Messenger v. Gruner + Jahr Printing & Publishing

Resolution of issue certified to the New York Court of Appeals on whether a plaintiff may recover under New York’s statutory right of privacy, N.Y. Civil Rights Law §§ 50 and 51, when a publisher uses the plaintiffs image in a substantially fictionalized way to illustrate a newsworthy piece.

*123Reversed and remanded.

YM, Young and Modem, a magazine for teenage girls published by Gruner + Jahr Printing and Publishing, used Jamie Messenger’s picture, admittedly without adequate consent, to illustrate its “Love Crisis” column in its June/July 1995 issue. The column, whose headline or “pull quote” was “ T got trashed and had sex with three guys,’ ” included a letter from an author identified only as “Mortified.” The author of the letter related the events described in the pull quote and sought advice from YM’s editor on how to deal with the consequences. The editor responded that the author had made a “major mistake,” suggested that she be tested for sexually transmitted diseases and pregnancy, and offered other advice. Messenger’s mother brought this action on her behalf, arguing that Gruner + Jahr violated Messenger’s statutory right of privacy under New York’s Civil Rights Law, §§50 and 51, which permit recovery when “[a] person, firm or corporation ... uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person .... ” N.Y.Civ. Rights Law §§ 50, 51 (McKinney 1992). After a trial in the United States District Court for the Southern District of New York (Lewis A. Kap-lan, Judge), a jury found in Messenger’s favor, awarding her $100,000 in damages.

Gruner + Jahr appealed from the judgment, specifically arguing that the District Court erred in denying its motion for summary judgment because the use of Messenger’s photographs fit within the broad definition of newsworthy material or material in the public interest. Because New York courts have consistently held that §§ 50 and 51 do not apply in circumstances involving newsworthy material or material in the public interest, Gruner + Jahr contended that it was entitled to judgment as a matter of law. The District Court denied the motion, concluding that New York courts have not permitted application of the newsworthiness exception in cases where the use “is ‘infected with material and substantial falsity’ ” or fictionalization. See Messenger v. Gruner + Jahr USA Publ’g, 994 F.Supp. 525, 529 (S.D.N.Y.1998) (quoting Lerman v. Flynt Distrib. Co., 745 F.2d 123, 132-33 (2d Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985)). The District Court decided that because a reasonable jury might find that “the publication created the impression that Messenger had had the experiences that were the subject of the column,” id. at 528, the fictionalization limitation on the newsworthiness exception might apply and therefore summary judgment was not appropriate.

Though Gruner + Jahr raised several other issues in its appeal, and Messenger cross-appealed arguing that the District Court improperly limited her recovery, we decided that the central, dispositive issue in this appeal was whether a plaintiff can recover under New York’s statutory right of privacy, N.Y.Civ. Rights Law §§ 50 and 51, when a publisher uses the plaintiffs image in a substantially fictionalized way to illustrate a newsworthy piece. See Messenger v. Gruner + Jahr Printing and Publ’g, 175 F.3d 262, 264 (2d Cir.1999). Because we believed this important issue to be an open one under New York law, we certified the following questions to the New York Court of Appeals:

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

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

Id. at 266.

The New York Court of Appeals has answered the first question in the negative, see Messenger v. Gruner + Jahr Printing and Publ’g, 94 N.Y.2d 436, 706 *124N.Y.S.2d 52, 727 N.E.2d 549 (2000) (per curiam), attached as an Appendix to this opinion, holding that “a Civil Rights Law §§ 50 and 51 claim does not lie where a plaintiffs photograph is used to illustrate a newsworthy article,” subject only to two limitations: “first, there must be a real relationship between the article and the photograph ..., and second, the article cannot be an advertisement in disguise.” Id. at 127-28 (internal citations omitted). The court also noted that “a Civil Rights Law claim may lie if a plaintiffs picture is used purely for trade purposes, and not in connection with a newsworthy article.” Id. at 128. Under this analysis, the Court of Appeals determined that, as plaintiff conceded, the “Love Crisis” column in this case was newsworthy, the photographs of Messenger bore a real relationship to the article, and the article was not an advertisement in disguise. See id. Thus, the Court of Appeals concluded that Messenger could not recover under §§ 50 and 51, “regardless of any false implication that might be reasonably drawn from the use of her photographs to illustrate the article.” Id. at 128. Having answered the first question in the negative, the Court of Appeals determined that it need not address the second certified question. Id. at 130. Likewise, we need not address the other issues raised in this appeal, which have been rendered moot by the New York Court of Appeals’s decision.

