v Crown Publs., 115 AD2d 414 [picture of plaintiffs illustrating guide to nude beaches]; Lopez v Triangle Communications, 70 AD2d 359, 360 ["make-over" pictures in Seventeen magazine]; Rand v Hearst Corp., 31 AD2d 406, 407-411 [quotation on book cover comparing author to plaintiff], affd 26 NY2d 806; Stern v Delphi Internet Servs. Corp., 165 Misc 2d 21, 22-27 [lewd photograph of plaintiff used in connection with promotion for internet news service]; Welch v Group W. Prods., 138 Misc 2d 856 [use of television commercial in connection with Clio awards]; Namath v Sports Illustrated, 80 Misc 2d 531, 533-535 [photographs of plaintiff in promotional material], affd 48 AD2d 487, affd 39 NY2d 897; Ann-Margret v High Socy. Mag., 498 F Supp 401, 405 [partially nude photograph of plaintiff]).

Consistent with the statutory—and constitutional—value of uninhibited discussion of newsworthy topics, we have time and again held that, where a plaintiff's picture is used to illustrate an article on a matter of public interest, there can be no liability under sections 50 and 51 unless the picture has no real *443 relationship to the article or the article is an advertisement in disguise (see, Howell v New York Post Co., supra, 81 NY2d, at 123; Finger v Omni Publs. Intl., supra, 77 NY2d, at 143; Arrington v New York Times Co., 55 NY2d 433, 440, cert denied 459 US 1146; Murray v New York Mag. Co., 27 NY2d 406, 409). That has been so even where a plaintiff's photograph, when juxtaposed with an article, could reasonably have been viewed as falsifying or fictionalizing plaintiff's relation to the article.

In the recent case of Finger, for example, defendant used a photograph of plaintiffs Joseph and Ida Finger and their six children to illustrate an article on caffeine-aided in vitro fertilization. Plaintiffs sought damages for defendant's use of their photograph, arguing that none of their children were conceived through in vitro fertilization, and that they did not participate in the caffeine-aided fertility project. While this Court was made well aware of the false impression potentially created by defendant's use of the photograph, we nevertheless upheld dismissal of plaintiffs' Civil Rights Law claim, repeating once again that the article was newsworthy, that there was a real relationship between the photograph and the article, and that the article was not an advertisement in disguise (see, 77 NY2d, at 142-145).

Similarly, in Arrington, the New York Times Sunday Magazine used the plaintiff's photograph without his consent "as the most prominent illustration of a feature article entitled `The Black Middle Class: Making It'" (55 NY2d, at 437). Plaintiff alleged that the article expressed views with which he did not agree and that illustrating the article with his photograph was "`distorting' * * * not only of black persons of `middle class' status generally but also of himself, as its supposed exemplar, in particular" (id. [emphasis added]). He complained that "others quite reasonably took the article's ideas to be ones he shared" (id., at 438). And, in his brief to this Court, Arrington argued, citing Binns v Vitagraph Co. (210 NY 51), that "to the extent that publication of [his] photograph * * * conveys the impression that he shares the views stated in the * * * article, it is pure fiction" that is "prohibited by the statute" (plaintiff's brief, at 19). Still, we rejected plaintiff's allegation that he was entitled to recover under the Civil Rights Law, concluding that the newsworthiness exception applied as a matter of law. We declared that plaintiff's contention that the article portrayed him in a "false light" was not cognizable, and that it would be "unwise" for the courts "to essay the dangerous task of passing *444 on value judgments based on the subjective happenstance of whether there is an agreement with views expressed on a social issue" (id., at 441-442).

Again in Murray, plaintiff's photograph, taken while attending a St. Patrick's Day Parade in green regalia, appeared on the cover of the defendant's magazine. "Directly above that photograph" was the caption, "The Last of the Irish Immigrants" (Murray v New York Mag. Co., supra, 27 NY2d, at 408). The article discussed "contemporary attitudes of Irish-Americans in New York City" (id., at 409). Although the Murray plaintiff was "not of Irish extraction" (id., at 408), we ruled that defendant was entitled to summary judgment, because the article was newsworthy and not advertising in disguise, and because a genuine relationship existed between the photograph and the article (id., at 408-410).

