False Light and Appropriation

Privacy as Contextual Integrity

Nissenbaum, Helen F., Privacy as Contextual Integrity. 76 Wash. L. Rev. No. 1, (2004): Read linked article: http://crypto.stanford.edu/portia/papers/RevnissenbaumDTP31.pdf

Restatement 652E. Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

• (a) the false light in which the other was placed would be highly offensive to a reasonable person, and
• (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Time Inc. v. Hill,385 U.S. 374 (1966)

Syllabus

Appellee, Hill, and his family in 1952 were held hostage in their home by some escaped convicts and were ultimately released unharmed without any violence having occurred. They later moved away and appellee discouraged further publicity efforts about the incident, which had caused extensive involuntary notoriety. A novel about a hostage incident but depicting considerable violence later appeared, and was subsequently made into a play, these portrayals having been shaped by several incidents. Appellant's magazine, Life, published an account of the play, relating it to the Hill incident, describing the play as a re-enactment, and using as illustrations photographs of scenes staged in the former Hill home. Alleging that the Life article gave the knowingly false impression that the play depicted the Hill incident, appellee sued for damages under a New York statute providing a cause of action to a person whose name or picture is used by another without consent for purposes of trade or advertising. Appellant maintained that the article concerned a subject of general interest and was published in good faith. The trial court instructed the jury that liability under the statute depended upon a finding that the Life article was published, not to disseminate news, but as a fictionalized version of the Hill incident and for the purpose of advertising the play or increasing the magazine's circulation. The court also instructed the jury that punitive damages were justified if the jury found that the appellant falsely connected Hill with the play knowingly or through failure to make a reasonable investigation and that personal malice need not be found if there was reckless or wanton disregard of Hill's rights. The jury awarded $50,000 compensatory and $25,000 punitive damages. Though liability was sustained on appeal, the Appellate Division ordered a new trial as to damages, at which only compensatory damages were awarded, and the Court of Appeals affirmed. The New York courts have limited the reach of the statute as applied to reports of newsworthy persons or events, and have made it clear since reargument here that truth is a complete defense. (Spahn v. Julian Messner, Inc., 18 N. Y. 2d 324, 221 N. E. 2d 543 (1966)). However, the New York courts allow recovery under the statute when such reports are "fictitious.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question in this case is whether appellant, publisher of Life Magazine, was denied constitutional protections of speech and press by the application by the New York courts of §§ 50-51 of the New York Civil Rights Law [note 1] to award appellee damages on allegations [377] that Life falsely reported that a new play portrayed an experience suffered by appellee and his family.

The article appeared in Life in February 1955. It was entitled "True Crime Inspires Tense Play," with the subtitle, "The ordeal of a family trapped by convicts gives Broadway a new thriller, 'The Desperate Hours.'" The text of the article reads as follows:

"Three years ago Americans all over the country read about the desperate ordeal of the James Hill family, who were held prisoners in their home outside Philadelphia by three escaped convicts. Later they read about it in Joseph Hayes's novel, The Desperate Hours, inspired by the family's experience. Now they can see the story re-enacted in Hayes's Broadway play based on the book, and next year will see it in his movie, which has been filmed but is being held up until the play has a chance to pay off.

"The play, directed by Robert Montgomery and expertly acted, is a heart-stopping account of how a family rose to heroism in a crisis. LIFE photographed the play during its Philadelphia tryout, transported some of the actors to the actual house where the Hills were besieged. On the next page scenes from the play are re-enacted on the site of the crime."

The pictures on the ensuing two pages included an enactment of the son being "roughed up" by one of the convicts, entitled "brutish convict," a picture of the [378] daughter biting the hand of a convict to make him drop a gun, entitled "daring daughter," and one of the father throwing his gun through the door after a "brave try" to save his family is foiled.

The James Hill referred to in the article is the appellee. He and his wife and five children involuntarily became the subjects of a front-page news story after being held hostage by three escaped convicts in their suburban, Whitemarsh, Pennsylvania, home for 19 hours on September 11-12, 1952. The family was released unharmed. In an interview with newsmen after the convicts departed, appellee stressed that the convicts had treated the family courteously, had not molested them, and had not been at all violent. The convicts were thereafter apprehended in a widely publicized encounter with the police which resulted in the killing of two of the convicts. Shortly thereafter the family moved to Connecticut. The appellee discouraged all efforts to keep them in the public spotlight through magazine articles or appearances on television. ...