Accordingly, we vacate the District Court’s judgment and remand for further proceedings consistent with this opinion.

OPINION

Plaintiff, a 14-year-old aspiring Florida model, posed for a series of photographs in New York to appear in Young and Modem (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 fall-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 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 *125dismissed plaintiffs 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 N.Y.2d 124, 127, 286 N.Y.S.2d 832, 233 N.E.2d 840). 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 Publications Intl., 77 N.Y.2d 138, 141-142, 564 N.Y.S.2d 1014, 566 N.E.2d 141). 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 N.Y.2d 948, 694 N.Y.S.2d 342, 716 N.E.2d 177):

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

“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 N.Y. 538, 64 N.E. 442; see also, Wojtowicz v. Delacorte Press, 43 N.Y.2d 858, 860, 403 N.Y.S.2d 218, 374 N.E.2d 129). 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 noncon-sensual commercial appropriations of the name, portrait or picture of a living person” (Finger v. Omni Publications, supra, *12677 N.Y.2d 138, 141, 564 N.Y.S.2d 1014, 566 N.E.2d 141; see also, Prosser, Privacy, 48 CalLRev 388, 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 N.Y.2d 115, 123, 596 N.Y.S.2d 350, 612 N.E.2d 699; Stephano v. News Group Publications, 64 N.Y.2d 174, 184, 485 N.Y.S.2d 220, 474 N.E.2d 580). 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, supra, 81 N.Y.2d, at 123, 596 N.Y.S.2d 350, 612 N.E.2d 699).

Third, this Court has held that “newsworthiness” is to be broadly construed. Newsworthiness includes not only descriptions of actual events (see, e.g., Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 480 N.E.2d 349 [details of matrimonial action]; Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485 [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 Medical Center, 78 N.Y.2d 745, 752, 579 N.Y.S.2d 637, 587 N.E.2d 275; Stephano v. News Group, supra, 64 N.Y.2d, at 184, 485 N.Y.S.2d 220, 474 N.E.2d 580). 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, supra, at 184-185, 485 N.Y.S.2d 220, 474 N.E.2d 580). Whether an item is newsworthy depends solely on “the content of the article” — not the publisher’s “motive to increase circulation” (id., at 185, 485 N.Y.S.2d 220, 474 N.E.2d 580; see also, Freihofer v. Hearst, supra, 65 N.Y.2d, at 141, 490 N.Y.S.2d 735, 480 N.E.2d 349).

