Jackie Collins Lerman v. Flynt Distributing Co., Inc.

plaintiff, appeared in the enclosed ad- Before VAN GRAAFEILAND and CAR copy vance of Adelina magazine. Plaintiff DAMONE, Judges, BONSAL, Circuit discovered that the 1980 issue of Ade- Judge.* District lina misidentified as an actress appeared who in Ms. Lerman’s and her AMONE, Judge: CARD Circuit husband Oscar Lerman’s movie entitled preserves expression Freedom of all oth- “The World is Full Married Men.” Two inseparably er liberties so that freedom of black photographs anony- and white press society prosper and a free either printed mous actress from the movie film together Yet, perish together. because appeared pages magazine. 120-21 of the power, its enormous the contemporary appears topless misidentified actress press heavy attack under because of a pictures one of the and in “orgy” an scene widely that it perception spe- held uses its caption the other. The identifies the cial First Amendment status as a license to photos being Ms. Lerman and labels her privacy. invade individual This case illus- appeared as the “starlet” who orgy in an complexity trates concerns when scene in the film. these interests clash. magazine proclaimed cover of the Defendant, mag- a national distributor of its readers: “In the Nude from the Play- azines which offensive material concern- men archives Jackie ... Collins.” The plaintiff ing appeared, appeals from a judg- short accompanying article the actress’ in In ment favor. her action photo with Ms. Lerman’s name comments libel, of action plaintiff asserted causes for on increasing willingness the of “serious” statutory right of a of privacy, violation appear actresses to nude in films. While appropriation right and of the common law Ms. Lerman authored the book and wrote publicity. every In invasion of privacy to screenplay the “Married for Men” her and there is a be run in suit course to order for movie, husband directed the she did not plaintiff goal recovery. to reach movie, appear otherwise, in the clothed or case, plaintiff’s this libel action was dis- and appeared public. has never nude in right publicity missed and her to claim fails fit within rights to that tort. The civil Immediately upon receipt pack- of this cause does not lie one for advertising as age, lawyer Ms. Lerman retained a and purposes, as that term is defined under three weeks later —on March 1980— law; state but it does state a cause of commenced an action United States action for defendant’s invasion for trade District Court for the Southern District purposes right privacy. to Having J.) (Werker, against publish- far, successfully progressed plaintiff that er, (“Chuck- Chuckleberry Publishing, Inc. need to a level would demonstrate of de- leberry”), against original national privacy fendant’s fault on that claim suffi- distributor, Distributing Compa- Publishers satisfy protection cient constitutional (“PDC” ny, Inc. or “Publishers Distribut- Here, press. freedom of the on the final ing”) upon May publication based lap, plaintiff’s proof falls short. and distribution of Adelina. Plaintiff I Background sought injunction damages an based (a) (b) February plaintiff On libel defendant’s violation of New Jackie §§ (c) package Rights a York’s Civil Law Lerman reсeived at her 50-51 and Collins London, England. accompany- right in An invasion of her public- home common law ing agent ity. publicity letter from a who had

* Bonsai, York, Dudley sitting by designation. United Honorable B. States Dis- New Judge trict Court the Southern District of $100,000. Distributing for with judge issued a Publishers the district On March 31 Chapter bankruptcy restraining Chuckleberry is the dis- injunction preliminary reorganization. extent of While the of Adelina. tribution compliance original defendants’ original defend- In June with both disputed, it is clear that injunction is case, proceeded ants out of the Distributing all informed of its Publishers jury Flynt a Distribut- trial before wholesale cus- than nationwide more damages ing. sought Lerman under Ms. lawsuit and the Ms. Lerman’s tomers of privacy statutory claim and her New York requested that outstanding injunction, and right publicity arising law her common magazine re- copies of the all unsold publication. May 1980 Inasmuch from the Chuckleberry includ- nevertheless turned. already been determined liability issue sub- in its 1980 Adelina ed June grant by the trial court’s of sum- her favor page reprinted, in scription solicitation sought damages mary judgment, she also reprinted among other reduced size 1980 and Janu- the June distribution covers, page May 1980 cover Adelina ary of Adelina. After 1981 editions photo of contain a Jackie claimed to special jury returned a ver- short trial the Play men the Nude from Collins “In determining Flynt Dis- dict that defendant page The identical solicitation archives.” May tributing was liable for the 1980 issue January later appeared months six awarding Ms. Lerman total of $7 of Adelina. 1981 issue compensatory million in million $33 damages.1 shortly exemplary before the The trial court March On commenced, exemplary but after from the dam- original was struck million $30 lawsuit already award, leaving an age $7 was intact award issue of Adelina distribution, Flynt million exem- compensatory Distrib- million and $3 the channels of million (Flynt Distributing damages. It from this uting plary $10 Company Flynt FDC), appellant, purchased the Distribut- present judgment that defendant from Pub- appealed. contract to distribute Adelina has Distributing. Distributing Flynt lishers cross-appealed, has we not Since party joined as a defendant the district court need consider whether sought litigation April Plaintiff in plaintiff’s libel claim correctly dismissed Distributing against Flynt same relief the plead special to ground the that she failed January respect and to the June 1980 primarily damages. focus Discussion will as she had of Adelina 1981 distribution stat- of action—New York’s on two causes original sought defendants for against right of the of utory for violation action amended com- publication. In an law action for the common privacy and plaint plaintiff asserted these same causes right publicity. The to violation Distributing for the against Flynt of action governs law agree that New York parties May 1980 issue. diversity case. in this granted plaintiff’s mo- The court district Recovery Under II Grounds for against summary judgment tions State Law Publishing, Publishers Dis- Chuckleberry Leading to Enactment Background A. Distributing for tributing Flynt viola- and Privacy Right York’s Stat- New of of Rights York’s Civil Law tions New ute §§ for defendant’s invasion 50-51 and rein on me- The common law traditional li- publicity. Plaintiff’s right to plaintiff’s in 1890 the libel action. But dia abuse was was dis- against the defendants action bel an- and Louis Brandéis Samuel Warren February plaintiff settled missed. In Compensatory following Exemplary jury verdicts: The returned May 1980 thousand None $800

