Lead Opinion
OPINION OF THE COURT
This action, for money damages and injunctive relief, arises from the New York Times Magazine’s nonconsensual publication of plaintiff Clarence W. Arrington’s photograph as the most prominent illustration of a feature article entitled “The Black Middle Class: Making It”. The magazine, a part of the Sunday edition of The New York Times, is circulated widely throughout city, State, and Nаtion, and elsewhere. The picture, apparently taken while Arrington was walking along a street in New York City, was prominently displayed across the cover of the publication. Arrington, whose name was not mentioned in the article, had no prior knowledge that the photograph had been taken, much less that it would be sold оr published or that it would be used in connection with this or any other article. These facts are unquestioned.
Defendant The New York Times Company (hereinafter the Times), which published the article, in its brief describes it as a commentary on “the role of the expanding black middle/professional class in today’s society”, in the course of which, among other things, its author concludes that “this group has been growing more removed from its less fortunate brethren.” Arrington, a young financial analyst, who then plied his profession with General Motors and now pursues it with the Ford Foundation, regards the text of the article not only as controversial but as one expressive of views he does not credit or practice. Moreover, as he alleges in this action, he and readers who knew him found it “insulting, degrading, distorting and disparaging” not only of black persons of “middle class” status generally but also of himself, as its supposed exemplar, in particular. This, he goes on, subjected him to public scorn
Plaintiff’s complaint, sounding in tort, was predicated on three theories: violation of sеctions 50 and 51 of New York’s Civil Rights Law,
Special Term was of the view that sections 50 and 51 will not support a charge of “actionable commercial exploitation where the picture is published in connection with an article of general interest”. On that premise, plus the . additional rationale that in the end it was the Times alone and not its three codefendants who were “responsible for the publiсation [and placement] of the picture”, it dismissed against all the defendants. Nevertheless, in obeisance to what it sensed was'an emerging “right to be let alone, sometimes referred to as [a] constitutional right of
Our analysis may well begin with sections 50 and 51. Facially, these statutes simply ban the use “for advertising purposes, or for the purposes of trade” of the name, portrait or picture of a living person unless that person’s written consent has first been obtained. Yet, in light of the decisional event which led directly to their adoption, what their seemingly uncomplicated texts affirmatively provide must be said to have been overshadowed by what these do not say.
The statutory scheme was enacted as a direct response to Roberson v Rochester Folding Box Co. (
Moreover, this narrow reading of the statutory provisions has not been without sensitivity to the potentially competing nature оf the values the Legislature, on the one hand, served by protecting against the invasion of privacy for purposes of “advertising” or “trade” and, on the other, the values our State and Federal Constitutions bespeak in the area of free speech and free press. Thus, we not too long ago reiterated that “ ‘[а] picture illustrating an article on a matter of public interest is not considered used for the purposes of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise’ ” (Murray v New York Mag. Co.,
Now it can hardly be questioned that the article in this case, dealing as it does with the circumstances and tensions incident to yet another exаmple of the mobility our country prides itself on encouraging within and among our societal groups, relates to a subject of “public interest”, clearly a term to be freely defined (see Lahiri v Daily Mirror, supra, at p 782). Accepting that proposition, plaintiff nevertheless seeks to bring himself within the “no real
Plaintiff’s emphasis, rather, is on the fact that, as he reads it, the article depicts the “black middle class” as one peopled by “materialistic, status-conscious and frivolous individuals without any sense of morаl obligation to those of their race who are economically less fortunate”, a conception of the “class” with which he disclaims any “legitimate connection”.
No more persuasive is plaintiff’s perfectly understandable preference that his photograph not have been employed in this manner and in this connection. However,
For related reasons, plaintiff’s “false light” formulation
However, while plaintiff’s complaint therefore was properly dismissed as a matter of law insofar as it purported to proceed against the Times, at this stage it cannot be said that plaintiff has no claim under these statutes against defendants Gorgoni, Pledge or Contact.
In this connection, it must be remembered that the motion to dismiss, one made under CPLR 3211 (subd [a], par 7), was never converted by notice to one for summary judgment as permitted by CPLR 3211 (subd [c]). In this procedural posture, the allegations of a complaint, supplemented by a plaintiff’s additional submissions, if any, must be given their most favorable intendment (see Rovello v Orofino Realty Co.,
True, the affidavits and exhibits these defendants submitted in support of the mоtion denied important aspects of the roles plaintiff ascribed to Contact and Pledge, but this did no more than create issues of fact. After all, unlike the position of the Times, none of the other three defendants played the part of publisher of the article which plaintiff’s photograph accompaniеd. Were the plaintiff to establish the truth of his allegations, the acts in which one or more of these defendants will have been proved to have engaged will, plainly and simply, have included that of a nonconsensual selling of the photograph. Thus, operating independently from the publisher, each at that point would havе “commercialized the photograph” in “furtherance of [his] trade” (Holmes v Underwood & Underwood,
The statutory claims behind us, and the unavailability of those sounding in common-law privacy apparent, we now turn to the plaintiff’s attempt to advance still another cause of action, posited this time on alleged abridgment of a constitutional right to privacy. To that end, no more need here be said than that, since no State action is involved, plaintiff’s constitutional claim must fail.
Accordingly, the order of the Appellate Division should be modified, with costs to plaintiff against defendants Contact Press Images, Inc., Robert Pledgе and Gianfranco Gorgoni, in accordance with this opinion, and, as so modi
Notes
. Section 50 reads as follows: “A person, firm or corporation that 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, or if a minor of his or her parent or guardian, is guilty of a misdemeanor”.
Section 51, as amended last in 1921 (L 1921, ch 501) makes a violation of section 50 actionable in a civil suit. It specifically provides, as relevant to this case, that “Any person whosе 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 the last section, the jury, in its discretion, may award exemplаry damages.”
. Without in any way detracting from the reasonableness of the impression gathered by the plaintiff from his evaluation of the article as a whole, we note that its aúthor, William Brashler, also expressed the opinion that “some of the ‘haves’ in the new black middle class are keeping up the fight, trying to find jobs for black kids, kеep them out of trouble, deal with drugs, teach some skills, make black life for poor blacks bearable, offset the lure of the hustle. Every city in the country has its private and public agencies * ** * full of sharp, dedicated, mostly middle-class black staffers and volunteers”.
. (1 Street, Foundations of Legal Liability, p 319; Prosser, Privacy, 48 Cal L Rev 383, 398, 400; Wigmоre, Right Against False Attribution of Belief or Utterance, 4 Ky LJ [No. 8] 3; Wade, Defamation and The Right of Privacy, 15 Vand L Rev 1093,1094,1120; McKenna, False Light: Invasion of Privacy, 15 Tulsa LJ 113, 114.)
Concurrence Opinion
(concurring). We concur in result in this case but cannot accept what appears to us to be the overbreadth of Judge Fuchsberg’s opinion, addressing as it does plaintiff’s false light formulation which is not necessary for the resolution of this appeal.
Chief Judge Cooke and Judge Meyer concur with Judge Fuchsberg; Judges Jasen, Gabrielli and Jones concur in result in a concurring memorandum; Judge Wachtler taking no part.
Order modified, with costs to plaintiff against defendants Contact Press Images, Inc., Pledge and Gorgoni, in accordance with the opinion herein and, as so modified, affirmed, with costs to defendant The New York Times Company against plaintiff.