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, supra, 64 N.Y.2d, at 179-186, 485 N.Y.S.2d 220, 474 N.E.2d 580 [picture of plaintiff wearing leather bomber jacket in column about “new and unusual products and services”]; Abdelrazig v. Essence Communications, 225 A.D.2d 498, 639 N.Y.S.2d 811 [picture of plaintiff in “African garb” concerned “newsworthy fashion trends in the Black community”], lv denied 88 N.Y.2d 810, 649 N.Y.S.2d 377, 672 N.E.2d 603; Creel v. Crown Publishers, 115 A.D.2d 414, 496 N.Y.S.2d 219 [picture of plaintiffs illustrating guide to nude beaches]; Lopez v. Triangle Communications, 70 A.D.2d 359, 360, 421 N.Y.S.2d 57 [“make-over” pictures in Seventeen magazine]; Rand v. Hearst Corp., 31 A.D.2d 406, 407-411, 298 N.Y.S.2d 405 [quotation on book cover comparing author to plaintiff], aff'd 26 N.Y.2d 806, 309 N.Y.S.2d 348, 257 N.E.2d 895; Stern v. Delphi Internet Services Corp., 165 Misc.2d 21, 22-27, 626 N.Y.S.2d 694 [lewd photograph of plaintiff used in connection with promotion for internet news service]; Welch v. Group W. Productions, 138 Misc.2d 856, 525 N.Y.S.2d 466 [use of television commercial in connection with Clio awards]; Namath v. Sports Illustrated, 80 Misc.2d 531, 533-535, 363 N.Y.S.2d 276 [photographs of plaintiff in promotional material], aff'd 48 A.D.2d 428, 370 N.Y.S.2d 943, and affd 39 N.Y.2d 897, 386 N.Y.S.2d 397, 352 N.E.2d 584; Ann-Margret v. High Society Magazine, 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 plaintiffs 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 relationship to the article or *127the article is an advertisement in disguise (see, Howell v. New York Post, supra, 81 N.Y.2d, at 123, 596 N.Y.S.2d 350, 612 N.E.2d 699; Finger v. Omni Publications, supra, 77 N.Y.2d, at 143, 564 N.Y.S.2d 1014, 566 N.E.2d 141; Arrington v. New York Times Co., 55 N.Y.2d 433, 440, 449 N.Y.S.2d 941, 434 N.E.2d 1319, cert denied 459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994; Murray v. New York Magazine Co., 27 N.Y.2d 406, 409, 318 N.Y.S.2d 474, 267 N.E.2d 256). That has been so even where a plaintiffs photograph, when juxtaposed with an article, could reasonably have been viewed as falsifying or fictionalizing plaintiffs 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’ CM 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 N.Y.2d, at 142-145, 565 N.Y.S.2d 434, 566 N.E.2d 633).

Similarly, in Arrington, the New York Times Sunday Magazine used the plaintiffs photograph without his consent “as the most prominent illustration of a feature article entitled ‘The Black Middle Class: Making It’ ” (55 N.Y.2d, at 437, 449 N.Y.S.2d 941, 434 N.E.2d 1319). 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, 449 N.Y.S.2d 941, 434 N.E .2d 1319). And, in his brief to this Court, Arrington argued, citing Binns v. Vitagraph Co. of America (210 N.Y. 51, 103 N.E. 1108), 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” (Plaintiffs Brief, at 19). Still, we rejected plaintiffs 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 plaintiffs 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 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, 449 N.Y.S.2d 941, 434 N.E .2d 1319).

Again in Murray, plaintiffs 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 Magazine Co., supra, 27 N.Y.2d, at 408, 318 N.Y.S.2d 474, 267 N.E.2d 256). The article discussed “contemporary attitudes of Irish-Americans in New York City” (id., at 409, 318 N.Y.S.2d 474, 267 N.E.2d 256). Although the Murray plaintiff was “not of Irish extraction” (id., at 408, 318 N.Y.S.2d 474, 267 N.E.2d 256), 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, 318 N.Y.S.2d 474, 267 N.E.2d 256).

Thus, it is clear that a Civil Rights Law §§ 50 and 51 claim does not lie where a plaintiffs photograph is used to illustrate a *128newsworthy 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, 277 A.D. 848, 98 N.Y.S.2d 300 (1950) [“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, supra, 78 N.Y.2d, at 752-753, 579 N.Y.S.2d 637, 587 N.E.2d 275 [calendar was advertisement in disguise]). Of course, a Civil Rights Law claim may lie if a plaintiffs picture is used purely for trade purposes, and not in connection with a newsworthy article (see, Brinkley v. Casablancas, 80 A.D.2d 428, 438 N.Y.S.2d 1004 [CM Rights Law action lies for defendants’ distribution of pin-up posters without plaintiffs 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 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 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543, vacated 387 U.S. 239, 87 S.Ct. 1706, 18 L.Ed.2d 744, adhered to on remand 21 N.Y.2d 124, 286 N.Y.S.2d 832, 233 N.E.2d 840 [1967]), and Binns v. Vitagraph Co. of America (210 N.Y. 51, 103 N.E. 1108 [1913]).

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 plaintiffs 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 N.Y.2d, at 328-329, 274 N.Y.S.2d 877,