MESSENGER v. GRUNER + JAHR
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.
Decided February 17, 2000.
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.
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. 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
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
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). 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 N.Y.2d 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 N.Y.2d 948):
We answer the first question in the negative, and therefore need not reach the second.
New York does not recognize a common-law right of privacy (see, Roberson v Rochester Folding Box Co., 171 N.Y. 538; see also, Wojtowicz v Delacorte Press, 43 N.Y.2d 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:
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 N.Y.2d 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 N.Y.2d 115, 123; Stephano v News Group Publs., 64 N.Y.2d 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
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 A.D.2d 498 [picture of plaintiff in "African garb" concerned "newsworthy fashion trends in the Black community"], lv denied 88 N.Y.2d 810; Creel v Crown Publs., 115 A.D.2d 414 [picture of plaintiffs illustrating guide to nude beaches]; Lopez v Triangle Communications, 70 A.D.2d 359, 360 ["make-over" pictures in Seventeen magazine]; Rand v Hearst Corp., 31 A.D.2d 406, 407-411 [quotation on book cover comparing author to plaintiff], affd 26 N.Y.2d 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 A.D.2d 487, affd 39 N.Y.2d 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
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 N.Y. 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
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 A.D.2d 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
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, vacated 387 U.S. 239, adhered to on remand and rearg 21 N.Y.2d 124 ), and Binns v Vitagraph Co. (210 N.Y. 51 , 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).
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
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,
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 N.Y.2d 138). That, in part, may explain the Second Circuit Court's quandary as to whether the
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.
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 N.Y. 538 ).
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.
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 N.Y. 354, 359 ). 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
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.
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 N.Y.2d 324 , adhered to on rearg 21 N.Y.2d 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 (385 U.S. 374) decision, this Court stood by its initial decision with respect to the fictionalized account of the professional athlete's life. The Court, of course, also necessarily imbued the authoritative interpretation of New York substantive law with the requisite constitutional speech protections:
The Court found that the use of "invented dialogue" to supply "a dramatic portrayal attractive to the juvenile reader" in a manner "customary" for the type of book involved did not entitle the defendants to publish such "knowing fictionalization," which was "destructive of an individual's right * * * to be free of the commercial exploitation of his name and personality" (Spahn v Julian Messner, Inc., 21 NY2d, supra, at 127-129). Thus, if there was any doubt after Gautier that the courts should make a fictionalization/falsification examination in a "purposes of trade" inquiry, Spahn II provided enduring insights. The quoted language offers significant relevance, not the ephemeral distinguishments proffered by the majority.
The protection for exploited persons against falsification or fictionalization for public figures was also extended to private individuals in Pagan v New York Herald Tribune (32 A.D.2d 341 [1st Dept 1969], affd without opn 26 N.Y.2d 941 ). The Appellate Division opinion summarized pertinent law regarding when the use of a name or picture falls outside the statute's meaning of "purposes of trade":
If a Shirley Temple-like set of photos were used with this identical column, that would more than likely be actionable, as trading on the persona of a famous individual. The 14-year-old plaintiff adolescent, a private person who cannot even legally give consent to the use of her photos, should have no less a remedy for someone trading on her persona and aspirations, the particular protection tendered by the statute. This contrast dramatizes the irony of a real tension, as I see it, between the
This Court more recently has had an opportunity to examine the Civil Rights Law in the context of a series of cases that analyzed essentially only the "no real relationship" exception. A magazine cover depicted a plaintiff, not of Irish extraction, in a St. Patrick's Day Parade, with the title of the feature article, "The Last of the Irish Immigrants" (Murray v New York Mag. Co., 27 N.Y.2d 406 ). The opinion addressed only the question "`whether the plaintiff's photograph has some relevance to the article'" (id., at 408), but part of Murray has become the resounding sound bite for Civil Rights Law §§ 50 and 51 jurisprudence as follows:
However, as sound bites are often misleading due to their lack of context, so too is Murray's extrapolation from Dallesandro. A careful tracing of the Dallesandro material that has popped out as "the quotable quote" from Murray reveals that Dallesandro faithfully cited to and relied on the seminal whole-cloth of Gautier:
All the pieces are pivotal, in my view, for a plenary appreciation of the jurisprudence affecting the instant controversy—not
Additionally, Murray also extracts from Pagan a quotation pertinent to the Murray issue, to wit, "that picture was published * * * `in connection with the presentation * * * of a matter of legitimate public interest to readers'" (27 NY2d, at 409). Again, this excerpt summarized the state of New York law as far as was concerned in Murray, replacing with ellipses the material that, because of the limited nature of the inquiry in Murray, was not necessarily apt—unlike in the instant case. Indeed, the omitted language is key here—the presentation must be made "without false or misleading material" (Pagan v New York Herald Tribune, 32 A.D.2d 341, 343, affd without opn 26 N.Y.2d 941, supra).