Thus, it is clear that a Civil Rights Law §§ 50 and 51 claim does not lie where a plaintiff's photograph is used to illustrate a newsworthy article. There are two limitations: first, there must be a real relationship between the article and the photograph (see, e.g., Thompson v Close-Up, Inc., 277 App Div 848 ["no connection" between photograph and article on dope peddling]), and second, the article cannot be an advertisement in disguise (see, e.g., Beverley v Choices Women's Med. Ctr., supra, 78 NY2d, at 752-753 [calendar was advertisement in disguise]). Of course, a Civil Rights Law claim may lie if a plaintiff's picture is used purely for trade purposes, and not in connection with a newsworthy article (see, Brinkley v Casablancas, 80 AD2d 428 [Civil Rights Law action lies for defendants' distribution of pin-up posters without plaintiff's consent]).

Applying these settled principles, we answer the first certified question in the negative. Plaintiff concedes that the "Love Crisis" column was newsworthy, since it is informative and educational regarding teenage sex, alcohol abuse and pregnancy—plainly matters of public concern. Further, she concedes that the photographs bore a real relationship to the article, and there is no allegation that the article was an advertisement in disguise. Given these facts, Finger, Arrington and Murray dictate that plaintiff may not recover under the Civil Rights Law, regardless of any false implication that might be reasonably drawn from the use of her photographs to illustrate *445 the article.^[2]

Notwithstanding these precedents, plaintiff contends that an action lies under the Civil Rights Law where a photograph, juxtaposed with an article, creates a "substantially fictionalized" implication. In support of this assertion, plaintiff cites two cases: Spahn v Julian Messner, Inc. (18 NY2d 324, vacated 387 US 239, adhered to on remand and rearg 21 NY2d 124 [1967]), and Binns v Vitagraph Co. (210 NY 51 [1913], supra).

In Spahn, defendants published a book entitled The Warren Spahn Story about the life of plaintiff, a famous baseball player. The book, however, was largely fiction. As was found by the trial court, the book was replete with imaginary incidents, invented dialogue, dramatized portrayals and manipulated chronologies. There was no effort and no intention to follow the facts of plaintiff's life. Defendants conducted little research, and never interviewed plaintiff, his family or any baseball player who knew him. This Court upheld a jury verdict granting plaintiff an injunction and damages pursuant to Civil Rights Law § 51, stating that although an unauthorized, truthful biography of plaintiff would be newsworthy, the protection of the newsworthiness doctrine did not extend to this "substantially fictitious biography" (18 NY2d, at 328-329). On remand from the United States Supreme Court to consider the First Amendment implications of the verdict, this Court adhered to its decision, stating that it was "unnecessary" to protect the "knowing fictionalization presented here" (21 NY2d, at 129).

Similarly, in Binns, defendant produced a film about plaintiff's role in rescuing the passengers of a shipwrecked boat. Although based on a true occurrence, the details were manufactured, and the story was "mainly a product of the imagination." This Court held that defendant's conduct was actionable under section 51, stating that although a truthful "recounting or portraying [of] an actual current event" would be protected, the film was designed to amuse the audience rather than to "instruct or educate" (see, Binns v Vitagraph Co., supra, 210 NY, at 56-59).

*446 The District Court and the Second Circuit perceived a tension between the Finger-Arrington-Murray line and the older Binns-Spahn cases, in that the older cases held that the substantially fictionalized use of a plaintiff's name or likeness may be actionable, while the newer cases—without citing Binns or Spahn—focus on the existence of a "real relationship" and whether the work is an advertisement in disguise. Thus, the Second Circuit certified the present questions to us.

We see no inherent tension between the Finger-Arrington-Murray line and the Binns-Spahn line. Finger, Arrington and Murray, which are directly on point, state the rule applicable here. All three cases involved the unauthorized, and allegedly false and damaging, use of plaintiffs' photographs to illustrate newsworthy articles. Because the photographs illustrated newsworthy articles, because there was a real relationship between the photographs and the articles, and because the articles were not advertisements in disguise, we concluded that none of those plaintiffs stated a Civil Rights Law claim. Nor does plaintiff here.

By contrast, Binns and Spahn concerned a strikingly different scenario from the one before us. In those cases, defendants invented biographies of plaintiffs' lives. The courts concluded that the substantially fictional works at issue were nothing more than attempts to trade on the persona of Warren Spahn or John Binns. Thus, under Binns and Spahn, an article may be so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception. Here, by contrast, the "Love Crisis" column was concededly newsworthy. Thus, this case is controlled by Finger—not by Binns or Spahn.