June 1.2 million million $1.0 Jan. 1981 5.0 million 32.0 million Verdicts Total million $33.0 million $7.0 recognition nounced their developing of a by sustained reason of such use and if right privacy. S. generally See Warren knowingly defendant shall have used Brandéis, and L. Right Privacy, name, person’s such portrait picture or (1890). Harv.L.Rev. 193 The article awas such manner jury ... its discretion response perceived direct by abuses may exemplary damages, award day: mass media of the § Rights Civ. 51 (McKinney Law press overstepping di- every Supp.1983). highest New York’s court has propriety rection obvious bounds of consistently reminded litigants that “there decency.... and of enterprise [M]odern exists no right so-called common law have, and through invention invasions privacy” in New York. Cohen v. Hall agón privacy, subjected him to [man’s] Cards, mark Inc 45 N .Y.2d 497 n. . pain distress, greater mental and far N.Y.S.2d N.E.2d 1145 by bodily than could inflicted mere see Arrington Co., v. The New York Times WWLY 55 N.Y.2d 449 N.Y.S.2d Id. at 196. N.E.2d 1319 Following article, the Warren-Brandeis , , , , ,1 „ ,, . Right Privacy B. New York s j Statute a recognize courts were asked to this new granting summary judgment plain tort. The of Appeals New York Court original defеndants, tiff Pub rejected the invitation in Roberson Roch- Distributing lishers Chuckleberry, and un Co., Folding ester Box N.Y. 50-51,2 der sections the district court stat (1902), picture N.E. 442 where the anof ed: “To make out claim under section woman, young attractive used without her (1) must establish that the de permission, 25,000post- adorned more than plaintiff’s name, fendant used portrait or ers advertising the defendant’s flour. Her picture state, (2) purposes within the suit privacy invasion of her trade, (3) advertising or without first by highest dismissed New York’s court. In obtaining plaintiff's written consent.” 496 public outcry 1903 the seemingly over this 1105, 1107-08. The trial court con unfair decision resulted in the enactment tinued, “The fact that Publishers by Legislature the New York State [PDC] of sec- not have known Rights Law, tions 51 of the Civil being name was used without her consent “Right Privacy.” entitled Section 50 the manner provides which was used is penalties criminal for the use of a person’s name, questions irrelevant picture compensatory or likeness for ad- damages injunctive vertising (the relief.” Id. at purposes trade two § did then brought eases ever 1109. The court decide the under 50 were dis- trial), public figure question, concluding gives missed before that ac required plain tual malice was not even if right individual victim such use the injunction public figure obtain an and a of tiff were a the use cause action where was rather, compensatory to exemplary “completely obtain and not informational but damages: exploitive, commercial.” Id. 1110. [and] The district held no court “there is such name,

Any person portrait pic- whose or newsworthy informational or dimension to ture is used for within this state advertís- Chuckleberry’s plain unauthorized of use ing purposes purposes for of or the trade name,” tiff’s and use that “the of her name may written without consent ... [his] commercially exploitive for equitable was effect maintain an action the su- preme purpose informing rather than for the of court of this state the public person, corporation newsworthy the about a using firm or so his event.” Id. name, portrait picture, or prevent shortly, to 1107-08. As we shall discuss thereof; respects the these were in restrain use also statements some damages any respects injuries sue and for inaccurate and in recover other erroneous provisions incorporat- only § 2. Because the 50 are ed in will made to § § of reference 51. 130 companying story,

as matter The court news which mentions of law. district opinion equally plaintiff’s in error in its 1982 name several times and relates June granted summary judgment when it re- how the fire started when plaintiff against Flynt Distributing. merchandise); Selsman v. 544 turned some Inc., Books, F.Supp. 966. Universal Photo 18 A.D.2d (1st 1963) Dep’t 238 N.Y.S.2d 686 privacy its York On face New statute (camera plaintiff’s manual where use of provide only seems to of action a cause for picture advertising name and held to be for defined Ro- appropriation,” “commercial beyond purposes because it went education- act, berson as the defendant’s “for his own expounded al purpose and of virtues purpose picture selfish or the use camera). advertising To be a for use advertising purposes name of another for purposes, appear “the use in or must as Roberson, supra, his consent.” without part of an advertisement or solicitation for 171 N.Y. at 64 N.E. Commenta- patronage.” Ginsberg Group v. News recog- and the American Law Institute tors Publications, Med.L.Rep. 2014, 9 2016 appropriation” nize “commercial 1983); see also Eliah (Sup.Ct. Cty. Nassau privacy four of invasion of one of kinds Corp., v. F.Supp. 309, Ucatan 433 312 publicly distinguish it from the torts of (W.D.N.Y.1977) (use picture of to advertise light, person in a placing a false intrusion products); Negri Sobering Corp., v. suntan upon personal public one’s solitude and (S.D.N.Y.1971) (photo of See, e.g., private facts. disclosure of W. Negri Pola used to advertise antihistamene Prosser, Privacy, Cal.L.Rev. tablets); Reilly Rapperswill Corp., v. (1960); (Second) of Restatement Torts (1st Dep’t § A.D.2d 377 N.Y.S.2d 488 (1976). The two 652A last invasions —in- 1975) (plaintiff’s film used advertise in- upon personal solitude and trusion sulation). Appeals The New York Court of private disclosure facts —are compensatory has held that to be liable for any appeal. claim on this name, por- of a damages person’s use appropriation first two torts —commercial picture advertising an light trait or based on implicated. and false —are claim, purpose defendant need not have Analysis commence must New plaintiff’s use was known its without York statute and substantial case law it Christmas, consent. Welch Mr. See, Saveli, Right Pri- spawned. L. has 149, 454 N.Y.2d N.Y.S.2d Name, vacy Appropriation a Person’s — accord, Cohen v. Her- N.E.2d 1317 or Advertising Portrait Picture Concepts, bal A.D.2d Purposes Trade Without Prior Written 1984). (1st Dep’t N.Y.S.2d History Scope Consent: in New York, Albany L.Rev. merely When the advertisement is “advertising purposes” terms and “trade privileged use there is incidental no purposes” prongs constitute two §of 51. See Sidis F-R Pub violation meaning, by statute their as construed Corp., (2d Cir.), lishing courts, analysis York New crucial an cert, denied, plaintiff’s claims in this case. (1940) (biographical sketch L.Ed. Purposes Advertising Under originally maga prodigy published in child zine and later used to advertise the

Where the name sketch use soliciting pur newspaper unobjectionable). in a solely purpose Plaintiff argue products for the use of her chasers defendant’s adver cannot name photo tising purposes prong (accompanied by of the statute is a of an unclad vio wom Adelina, See, Co., an) e.g., Flores v. Mosler May in the 1980 of lated. issue Safe 284, 975, 276, purposes. advertising 7 196 N.Y.S.2d 164 for She did N.Y.2d (1959) (defendant patron “use company N.E.2d 853 safe a for the solicitation of show reprinted advertising age particular product.” in a a an circular new for service or Tribune, Pagan building v. New York Herald sphoto burning a of ac- 32