The abbreviated use of excerpts from the line of precedents is understandable in Murray and more recent cases involving "real relationship" core problems (see, Arrington v New York Times Co., 55 N.Y.2d 433 ; see also, Stephano v News Group Publs., 64 N.Y.2d 174, 184-185 ). The truncated use, however, must be recognized and reconciled to provide a thorough understanding of the applicable principles.
The most recent and next significant Court of Appeals development analyzing the "no real relationship" issue is the case that seems to have sealed the Second Circuit Court of Appeals' need to certify to this Court its uncertainties about the state of New York law (Finger v Omni Publs. Intl., 77 N.Y.2d 138 ). In the briefs to this Court, the Finger plaintiffs urged one question only—"whether a real relationship existed between the photograph * * * and an article dealing specifically with caffeine enhanced in vitro fertilization." The plaintiffs only tangentially touched on the falsification question, while they relied primarily on Arrington and Murray. They urged that the story "is of such a tenuous nature that it creates the false and misleading perception that [the] family was conceived using in vitro fertilization or caffeine enhancement techniques."
The fact that Finger did not purport to address the falsification issue could support the argument that this third exception did not survive Finger. The answer, however, to the Second Circuit's question of whether Finger mutes the Spahn falsification exception may more reliably be found, I respectfully submit, by nimble, precise tracings to the authority sources found within Finger itself. Finger continues the scrunched Murray-Dallesandro snippet that replaced with ellipses Dallesandro's reference to Gautier (Finger v Omni Publs. Intl., supra, at 142). Intriguingly, however, Finger also cites to page 185 of the Stephano opinion. This important reference contains (1) the citation to the page in Gautier, which, citing to Sutton, issued the admonition against dramatization or fictionalization, and (2) the citation to Pagan, which extended the fictionalization concern to private persons. The failure to discuss Spahn, the most obvious fictionalization precedent, in Finger is thus explained away for me, though my over-all view is summed up by the majority as a misinterpretation. Spahn, unlike Finger, involved a public figure. The reference, instead, to a case that relied on Pagan is far more revealing. Pagan essentially tells us that if a purveyor is going to present the photograph of an individual, even in conjunction with a newsworthy item, the presentation must be legitimately made "without false or misleading material" (Pagan v New York Herald Tribune, supra, at 343). That is still good law and supports the affirmative answer I would give to the question posed in relation to this controversy.
In any event, the substantive law question of this case was simply not the dispositive or necessarily implicated thrust in Finger. Thus, the instant case is also demonstrably distinguishable from Finger on its facts and import. In Finger, "[n]either
Here, the caption juxtaposed next to and across a large picture of Jamie Messenger, looking "hung over," states, "I got trashed and had sex with three guys * * * Even worse, I heard them laughing about it the next day" (emphasis added). The smaller caption within the photograph with Messenger reads, "You made a pretty big mistake" (emphasis added). Another caption within another picture of Messenger looking distraught reads, "Afraid you're pregnant?" (emphasis added). These captions, "pull quotes" and photographs leap off the page with the real relationship to the published material—which is not contested—but also with the substantial falsification of the photographs in the kind, manner and degree to which they were exploited. In Finger, there was no indication in any fashion that the plaintiffs in the associated picture had experienced what was described in the content of the article. In this case, that very linkage is soldered together and dramatized. In my opinion, that is what takes this case over tolerable lines and limits.
Here, a Federal court jury found that reasonable readers would think Messenger was unquestionably the subject and signatory of an ersatz letter. Despite the abstracted public-interest newsworthy quality of the editor's answer to the letter, the falsified connection—"I got trashed"—personalizes the matter in a devastating fashion. Even though the column enjoys the academic quality of a newsworthy subject matter, its presentation publicly paraded plaintiff as the epitomized subject for sensationalized impact.
I am unable to discern support in this Court's developed line of analysis—until today—for the conclusion that this substantially fictionalized portrayal of Messenger's likeness is beyond the statute's ken just because something about it is newsworthy in a general way. That, as I understand it—or misinterpret it, as the majority characterizes my view—is the bottom line of
In sum, the practical and theoretical consequence of the negative answer justifies a too-facile escape valve from the operation of the statute, one that is also unilaterally within the control of the alleged wrongdoer. The paradigm for editors is a "newsworthy" homily to lovesick adolescents or any other audience; they then just have to use a journalistic conceit of tieing the advice to a purported letter to the editor, with an inescapable first person identification of the letter as originating with any adolescent in the photo array. When an aggrieved person like Messenger reaches for the statutory lifeline, the newsworthiness notion dissipates it into a dry mirage. That is not fair or right.
Strong New York jurisprudence and protection of constitutional speech guarantees—that I too support—are urged as overarching policy reasons for courts to be very circumspect with respect to claims under the Civil Rights statutes. That should not be a preemptive justification for courts to neutralize, in functional applications, a remedial statute that this Court nudged into existence. In the endeavor to live up to this Court's and New York's robust tradition of free speech and free press protections, statutory rights and reputations of individuals can also be proportionately safeguarded and legitimately redressed.
Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the
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