The dissent argues that Binns and Spahn permit a plaintiff to recover if the plaintiff's name or likeness is used in a substantially fictionalized way—including where, as here, the use of a plaintiff's picture in juxtaposition to a newsworthy article creates a false implication (see, dissenting opn, at 449-454). This, however, conflicts with our holdings in Finger, Arrington and Murray that the use of a photograph to illustrate a newsworthy article does not state a claim under the Civil Rights Law—regardless of any false impression created by the use of the photograph—so long as the article is not an advertisement and there is a real relationship between the *447 photograph and the article.^[3] For that same reason, the dissent is wrong to assert that our discussion in Gautier v Pro-Football, Inc. (supra, 304 NY 354, 359-360), which mirrors the analysis in Binns and Spahn, controls the result here (see, dissenting opn, at 450-451). Simply, neither Binns, Spahn nor Gautier concerns the use of a photograph to illustrate a newsworthy article.^[4]

Further, contrary to the dissent, it cannot be fairly argued that fictionalization was not at issue in Finger, Arrington and Murray (see, dissenting opn, at 454-455). Rather, as noted, the nub of plaintiffs' complaints in all three cases was that the use of their pictures in the articles created a false impression about them in the minds of readers. The fictionalization issue was squarely addressed in the Finger briefs (see, plaintiff's brief, at 5, 10-13; defendant's brief, at 3, 28-33), as well as in the Arrington briefs (see, plaintiff's brief, at 19). Indeed, in his brief to this Court, Arrington cited Binns for the proposition that "fiction" was actionable under sections 50 and 51 (see, id.). In response, defendant argued that, under Murray, Arrington could not recover because the picture bore a real relationship to the newsworthy article (see, defendant's brief, at 11-25). We rejected the very same claim in Arrington that plaintiff raises here: that the Civil Rights Law allows recovery where the juxtaposition of a photograph to the text is distorting in its implication that plaintiff is the subject of the article. Thus, it is clear from Finger, Arrington and Murray that when a plaintiff's likeness is used to illustrate a newsworthy article, the plaintiff may not recover under sections 50 and 51 even if the use of the likeness creates a false impression about the plaintiff. This holding applies equally in the case at hand.

Also contrary to the dissent, our result would be the same whether plaintiff were Jamie Messenger or a famous person, *448 like Shirley Temple (see, dissenting opn, at 452-453). The test is not whether plaintiff is a public or private figure. Rather, the analysis centers on whether the photograph bears a real relationship to a newsworthy article and is not an advertisement in disguise. Where those requirements are met, there is no cause of action under the Civil Rights Law.

Notably, if the newsworthiness exception is forfeited solely because the juxtaposition of a plaintiff's photograph to a newsworthy article creates a false impression about the plaintiff, liability under Civil Rights Law § 51 becomes indistinguishable from the common-law tort of false light invasion of privacy. One form in which the false light invasion of privacy tort "frequently appears is the use of the plaintiff's picture to illustrate a book or an article with which he has no reasonable connection, with the implication that such a connection exists" (Prosser and Keeton, Torts § 117, at 864 [5th ed] [emphasis added]). New York does not recognize such a common-law tort (see, Howell v New York Post Co., supra, 81 NY2d, at 123-124).

Accordingly, the first certified question should be answered in the negative, and we need not address the second.

BELLACOSA, J. (dissenting).

I respectfully disagree and would answer the first question in the affirmative. Under the analysis of the Per Curiam opinion, no matter what the published photographs of plaintiff depict or connote, if the words of the column project an abstractly newsworthy subject matter, then the judicially created newsworthiness exemption forecloses the remedy of Civil Rights Law §§ 50 and 51. This latest extension marginalizes the statutory authorization that was enacted expressly to supply potential redress for aggrandizing uses of a person's "portrait or picture."

We all agree that the courts have properly created a newsworthiness exception to liability pursuant to the Civil Rights statute. The courts have, however, also harnessed a runaway newsworthiness exemption with exceptions. Part of the puzzle here is whether there are two exceptions—advertisement in disguise and no "real relationship"—or three—also a distinctive "material and substantial falsification" prong.

A recent decision of this Court fosters the vexing implication that only two exceptions to the newsworthiness exemption exist because the case happens to mention only two (Finger v Omni Publs. Intl., 77 NY2d 138). That, in part, may explain the Second Circuit Court's quandary as to whether the *449 "substantial falsification" facet is still viable to mitigate a functionally sweeping newsworthiness immunization against the invocation of the statute.

If the "fictionalization exception" remains part of New York law, as I contend, then despite the newsworthiness of part of the published column—which might otherwise operate to block this plaintiff's invocation of the remedial statute against defendants—Messenger's victory before a Federal jury could be sustainable. If, on the other hand, the "fictionalization exception" is rendered a "dead letter"—and newsworthiness reigns—then Messenger's Federal lawsuit is equally comatose.

I.