131 341, 343, (1st worthy event, A.D.2d 301 N.Y.S.2d 120 of use his name or like- 1969), 941, affd, 26 N.Y.2d Dep’t 310 ‍​​​‌​​​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​‌​‌​​​​‌‌​​‌‌‌‌​‍N.Y. ness is not purposes of trade within the 327, (1970). § 258 N.E.2d 727 S.2d June meaning Id. 359-61, of 107 January 1980 and 1981 uses could be Yet, N.E.2d 485. there are limits to the advertising purposes viewed as for since privilege: who public fig- “While one is a they solicited orders back issues of ure or is presently newsworthy may be But, Adelina. republications proper subject of news or pre- informative January subscription 1980 and 1981 June sentation, the privilege does not extend to solicitations were incidental to the of personality commercialization his publication. 1980 Because solicitations through a form treatment of distinct from designed convеy simply were the nature the dissemination of news or information.” Adelina issues, past they and content of 359, Id. 107 N.E.2d 485. Since “news- independent cannot form the for an basis “public worthiness” and interest” are to be advertising claim prong under the use of “freely defined,” Arrington v. The N.Y. § 51. Publishing Corp., See Sidis v. F-R Co., supra, Times N.Y.2d at supra, 810; Sports Namath v. 113 F.2d at N.Y.S.2d 434 N.E.2d the use of Illustrated, 487, 488, 48 A.D.2d 371 N.Y. plaintiff’s name in connection with the mov- (1st 1975), affd, Dep’t S.2d 39 N.Y.2d ie “The World is Full Married Men” ais 386 N.Y.S.2d 352 N.E.2d 584 public matter in which the plainly a has Co., Publishing Booth v. Curtis 15 legitimate interest. 343, 350, (1st A.D.2d 223 N.Y.S.2d 737 may Plaintiff still be entitled to affd, Dep’t) curiam), (per 11 N.Y.2d § obtain the sanctions of 51 under (1962). N.E.2d N.Y.S.2d purposes prong trade Accord, even where Co., the use is A.S. Lawrence v. Abell conjunction report with a a matter Md. 475 A.2d 448 public interest, in order to but do so must Purposes Trade Under First, meet one of tests. two may attempt to demonstrate that the use Next, we examine whether plaintiff’s name likeness has no real “purposes uses name were for discussion, relationship to the thus trade” under the statute. Because the disguise. See, an advertisement Mayers in reporting routinely media nеws uses Michals, Med.L.Rep. v. (N.Y.Cty. consent, names likenesses without Sup.Ct.1983) (use photo in connection early recognized New York courts the need victims); Martin v. rape with article on encourage exchange the free of ideas Co., Johnson Publ. 157 N.Y.S.2d (Sup. privilege and created a legiti broad Ct.1956) (photographs unknowing wom public mate dissemination of news article); en used to Metzger v. illustrate See, e.g., and information. Humiston v. Co., Dell Publ. 267 N.E.2d 56 Misc. Co., Mfg. Film Universal App.Div. 182, 186, 136 (N.Y.Cty.Sup.Ct. N.Y.S.2d (1st Dep’t 1919); 178 N.Y.S. 752 Col 1955) (use bystanders’ photo in article Co., yer v. Fox Publ. App.Div. 297, describing gangs magazine); in detective 299-300, (2d Dep’t 1914). 146 N.Y.S. 999 Murray Magazine Co., v. New York purposes prong The trade of the statute cf. 406, 409-10, N.Y.2d 318 N.Y.S.2d prevent not be used to comment on (1971) N.E.2d (plaintiff who attended right public matters which the has Day green St. Patrick’s Parade in Pro-Football, hat and Gautier informed. Inc., purposes bow tie has no trade (1952), 107 N.E.2d 485 claim N.Y. picture use of his dismissed an defendant’s Appeals the Court of animal magazine story in a entitled “The Last of objection to a televised broadcast trainer’s CBS, the Irish Immigrants”); Delan performed his act at half-time of a Washington professional 91 A.D.2d Redskins’ N.Y.S.2d 608 football (2d (mental Dep’t 1983) patient is a game. perso Where has no trade purposes nage participant or an actual in a claim news- when shown news docu- alterna on the Lahiri v. Plaintiff’s reliance mentary hospitals); mental Mirror, 776, 782-83, newsworthy defeating the Daily 162 Misc. tive basis (profes is, (N.Y.Cty.Sup.Ct.1937) ground, N.Y.S. rests on firmer privilege in photo plaintiff story used ex sional ground. falsification the fictionalization or Rope gen use for posing Trick” is “Indian See, Corp., App. e.g., v. Hearst Sutton interest, purposes). not public eral for trade (1950) (while Div. 98 N.Y.S.2d claim that Alternatively, a perfect rose a bequeathed one woman was privilege report the defendant forfeited admirer, complaint stated by secret week public the has the matters on which story so embel cause of action because by the right proving informed also fictionalized). See lished to be as material use was infected with defendant’s Messner, Inc., supra, Spahn v. Julian see falsity, Gold fiction or and substantial Co., Vitagraph Binns v. N.Y. Corp., 210 N.Y. berg Publishing v. Idеal (1913) (war hero fictional N.E. (lurid (Sup.Ct.N.Y.Cty.1960) S.2d Spahn ized). The court stated that the maga life in romance account of rabbi's severe, degree falsity must be and found infected, zine). Even so for defend when great the it that case because former newsworthy privilege plain lose ant to the League pitcher’s sig life had been National prove acted tiff must that defendant misrepresented nificantly by defendant. degree the fiction regarding of fault some N,Y.2d 286 N.Y.S.2d Spahn v. Julian alization or falsification. N.E.2d Messner, Inc., 286 N.Y.S.2d N.Y.2d (1967), appeal dis 233 N.E.2d High Society Davis case of recent missed, Magazine, 90 A.D.2d 457 N.Y. (1969). L.Ed.2d 600 dismissed, appeal (2d 1982), Dep’t S.2d 308 (1983) accept plaintiff’s strikingly cannot first 58 N.Y.2d 1115 similar We boxer, argument photo in this case has Plaintiff, a female dis- to this one. any relationship” “no real discussion publisher covered that defendant Adelina. Ms. Lerman the book and wrote pictured top- her a boxer misidentified screenplay nudity that contained scenes magazine. trial less in defendant’s for the film “The World is Full of Married judg- granted summary court Adelina Men.” While the article § regard to ment motion under 51 without vapid growing did relate use knowledge of the defendant’s the factual nudity in the use of films. Insofar as Appellate plain- error. The Division found name “Jackie Collins” concerned public figure tiff and reversed to be 1980 use must be considered incidental to ruling. lower The court stated that court’s story, objectionable not and hence as a figure seeking public “a official or “disguised advertisement” under against a media under recover defendant University Dame Du Lac v. See Notre Rights falsi- Law because some Civil Fox, Century Twentieth 22 A.D.2d prove that the fication must defendant was affd, (1st Dep't), 256 N.Y.S.2d recklessly dis- aware of the falsification 940, 259 N.Y.S.2d 207 N.E.2d N.Y.2d regarded truth.” 90 A.D.2d Further, plaintiff’s status as Davis sets forth We N.Y.S.2d 308. believe film author screenwriter of a an analysis mis- type the correct genre of “no makes claim con erotic attempts Ms. identification. Lerman to dis- particular photographs nection” with these Davis because there the tinguish Certainly has as unpersuasive. she much boxer, while Lerman was a Ms. has never article or more connection with this than But the еlement been a “starlet.” critical plaintiffs Murray, Delan did the Davis as in this case is the misidentifica- Lahiri, Thus, supra. Ms. Lerman was tion, i.e., present- the factual error. When any bystander innocent without relation an brings ed with a factual which an to matter of the article and error ship newsworthy privileged use with- photograph. otherwise

