79 A.D.2d 917 | N.Y. App. Div. | 1981
Dissenting Opinion
dissent in part in a memorandum by Kupferman, J.P., as follows: The plaintiffs-appellants, husband and wife, submitted photographs of themselves for an advertisement for a diamond company. The defendant Cochran, a professional photographer, turned the photographs over to an advertising agency which utilized the photographs in connection with advertising material for a book published by defendant. The book was entitled “Crazy Love”. In the advertisement, the plaintiffs’ photograph was set in a frame with shattered glass with a description of the book in a pamphlet describing book selections for the members of a book club. The advertisement talked about a young girl who married with high hopes and girlhood dreams a man who was going mad and had bizarre fantasies. It was clear that the plaintiffs’ photograph accompanied the text, and the heading over the title “Crazy Love” had the statement “An Autobiographical Account
Lead Opinion
Order, Supreme Court, New York County, entered July 16, 1979, granting the motions of defendants Literary Guild and Doubleday to dismiss plaintiffs’ third and fourth causes of action for libel, affirmed, with costs. A photograph of plaintiffs was used by defendants, allegedly without authorization, to illustrate an advertisement for a book entitled “Crazy Love”, published in the Literary Guild’s Summer 1977 “Selections for Summer” brochure. The text was libelous in that it described the book as the story of a marriage in which the husband goes mad and as “an autobiographical account of marriage and madness.” Plaintiffs claim that the accompanying photograph, shown in a frame with shattered glass, clearly implies that they are referred to by the text and thus creates an actionable libel. In order for plaintiffs to be entitled to maintain an action for a defamatory statement, it must appear that they are the persons concerning whom it was made. It must be shown that the publication was “of and concerning” them. It is not necessary that they be named in the publication, if the allusion is apparent. “Where the person defamed is not named in a defamatory publication, it is necessary, if it is to be held actionable as to him, that the language used be such that persons reading it will, in the light of the surrounding circumstances, be able to understand that it refers to the person complaining.” (34 NY Jur, Libel and Slander, §55.) Plaintiffs have been unable to sustain this burden. The article accompanying the photograph in no way implies it is about the plaintiffs, but prominently displays the author’s name and clearly states that the book is an autobiographical account of her marriage. The author’s name and picture appear on page two of the brochure, accompanying the report of an interview concerning the book, so that it would be unwarranted for the reader to conclude that the article is about the plaintiffs’ marriage. Since plaintiffs have not established that the article is “of and concerning” them, they have failed to state a cause of action for libel. Concur — Ross, Bloom and Carro, JJ.