Civil Rights Law § 50 provides that anyone using a picture of a living person for the purposes of trade, without having first obtained the written consent of such person, or a parent or guardian, commits a misdemeanor. Civil Rights Law § 51 adds the civil damages teeth. These complementary provisions were enacted in response to early judicial reluctance against recognizing a common-law right of privacy, coupled with a judicially expressed encouragement for a legislative solution (see, Roberson v Rochester Folding Box Co., 171 NY 538 [1902]).

The Legislature acted in 1903. It also left the courts with a hefty burden of substantive interpretation that continued through the whole 20th Century, and now into Year 2000.^[1] Shortly after the statutory framework came into being, this Court examined the fictionalization of a plaintiff's exploits and found defendants liable under the statute (Binns v Vitagraph Co., 210 NY 51 [1913]). The Court also warned of the difficulties of "the practical enforcement of any rule which may be adopted in construing and enforcing the statute so far as it relates to purposes of trade;" it encouraged further legislative action *450 to clarify the key phrase (Binns v Vitagraph Co., supra, at 58-59). No new enactment ensued, and the courts have continued the struggle to apply the definition of "purposes of trade."

A comprehensive exegesis emerged in 1937 in Lahiri v Daily Mirror (162 Misc 776 [Sup Ct, NY County, Sheintag, J.]). An important feature of the opinion includes an observation that "the emphasis [in cases where liability pursuant to the statute was found] was placed on dramatization rather than information" (Lahiri v Daily Mirror, supra, at 781 [emphasis added]).

Courts continued to use the "dramatization" feature to distinguish between the statute's availability or inertness. When "the total dominant impression conveyed is basically not a true picture or representation of the actual salient facts," and when the "article read as a whole, together with the headings and the pictorial representations that accompany it, constitute a sensationalized version of facts embellished with matters drawn from the author's imagination," the material may go "far beyond the scope of proper immunity pertaining to the publication of current or past news;" there, the complaint should not be stricken (Sutton v Hearst Corp., 277 App Div 155, 156-157 [1st Dept 1950], lv denied 277 App Div 873, citing Binns v Vitagraph Co., supra [emphasis added]). Also, when the photograph of a plaintiff was juxtaposed next to an article about a subject (e.g., dope peddling) with which the plaintiff had no connection, the use has been deemed for purposes of trade (Thompson v Close-Up, Inc., 277 App Div 848 [1st Dept 1950]).

Shortly after these Appellate Division decisions, this Court ruled on a statutory privacy claim stemming from the televised projection of a plaintiff who had performed during the halftime show of a professional football game. After the Court found that the telecast of the plaintiff's act had not been used for advertising purposes, this Court plumbed the definition of "use for purposes of trade" with respect to television, which, "[l]ike other media * * * may have either a trade aspect or an informative or news aspect" (Gautier v Pro-Football, Inc., 304 NY 354, 359 [1952]). The Court noted that use of a name or picture "in connection with an item of news or one that is newsworthy, is not a use for purposes of trade within the meaning of [the statute]" (Gautier v Pro-Football, Inc., supra, at 359). It cautioned, however, that there must be a "legitimate" connection between the item of news and the use of a name or *451 picture in order to remove the use from the realm of "trade" (Gautier v Pro-Football, Inc., supra, at 359, citing, inter alia, Lahiri v Daily Mirror, supra).

The Court also discretely emphasized that simply because a public figure or a presently newsworthy person is the proper subject of news or informative presentation, the newsworthy "privilege does not extend to commercialization of his personality through a form of treatment distinct from the dissemination of news or information" (id., at 359, citing, inter alia, Binns v Vitagraph Co., supra; Sutton v Hearst Corp., supra). Alluding particularly to Sutton, the Court underscored the fact that the question was whether the story "as presented to the reader" was "so embellished in the telling that it was no longer a factual report" (Gautier v Pro-Football, Inc., supra, at 360). If the story was so dramatized, its newsworthiness immunity from the operation of the statute is forfeited and lost (see, id.).

The precedential value of Gautier, amidst the nuanced history of this statute in relation to the interpretive precedents, is—or should still be—a matter of greater qualitative, yet not controlling, value than the majority allows.

II.

This Court enunciated a fictionalization exception to newsworthiness immunity, consistent with the seminal Gautier analysis, when it found that a substantially fictionalized biography constituted an unauthorized exploitation of the plaintiff's personality "for purposes of trade" (see, Spahn v Julian Messner, Inc., 18 NY2d 324 [1966], adhered to on rearg 21 NY2d 124). The Court recognized that even a public figure's "personality" may be "fictionalized," and as such, the baseball star's story was found to have exploited his persona for commercial value (see, id., at 328).

On reargument of Spahn in light of the United States Supreme Court's Time, Inc. v Hill (