133 Co., Co. v. purpose prohibition, Emerson Electric in the 554 276, trade Su- preme (6th Cir.1977); and the York Ottley, Skeoch v. Court New Court of 289 377 required Appeals 804, (3d that there be a Cir.1967); have find- F.2d Restatement Time, §§ generally See Inc. v. (Second) of fault. of Torts comment Hill, 87 S.Ct. L.Ed.2d requirement d. While a similar exist (1967); Spahn Messner, v. Julian su- Wade, privacy, the law of J. Defamation pra. Right Privacy, and the 15 Vand.L.Rev. (1962), there is little contempo- agree plaintiff’s that name in We all rary defining ease law Adelina three issues are fictionalized required compen- contours of the “use” for privilege false and therefore lose the that § satory damages under But 51. the New ordinarily reporting extends to matters York Appeals Court of has ruled a com- Further, which the has an interest. appropriation mercial case that defendant’s degree falsity here was severe since knowledge lack plaintiff that had not plaintiff pictured. not the actress was consented was no compensato- defense to a Were it not constitutional concerns this § ry damage claim under 51. Welch v. Mr. falsity permit properly would instructed Christmas, supra, 57 N.Y.2d 454 N.Y. jury to the uses here to be for find trade 1317; accord, S.2d Thomp- § 440 N.E.2d purposes under 51 of the New York Civil Close-up, son v. App.Div. But, Rights precisely because law. (1st Dep’t 1950) (per N.Y.S.2d 300 curiam) guarantees Flynt First Amendment Dis- (use by allegedly mistake). innocent tributing cannot be held liable the use name acted unless it with the We need guess not hazard to how fault, requisite point and it is on last New York Courts apply would these au plaintiff’s proof fails as we will later thorities to Ms. Rather, Lerman’s claim. explain. we assume that Welch v. Mr. Christmas § Liability Distributor’s Under correctly that, states the rule and as a law, matter plaintiff of New York met the dismissing plaintiff's When libel claim in requirement “use” merely by showing August opinion, its the district court Flynt Distributing purchased the ruled that “the contract long New York courts have profits entitling it to May held from the that vendors and distributors of de- issue by participating famatory publications if distribu they are liable tion January neither of the know nor have to know June issues of reason Adelina. F.Supp. the defamation.” at Thus, granted summary judgment Right Claim a to Public- C. Distributing issue Publishers on that as to Plaintiffs ity article, May ques- but found “that clearly presented tions of fact are In her complaint, also included a respect special whether circumstances upon cause of action based her common requiring existed PDC to review the con- right law publicity which the district published tent of the issues of Adelina granted court her summary judgment. It after the Without issue.” discus- unnecessary precise to determine the sion, judge ap- the district then refused to right outlines of that under New York law ply this same limitation on distributor lia- Here, implicated. because it is not § bility purposes. right publicity is essentially identical to Flynt Distributing argues right to be free from appro commercial priation. See, e.g., v. Scripps- prove failеd to that it “used” her name or Zacchini § Co., picture Broadcasting Howard argument quite under 51. This 571-72, argument like a defendant’s common 53 L.Ed.2d 965 See, “publish” did not see Winterland Concessions v.Co. law that he libel. Sileo, Prosser, e.g., (N.D.Ill.1981). W. Law Torts 1971). (4th Equipment See Industrial light proof, ed. a claim for commer- appropriation right publicity appropriated. Plaintiff did cial or violation of the publicity “[Mjuch prima to does not lie. confu- not establish a facie cause of action ‘right publici- sion shrouds the so-called to right publicity. of her for violation to She ” Etc., Arts, Inc., Factors Inc. v. Pro ty.’ exploited the value of her has never nude cert, de- 215, (2d Cir.1978), 220 579 F.2d appearance obviously and cannot claim to nied, 908, 1215, developed property interest have a Factors, (1979). L.Ed.2d 455 In we ex- alleged infringement. matter of this pressly equated “separate tort” with Moreover, proof right that this is not a to privacy appropria- Dean Prosser’s tort of publicity plaintiff’s case is in demand for Id. tion of name or at 220-22. likeness. sought publication enjoin relief —she to and ‍​​​‌​​​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​‌​‌​​​​‌‌​​‌‌‌‌​‍Accord, Johnny Carson v. Here’s Portable feelings to of salve her wounded —neither Toilets, (6th 698 F.2d Cir. injuries which are the kinds of 1983). right relatively recent It is a publicity designed remedy. tort is to There origin having applied by us in been first simply any no evidence that defendant Topps Chewing Haelan Laboratories v. deliberately exploited plaintiff’s fame and cert, Gum, Inc., (2d Cir.), fortune. Inasmuch as the facts fail to es- denied, 98 L.Ed. U.S. S.Ct. plaintiff’s right tablish a violation of to right designed to The is one publicity law, as a matter of her cause of encourage intellectual and creative works theory action on that should have been prevent unjust enrichment. and dismissed. publicity

In a case the occurs; not so concerned that the use he D. Light False Distinguishable Tort simply wants to be the one to decide when Right Publicity from where, paid and to be for it. The conclusion, Despite this we under right essence of the is the sub a analysis light take brief of the false tort property stantial interest in his “entire understanding because it is essential to an act,” Zacchini, supra, 433 U.S. at application of the First Amеndment likeness, Grant v. Es S.Ct. at his §to specifically alleged 51. While not quire, (S.D.N.Y.1973), F.Supp. complaint, Ms. Lerman’s action Day Marx v. “style,” Groucho or even his presents claim, light false classic which is Co., Night (2d Cir.1982). 689 F.2d 317 distinguishable right publicity from her The upon action is defendant’s at based Time, Hill, Inc. v. cause of action. tempt publish “to broadcast or S.Ct. L.Ed.2d 456 performer normally gets paid.” which the (1967), Supreme Court observed that Samuelson, Reviving Analyz Zacchini: P. New York Courts have construed the lan Right First Amendment Defenses § guage broadly enough to encom Cases, Publicity Copyright 57 Tu claims. Id. pass light 381, 384-85, false (1983) lane (citing L.Rev. 868 n. 120 Time, Hill, Inc. v. 87 S.Ct. at 540. In Esquire, supra). v. Grant magazine printed story stating Life Hours, Desparate general Because the play, must that the was a ly developed property have family’s interest with reenactment of the Hill highly prove financial publicized value order to that he group escaped ordeal with a damages, right suffered incident, is most fre convicts. While based on the quently by public figures invoked play or celeb had fictionalized the event. New York Russen, § Presley Estate v. rities. granted recovery 513 courts Hill under (D.N.J.1981); Hicks v. F.Supp. 1339 Casa based false statement Life’s Records, blanca (S.D. play was a factual reenactment of the or N.Y.1978). Thus, Supreme Ms. Lerman’s insistence deal. The Court holding reversed private person insofar as these that she is a that claims under New York’s statute Adelina articles are concerned does not report based on a fictitious or falsified square right with her claim that her to which privileged would otherwise be are actionable, proof knowledge (taking publishing plaintiff’s picture absent falsity disregard knowledge or reckless of the truth. without his consent in con- falsity that where is the Court stressed nection with an article on the “Black Mid- § claim, gravamen of a First Amend- “highly dle was not offensive Class” guarantees permit imposition liabil-

