Heller v. Family Circle, Inc.

for summary judgment dismissing the complaint as to them. Special Term denied their consolidated motions. We now reverse the order of Special Term and grant the motions for summary judgment of the media defendants. Section 51 of the Civil Rights Law provides, in pertinent part: “Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.” However, with respect to section 51 of the Civil Rights Law: “The law is settled * * * that ‘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’. (Dallesandro v. Holt & Co., 4 A D 2d 470 , 471, app. dsmd. 7 N Y. 2d 735 ; see, also, Pagan v. New York Herald Tribune, 32 A D 2d 341 , affd. 26 N Y 2d 941 ; Oma v. Hillman Periodicals, 281 App. Div. 240 ; Thompson v. Close-Up, 277 App. Div. 848 .)” (Murray v New York Mag. Co., 27 NY2d 406 , 408-409.) These same principles apply where the complaint alleges misuse of plaintiff’s name, rather than his photograph (see Oma v Hillman Periodicals, 281 App Div 240 ). Plaintiff does not dispute the media defendants’ contentions that the article in question is “an article on a matter of public interest” and that the use of plaintiff’s name bears a “real relationship” to the article (see Howard v Des Moines Register & Tribune Co., 283 NW2d 289 , 303 [Iowa], cert den 445 US 904 ). Instead, in plaintiff’s view, the sole question presented to this court is whether her claim that the article is an “advertisement in disguise” presents triable issues of fact, so that the merits of her complaint may not be properly determined on a motion for summary judgment. On the other hand, the media defendants’ first line of defense is a request that this court hold that the “advertisement in disguise” theory has no continuing validity in New York, so that judgment is required in their favor even if there is a triable issue of fact concerning whether the article is an “advertisement in disguise”. The media defendants’ arguments for judicial disapproval of the theory that an article that is on a matter of public interest and uses a person’s name in a manner that bears a real relationship to the article may still be actionable under sections 50 and 51 of the Civil Rights Law merely because it is an “advertisement in disguise”, are not without some force. Among other things, they contend, without contradiction, that, according to the reported decisions, the “advertisement in disguise” theory has never been recognized in New York to the extent that a judgment has been awarded under that theory. They also contend that the courts have developed virtually no standards for distinguishing “advertisements in disguise” from articles that are not actionable under the Civil Rights Law. The consequent risk is asserted to be that those responsible for publishing a newsworthy article about a new invention or product which mentions an individual’s name for a legitimate purpose related to the article, but without written consent, face the possibility of not only being sued under the Civil Rights Law, but also being unable to obtain summary disposition of unfounded litigation. The media defendants contend that recognition of this risk could result in an unwarranted interference with the free flow of newsworthy information. However, since the Court of Appeals has stated fairly recently that “[t]he law is settled” that an article may be

actionable if it is an “advertisement in disguise” (Murray v New York Mag. Co., 27 NY2d 406 , 408-409, supra), it is not our place to declare the demise of that theory. This is particularly so since, in any event, the media defendants have established that plaintiff’s claim that the article in question is an “advertisement in disguise” raises no triable issues of fact, when the facts of this case are compared with those of other cases where defendants’ motions for summary judgment or dismissal for failure to state a cause of action have been granted despite the courts’ recognition of that theory. Although plaintiff has completed discovery, her claim that the article in question is an “advertisement in disguise” is based on nothing more than the contents of the article. But the article, on its face, is no more an “advertisement in disguise” than were the articles in Pagan v New York Herald Tribune ( 32 AD2d 341 , affd 26 NY2d 941 ), La Forge v Fairchild Pub. ( 23 AD2d 636 ), or Dallesandro v Holt & Co. ( 4 AD2d 470 , app dsmd 7 NY2d 735 ), where accelerated judgment was granted to defendants despite the courts’ references to the “advertisement in disguise” theory (see, also, Murray v New York Mag. Co., 27 NY2d 406 , supra; Lopez v Triangle Communications, 70 AD2d 359 ). Moreover, it is undisputed that the article in question was published six years after publication of the first edition and about six months prior to publication of the second edition, that Family Circle had no financial interest in the book, that Family Circle paid Dodd Mead, an alleged advertiser, for the right to use the article, and that Dodd Mead paid Family Circle nothing despite the fact that an advertisement that was the same length as the article would have cost $105,000. We note that even if the article might have had an incidental promotional effect upon the sale of the book, that alone would not give rise to liability under the Civil Rights Law (see Murray v New York Mag. Co., 27 NY2d 406 ,409, supra; Oma v Hillman Periodicals, 281 App Div 240 , 242-245, supra). For these reasons, the media defendants are entitled to summary judgment dismissing the complaint as against them. Margett, J. P., O’Connor, Weinstein and Thompson, JJ., concur.