ment persons of ordinary sensibilities” under the is shown. Id. malice ity only where actual formulation). Hence, Restatement 652E 387-88, 87 at 541-42. As the Su- light if a under false claim the Restatement Time, Hill, Inc. preme Court said in recognized York, rubric is in New Ms. Ler- Scripps-How- Zacchini implied later man has stated a сlaim under it.3 Broadcasting, supra, 433 U.S. at ard case, light styled In a false however un- 2856, analyze essential to 97 S.Ct. is law, der a state or statute common the under to de- purposes” “trade claims 51 gravamen not, of falsity; the tort is whether First Amendment con- termine here, simply Further, a factual error. re- surrounding light false cerns this tort are gardless of whether Ms. Lerman’s cause of not, press If implicated. the is entitled of light action cast terms libel or false pro- the limited First to Amendment the purposes prong or under falsified trade tection afforded under Zacchini. § 51, protections the same constitutional light tort, examining In the false turn we Nizer, Meeropol See v. apply. 560 F.2d (2d) to section 652E of the Restatement (2d 1061, Cir.1977) 1066 (rejecting Rosen- provides: Torts that berg children’s claims that book about their gives publicity One who to matter con- parents por- had defamed them both cerning places another that the other be- cert, denied, trayed light), them a false public light in a false fore the 1013, 727, 434 98 U.S. S.Ct. 54 L.Ed.2d 756 liability to to the other invasion of his (1978). Accord, Flynt, Braun v. 726 if privacy, Brandt, 245, (5th Cir.1984); Rinsley v. (a) light falsе in which the the other was 1304, (10th Cir.1983); Berry 700 F.2d placed highly would to a offensive Co., Broadcasting v. National 480 F.2d person, reasonable cert, dismissed, (8th Cir.1973), (b) knowledge actor acted of or U.S. S.Ct. L.Ed.2d 1157 falsity disregard in reckless as to Co., Doubleday Dresbach v. & publicized light and the matter false (D.D.C.1981). F.Supp. There- placed. which the other would be fore, we must constitu- address federal question appropri- Assuming requisite tional to determine the proof fault, plaintiff the facts of case ate this state a cause of standard fault should have required action under section 652E. The nude ac been to meet and to evaluate pictured plaintiff’s proof tress was Ms. Lerman. under that constitutional or why Whether not this misidentification is de explain standard. what follows we Lerman, v. famatory short, to Ms. McGraw plaintiff’s proof defeating falls cf. Watkins, 958, 959, A.D.2d 373 N.Y.S.2d cause defendant. (3d 1975)(film Dep’t with nude scene of Ill Constitutional Issues necessarily “does not un impute Figure A. Public or Private chastity plaintiff”), to we cannot conclude begin, publicity erroneously To the district court “highly that such is not offensive public Arrington See v. person.” figure ques- ruled 1980 that the to a reasonable Times, supra, application only 55 N.Y.2d tion had to dis- Moreover, Flynt 434 N.E.2d 1319 libel claim. N.Y.S.2d missed when ” presented 3. The district court addressed June 1980 in the 1980 issue of 'Adelina.' Thus, January subscription implicitly solicitations and trial court they recognized gravamen plaintiff's found in its June decision "would that the com- appear squarely exception plaint publications grounded to fit within those was advertising light, appropriation incidental the news ex- medium false right not commercial cept properly fairly publicity. was not through proceeding court is not the kind Distributing attempted reopen ques- remaining voluntary assumption promi prior on the causes of action act or tion trial, public questions the district court refused to recon- nence in the resolution of Id. ruling. “public figure.” In our sider its earlier view as to render her a wrongly 454-55, later, judge years trial determined that Ms. 96 S.Ct. at 965. Four public figure not a under person Lerman was that a not a the Court ruled was Welch, Inc., v. Robert Gertz figure merely U.S. he because refusеd to (1974), its grand fully 41 L.Ed.2d 789 appear jury, realizing S.Ct. before progeny. might publicity, that his refusal attract be cause he was believed to have information To decide Ms. Lerman is a whether government relating of interest to the applica public figure, we first consider the Di espionage. Wolston Reader’s Soviet begins as it must ble rules. Discussion Assn., Inc., gest Sullivan, New York Times Co. 61 L.Ed.2d 450 Rather than 11 L.Ed.2d 686 thrusting himself to forefront of the (1964). There, the held that a state Court public controversy surrounding the extent damages “public to a offi cannot award States, espionage Soviet United defamatory cial” falsehood concern for a in Wolston petitioner dragged un conduct, proof that his official absent willingly controversy. Id. into the at published the statement was with “actual Again, becoming at 2706. S.Ct. 279-80, malice.” Id. at 84 S.Ct. at 725-26. recipient of Senator Proxmire’s Golden Butts, Publishing In Curtis Co. v. receipt Fleece Award as a result of the of U.S. 87 S.Ct. 18 L.Ed.2d 1094 projects federal not funds for research did (1967), proof the same standard of for re public figure. make a limited ‍​​​‌​​​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​‌​‌​​​​‌‌​​‌‌‌‌​‍covery under state was extended libel laws Proxmire, Hutchinson v. Id. рlaintiffs “public figures.” are who 61 L.Ed.2d 411 Al S.Ct. 162-63, (Warren, C.J., at 87 S.Ct. at 1995 Gertz, though, petitioner like the Hutch concurring). private aWhen individual professional jour inson a was writer compensation publication seeks of a nals, he did not thrust himself or his views falsehood, defamatory the states de others, public eye into the to influence nor appropriate fine for themselves the stan public regu did he invite attention or have fault, subject dard of to the constitutional access to the media. Id. continuing lar and Gertz v. Robert negligence. minimum of 135-36, question at at 99 S.Ct. Welch, Inc., supra, 418 U.S. at in each case is what is “the nature and S.Ct. at 3010. participation extent of an individual's in the rejecting argument that Elmer particular controversy giving rise to the Gertz, reputable lawyer, public a was a Welch, defamation.” Gertz v. Robert figure, the Court held that those indi- 3013; Wolston 418 U.S. at 94 S.Ct. at voluntarily inject viduals who themselves Assn., Inc., Digest v. Reader’s at U.S. particular public controversy into a are con- 167, 99 at S.Ct. purpose public figures, id. limited sidered 351-52, Emphasiz- holdings provide at S.Ct. 3012-13. These a frame to the Times ing that standard pur determine what constitutes a “limited hinge pose public figure.” does not on whether the statement A defendant must interest, (1) public successfully a matter of concerns show has: in Supreme Court held that a cause celebre vited public attention to his views in an involving prominent prior divorce in Florida a effort to influence others to the inci wealthy couple “public (2) subject litigation; was not a con- dent that is the Time, Firestone, Inc. troversy.” voluntarily injected public himself into a controversy 47 L.Ed.2d related to the (1975). Moreover, (3) litigation; position promi the fact that Mrs. assumed a sought public (4) marital redress nence in controversy; Firestone to obtain regular continuing writings maintained access order to call attention to her Having media. what to the ascertained her disseminate views on current sexual is, apply test it. basic we standards, helps to her sell novels and screenplays upon” like the one “commented The record us that before reveals Ms. in May 1980 Adelina. has renown Lerman achieved international the author of nine novels. Her books No doubt defendant has shown that decidedly in nature be- are controversial plaintiff successfully public invited atten- of her firm conviction —made the cause fo- tion to her views and has maintained con- point press— comments cal her tinuing Nonetheless, access to the media. pervasive inequality there is a agree we with the district court that Ms. treatment accorded females vis-a-vis person Lerman is not that rare the Gertz topic greatly appeals males. This to the decision all purpose public identifies as an public millions, since sell in the her books figure. noted, As the Court there “Absent sex, descriptions including are full general clear notoriety evidence fame or orgies, heavily sex and and are deviate community, pervasive involve- words. Ms. laden four-letter Lerman society, ment in the affairs of an individual quick point out some should personality deemed banned in novels have been Australia —a aspects for all of his life.” Gertz v. Robert being similar to distinction banned Bos- Welch,Inc., 351-52, 418 U.S. at ton. She has aсhieved world-wide follow- 3012-13. ing, frequently appears guest as a on na- readily grants TV and interviews tional But, we Ms. believe Lerman occasions, mass media. On such one purpose public figure limited required to example inequality of sexual that Ms. Ler- satisfy the New Times York standard man uses to the refers fact women By voluntarily fault. devoting herself tdl frequently appear more than men unclad public’s in interest sexual moresl and magazines. films This is unfair she through writing topicr extensive on this because opportunity claims men have more reaping profits notoriety and for her wide women vice view undressed than versa. process, in self Ms. Lerman must be “equal all.” She advocates nudes for purposefully have deemed to surrendered photograph prominently Lerman’s Ms. is part of what would otherwise been have displayed jackets on the of her novels that protectable privacy rights, her least good enjoy despite perhaps, reviews —or way those related some to her involve description because of—their as “shock- writing screenplays. ment in her books and ing,” “racy,” “sexy” and the like. She Co., 415, See James Gannett 40 N.Y.2d “porno- her are admits books considered 423, 871, 386 N.Y.S.2d 353 834 N.E.2d graphic.” Her novel first was translated (1976) (“The underlying essential element languages. into 32 Movies have been made category public figures of is that and, noted, picture of earlier several as publicized person has taken an affirmative nude actress that is the of attention”). step public to attract litigation this came from the film based on question The difficult is whether Ms. novel her “The World is Full of Married injected “public Lerman herself into a con- Quite plainly today Men.” Ms. Lerman is troversy” offending publica- related to the writing in the forefront of women about rejected tion. The district court defend- perceived what of a sex and is as continu- argument ants’ that Ms. Lerman was a double-standard sexual mores. public figure purpose limited of Thus, plaintiff, seeking publicity both commenting on nudity sex and in films. parcel part for herself and her books is and topic The court reasoned that such a professional as a endеavors writer. interest, merely a matter a but not true plainly The record reflects her undoubted public organized controversy. disagree. The re- Her and We success this effort. access, public nudity and ongoing effort to maintain media lations between the sexes 138 It no ob protection. contains general Amendment topics public

are continued States, Roth v. United may “public scenity, 354 U.S. considered con interest (1957), though involving polit 476, 1304, 1 troversies” even 77 L.Ed.2d 1498 S.Ct. Ferber, public or officials. New York v. ical debate criticism pornography, child topic any upon public “controversy” A 747, 3348, 102 S.Ct. 73 L.Ed.2d 458 U.S. society have segments sizeable which riot, (1982), inciting 1113 or matters different, Certainly strongly held views. Ohio, Brandenburg v. 395 U.S. vastly divergent today groups have various (1969). L.Ed.2d S.Ct. female male propriety views on factual in this case action error would be gen print media nudity in films and in if the distribution of Adelina able public erally. In the controversies that dai protection loses Amendment under a First pocketbook they politics, ly swirl about —be analogous standard that which causes here, issues, or, contemporary standards speech protection. lose libelous such plunge nudity into regarding —some Illinois, See Beauhamais Plaintiff, fray. as a enter the arena (1952). 725, 735, L.Ed. controversial, authoress outspoken accept publication a view We cannot that a advocating equal nudity, was screenwriter independent must an meet standard willing public participant such newsworthiness to stand under the umbrel similarly controversy. indi Other situated protection. Even la of' First Amendment pur to be have been held limited viduals “vulgar” publications are entitled to such Koch, Rose v. figures, public pose York, v. New guarantees. Winters (1967) (a 154 N.W.2d Minn. 665, 671, 92 L.Ed. U.S. Corp., v. NYM author); Maule well-known no It makes difference (1st A.D.2d 429 N.Y.S.2d 891 features, Adelina redeeming have may few Sports 1980) (writer Illustrated), Dep’t may express point far of view grounds, on other rev’d 54 N.Y.2d might afield from what one consider At N.E.2d 416 N.Y.S.2d community’s decency, or that standard Friedman, kins v. A.D.2d N.Y. ordinary an reader find it distasteful. 1975) (1st (physician Dep’t who S.2d the First cov compass of Amendment dieting). books on We conclude wrote tastes, views, ideas spectrum ers a vast therefore must be held to be expressions. Pring In v. Penthouse & purpose figure. Bruno limited ternational, Ltd., (10th Stillman, Co., Newspaper Inc. v. Globe cert, denied, — —, Cir.1982), Cir.1980); 583, Reliance (1st F.2d 633 592 Ac (1983). 3112, S.Ct. 77 L.Ed.2d 1367 Barron’s, Insurance Co. v. F.Supp. 442 cord, Co., Publishing v. Dell Jenkins 251 1341, (S.D.N.Y.1977). 1346 cert, denied, 447, (3d Cir.), 451 357 921, 1362, 2 1365 U.S. 78 S.Ct. L.Ed.2d First Amend- Newsworthiness for B. Inc., Confidential, (1958); Goelet v. 5 Purposes ment 226, 229, (1st A.D.2d 171 223 N.Y.S.2d adopted plain The district court 1958) Dep’t (magazine capitalizing inti argument actual tiff’s that an malice stan prominent mate details of lives of individu apply plain fault even dard of does not if als). tight a To hold otherwise would draw public figure tiff is because use was public noose the throat of discus around “completely exploitive” and outside the choking sion off media First Amendment category of matters inter broad rights. newsworthy. est and therefore not This Adelina article unquestionably erroneously led it to conclude the dis within defini- would have been the broad strictly could tributor be held liable newsworthy tion of a matter a matter of disseminating magazine tread or without public interest or concern Ms. Lerman ing on the First Amendment. On the con Ann Adelina falls far trary, crossing pictured. short of in fact the “starlet” been 401, Margret Society, High v. it to First the line would cause forfeit 498

139 High (S.D.N.Y.1980); 89, 542; Society, Geiger Davis v. v. Dell Publ. 87 S.Ct. at supra, Co., 383, 515, (1st Cir.1983); 90 A.D.2d at 457 N.Y.S.2d 308. 719 F.2d Bar gar That there was a factual error does not Playboy Enterprise, subject offending alter matter F.Supp. 1151, (N.D.Cal.1983). earlier, publication. As noted New York Obviously, the national distributor yield law must in this to First context periodicals of hundreds of has no duty to protect the Amendment concerns which me monitor every periodical each issue of errors, it liability dia from for such absent distributes. Such a rule would an im proof are, be, of fault. Courts and should permissible burden on the First attempt reluctant newsworthi Amend to define News, Inc., ment. At the same time a distributor ness. Gaeta v. New York as an 82, integral part of the N.Y.2d 477 N.Y.S.2d 465 N.E.2d movement of informa Supreme Gertz Court in tion from creator to the reader —the expressly against “committing warned distributor here was to receive 46% Gertz v. judges.” profit task to the conscience of from magazine the sale of the —can Welch,Inc., supra, Robert 418 U.S. at entirely not be liability. immune from Time, Inc., Regan S.Ct. at 3010. When a distributor requisite acts with the Cf. — U.S.—,—, 104 S.Ct. distributing scienter in materials defaming 3265-69, (1984) (nor 82 L.Ed.2d 487 should invading or privacy private figure by legislators the task be undertaken since liability. must be Lewis v. prohibit attempts repro a statute Time, Inc., (E.D.Cal. 83 F.R.D. obligations United ductions of States un 1979). Underwood, See Suarez v. newsworthy purposes less made for is held 445, 447, (Queens Misc.2d 426 N.Y.S.2d 208 Amendment). violative of First Rath Cty. Sup.Ct.1980), aff'd, 84 A.D.2d er, error factual actionable (2d Dep’t 1981). But, public N.Y.S.2d 438 if defendant distributor made with figure plaintiff may only compen recover the Gertz required fault. then is What satory damages where a distributor acts appropriate standard fault eases in malice,” with “actual plaintiff pub and no — volving distributors? figure private lic recov individual — punitive damages er unless the Actual Malice C. Proof of Times v. Sullivan standard is met. 1. Actual Malice Distributors have To acted with constitution guarantees long First Amendment have malice, al or actual the defendant must be recognized protecting been distributors high degree shown to have had “a California, publications. Smith v. probable awareness of [the statement’s] 147, 150, U.S. L.Ed.2d Louisianа, Garrison v. falsity,” 379 U.S. York, supra, (1959); Winters v. New 209, 215, 85 S.Ct. 13 L.Ed.2d 125 667; Lovell v. U.S. S.Ct. at (1964), or to have “in fact entertained seri 444, 452, City Griffin, 303 U.S. publica ous doubts as the truth his Ex Parte L.Ed. 949 tion,” Thompson, St. Amant v. Jackson, (6 Otto) L.Ed. 727, 731, 1325, 88 S.Ct. 20 L.Ed.2d (1877) (“Liberty circulating is as also v. See Gertz Robert liberty pub essential to that freedom as Welch, Inc., supra, 335-36, indeed, circulation, 418 U.S. at lishing; without the (“subjective S.Ct. at 3005 awareness publication value.”) would be of little probable falsity”). inquiry The essential is Whether a distributor is held liable for charge defamatory Flynt or for whether those false and matter false Distribut invading ‍​​​‌​​​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​‌​‌​​​​‌‌​​‌‌‌‌​‍privacy, imposition matter had serious doubts the accuracy about liability adequate of the identification of Ms. Lerman in Ade proof without of fault Newsweek, Pep lina. v. See unquestionably would chill exercise 553 F.Supp. (S.D.N.Y.1983); Printing See Pirre v. rights. First De distributors’ Amendment Time, Hill, supra, velopments, Inc. v. 385 U.S. 388- 1038- see findings, legitimate jury Vandenburg our views (S.D.N.Y.1979). See also Hill, (5th Time, supra, 385 U.S. at 394 n. Newsweek,Inc., Inc. v. 507 F.2d v. require us n. it does Cir.1975) (actual proposi- not a at 545 malice “is S.Ct. closely. ques by supported a normative to scrutinize the record that can be tion judge publisher should have the trial that tion to dеcide whether conclusion statement”). to falsity granted summary judgment of the of the have known should failed to the district court the lack of evidence Inasmuch as the defendant based on Flynt it must find jury that instruct malice. of actual mal- acted actual Distributing to have with to place, plaintiff In the first failed reversed. ice, must be jury’s verdicts impose duty proof sufficient even to offer Nevertheless, complete the record is since Distributing inquire Flynt defendant Distributing’s Flynt knowl- regard to with May and the district as to the 1980 issue conduct, are neces- edge both of which no specifically court found that there was punitive “knowing use” for sary prove “knowing” by defendant of use under § 51, examine the evi- damages under we Further, plaintiff’s name in that issue. a new trial is determine whether dence to proof any no that of defendant’s there was warranted. employees had reason believe (the Chuckleberry publisher) would misi in This Case 2. Actual Malice pictured. dentify Ms. Lerman as the actress granted the Although the trial court Because we have determined that judgment summary plaintiff’s motion figure required purpose public a limited jury on actual and did not instruct compensatory prove actual malice for malice, on notice of put it did Ms. Lerman damages, arising May from the claim “knowing prove a use” the need for her to 1980 issue must be dismissed. Thus, plaintiff itself. under the statute Similarly, respect to the June 1980 every in experienced counsel had January 1981 issues there is no evi- during discovery facts centive uncover showing Flynt dence in the record showing present at trial and to evidence Distributing recklessly disregard- knew or knowledge or Flynt Distributing’s reckless any contained ed whether these editions publisher’s report false disregard of the any factual plaintiff, mention of let alone concerning Lerman. Such evidence of Ms. noted, concerning “actual error her. As evidence “knowing use” is identical to the implied expression is a malice” as is Accordingly, actual malice. we “make subjective test focused on defendant’s state independent examination of the whole an Lando, Herbert v. See of mind. U.S. ‘in make sure that a record order to [ver 153, 160, 1635, 1640, 60 L.Ed.2d 99 S.Ct. finding actual would not consti dict malice] (1979). Flynt Distributing may be held field of tute a intrusion on the forbidden ” only plaintiff presented if clear and liable Corporation Bose v. expression.’ free — convincing high level evidence that some States, United Consumers Union of employee corporation acted with —, —, 1949, 1958, 104 S.Ct. U.S. disregard reckless of the fact that false (1984) (quoting L.Ed.2d 502 published by matter had been Chuckleber- Sullivan, supra). See Time v. Times pointing in ry. The evidence that di- Pape, Flynt rection is the conceded fact that Dis- Liberty (1971); Hunt v. Lob 28 L.Ed.2d 45 tributing knew of lawsuit Cir.1983); (11th by, 720 F.2d Chuckleberry and Publishers Dis- Castillo-Puche, 551 F.2d Hotchner cert, issue, plus tributing for the denied, (2d Cir.), by failure thereafter it to investi- Buckley v. claimed 54 L.Ed.2d 95 Cir.1976), gate. Plaintiff Littell, 539 F.2d (2d cites no other evidence cert, brief, denied, and careful examination of the U.S. (1977). record in this case reveals that constitu voluminous L.Ed.2d 777 While duty permit none. does not us to substitute tional any feelings anything

Absent are facts demonstrat lacerated are worth close anyone in ing that the defendant distribut proof to million. No was offered that $7 subjective ing company had a аwareness of sought professional help she or needed be- probable falsity. of the re Notice lawsuit publications cause these fact she standing cer garding issue alone completed Sep- a novel between March tainly convincing not clear and evidence is in tember 1980 refutes her contention that January, knowledge June and to any event, she was unable to work. In especially given the miniscule mention damages under the New York often statute Moreover, mere plaintiff those issues. they designed are nominal since are relevant, investigate, while failure primarily compensate injury to feel- actual also not itself sufficient to show Doyle, See ings. Lombardo Dane and Castillo-Puche, malice. See Hotchner Bernbach, Inc., 58 A.D.2d 913; supra, Post Washington 551 F.2d at (2d Dep’t 1977). Applying N.Y.S.2d Keogh, (D.C.Cir. Co. v. law California on facts analo- somewhat cert, denied, 1966), gous case, $25,000 to those in the instant L.Ed.2d Failure to in was found to be compensation “substantial vestigate especially is an weak criterion Clark v. Celeb. anguish.” for mental оf a of hundreds of case distributor Inc., (S.D.N.Y. Publ. publications. While distributors know 1981). See also v. Printing Develop- Pirre something publications of the contents of ment, (S.D.N. F.Supp. 1028, distribute, they contract there is Y.1979) (extremely plaintiff sensitive enti- ordinarily little for them reason to examine $45,000 tled to no more than for mental magazines In scores of distributed. anguish); Myers v. U.S. Camera Publ. sum, simply no there evidence—which Corp., Misc.2d 167 N.Y.S.2d 771 develop every incentive to (1957) ($1500 damages publishing total punitive damages any Flynt obtain —that body unauthorized photograph full nude Distributing employee was aware that the plaintiff). publisher’s errors would reoccur. Conse quently, we that a hold as a matter of law Finally, reputational we note that dam- jury fairly properly instructed could not age to Ms. Lerman could not been have rationally upon clear and con conclude Adelina, great. Only the readers of vincing evidence that this defendant’s uses relatively magazine of modest circulation knowing or were made actual malice. that Ms. Lerman as “sordid” and describes offending would seen the “obscеne” have Damage IV The Awards fact, given material. the number of jury plaintiff a awarded total of sev- persons fashion, portrayed famous in this en dam- compensatory million dollars one pictures wonders whether such are ages, which trial court refused to re- capable producing genuine even reputa- duce. No doubt such an enormous verdict assuming tional harm. Even the word rights. chills media First Amendment But get would around those whose esteem of of this size more than chill verdict does diminished, plaintiff would be the main rights, deep- an individual defendant’s pictures of publicity source for the came particular freezes media defendant publication, from the magazine’s but permanently. Putting aside First Amend- from Ms. Lerman’s lawsuit and statements “megaverdicts” implications ment fre- press. to the cases, imposed quently by juries in media jury also a total of $33 awarded compensatory damages awarded shock punitive damages, million more than are They the conscience of this Court. complaint demanded in her obviously grossly product excessivе and greater plaintiff’s over six times than appeals pas- coun- to the counsel’s requested prejudice jury. sel summation. sion and It cannot This seriously contended Ms. Lerman’s award also shocks conscience rein- our summary disposition’ since it rep- itself to that the verdicts lend forces our conclusion ” state of mind.’ passion prejudice. pertains or to ‘a defendant’s appeals resent Davis, (quoting 457 N.Y.S.2d 308 V CONCLUSION Proxmire, Hutchinson availability damages depends n. 61 L.Ed.2d n. plaintiff’s ability satisfy the actual mal- (1979)). ice standard of New York Times v. Sulli- agree majority I that While with plaintiff purpose pub- van that as a limited heavy to estab- plaintiff here has a burden figure lic required to meet. Since Ms. malice, I do not think that is lish actual present Lerman cannot clear and convinc- deny opportuni- her the sufficient reason to requisite evidence of defendant’s fault Therefore, I remand the ty to do so. would respect with to the factual error dissemi- give oppor- trial court to her an case to the nated, judgment awarding her ten mil- tunity discovery further and a trial on lion compensatory dollars in punitive actual malice—whether defend- the issue of damages is reversed as a matter of law and falsity knowledge acted with ant her complaint Flynt Distributing is disregard reckless of the truth. dismissed. BONSAL, concurring Judge, District

dissenting. majority’s

I in much of the excel- concur agree plaintiff opinion.

lent I purpose public

must be considered a limited

figure voluntarily injected herself who has on-going controversy through her

into an I DIAMOND, Plaintiff-Appellant, writings appearances. and media also John agree majority the case of with the Society Magazine, High Davis v. CORP., Jay AM-LAW PUBLISHING (2d Dept. A.D.2d 457 N.Y.S.2d 308 Abramson, Brill, Kriegel, Steven Jill 1982) “strikingly this one.” In similar to Kitty Kelley, Defendants-Appellees. Davis, here, granted the trial court sum- mary judgment for the without No. Docket 84-7136. considering whether the defendant had act- Appeals, United States Court of Appellate ed actual Divi- with malice. Second Circuit. that, purpose sion held as a limited figure, had to establish that Argued June the defendant had acted actual malice with Sept. Decided to recover under New York Civil order Finding Rights Law 51. insufficient evi- establish that the

dence the record to malice, had acted actual

defendant grant summary the trial

reversed court’s stating:

judgment,

[Tjhere is an element of cause dispute

of action which is which It is

cannot be resolved on this motion. upon plaintiff prove at trial

incumbent published defendants ‍​​​‌​​​‌​​​​​‌‌​‌​‌​​‌​‌​‌‌​‌‌​​‌​‌​​​​‌‌​​‌‌‌‌​‍is- with actual malice Celebrity

sue of Skin Davis, N.Y.S.2d 308.

.... noted that exist-

The court Davis “[t]he of actual malice ‘does not

ence or absence

Case Details

Case Name: Jackie Collins Lerman v. Flynt Distributing Co., Inc.

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 10, 1984

Citation: 745 F.2d 123

Docket Number: 724, Docket 83-7735

Court Abbreviation: 2d Cir.