Restatement 652C. Appropriation of Name or Likeness

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Comments:

a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.

b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.

Finger v. Omni Publications Int'l, Ltd. 77 N.Y.2d 138 (N.Y. 1990)

ALEXANDER, J.

Plaintiffs Joseph and Ida Finger commenced this action on behalf of themselves and their six children against defendant Omni Publications International, Ltd. seeking damages for the publication, without their consent, of a photograph of plaintiffs in conjunction with an article in Omni magazine discussing a research project relating to caffeine-aided fertilization.

The salient facts are uncontroverted. The June 1988 issue of Omni magazine included in its "Continuum" segment an article entitled "Caffeine and Fast Sperm", in which it was indicated that based on research conducted at the University of Pennsylvania School of Medicine, in vitro fertilization rates may be enhanced by exposing sperm to high concentrations of caffeine.

A photograph of plaintiffs depicting two adults surrounded by six attractive and apparently healthy children accompanied the article. The caption beneath the photograph read "Want a big family? Maybe your sperm needs a cup of java in the morning. Tests reveal that caffeine-spritzed sperm swim faster, which may increase the chances for in vitro fertilization." Neither the article nor the caption mentioned plaintiffs' names or indicated in any fashion that the adult plaintiffs used caffeine or that the children were produced through in vitro fertilization.

Plaintiffs commenced this action alleging only violations of Civil Rights Law §§ 50 and 51. Defendant moved to dismiss the complaint, arguing that its use of the photograph in conjunction with the article did not violate Civil Rights Law §§ 50 and 51 because the picture was not used for trade or advertising but to illustrate a related news article on fertility. Defendant contended that because fertility is a topic of legitimate public interest, its use of the picture fit within the "newsworthiness exception" to the prohibitions of Civil Rights Law § 50. Supreme Court granted the motion on the authority of Arrington v New York Times (55 NY2d 433) and the Appellate Division affirmed. We granted leave to appeal and now affirm the Appellate Division. Plaintiffs contend that defendant violated Civil Rights Law §§ 50 and 511 by using their photograph without their consent "for advertising purposes or for purposes of trade."

[FOOTNOTE: Section 50, entitled "Right of privacy", states:

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 first having 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 states, in part:

Any person whose name * * * 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 * * * 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 * * * picture in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury * * * may award exemplary damages (emphasis supplied). ]

We have repeatedly observed that the prohibitions of Civil Rights Law §§ 50 and 51 are to be strictly limited to nonconsensual commercial appropriations of the name, portait or picture of a living person. These statutory provisions prohibit the use of pictures, names or portraits "for advertising purposes or for the purposes of trade" only, and nothing more (Arrington v New York Times Co., 55 NY2d 433, 435, supra; see also, Freihoffer v Hearst Corp., 65 NY2d 135; Stephano v News Group Publications, Inc., 64 NY2d 174)). The statute was a direct legislative response to our decision in Roberson v Rochester Folding Box Co. (171 NY 538) and "was drafted narrowly to encompass only the commercial use of an individual's name or likeness and no more" (Arrington v New York Times Co., 55 NY2d 433, 435, supra).

Although the statute does not define "purposes of trade" or "advertising," courts have consistently refused to construe these terms as encompassing publications concerning newsworthy events or matters of public interest (see, Stephano v News Group Publications Inc., 64 NY2d 174, 184, supra; Arrington v New York Times Co., 55 NY2d 433, 440, supra; see also, Gautier v Pro-Football, Inc. 304 NY 354; Humiston v Universal Film Mfg. Co., 189 AD 467; Lahiri v Daily Mirror, 162 Misc 776). Additionally, it is also well settled that "a picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise" (Murray v New York Mag. Co., 27 NY2d 406, 409, quoting Dallesandro v Holt & Co., 4 AD2d 470, 471, appeal dismissed 7 NY2d 735, see also, Stephano v News Group Publicatons Inc., 64 NY2d 174, 185, supra; Arrington v New York Times Co., 55 NY2d 433, 440, supra). Plaintiffs do not contest the existence of this "newsworthiness exception" and concede that the discussion of in vitro fertilization and the use of caffeine to enhance sperm velocity and motility are newsworthy topics. They contend, however, that their photograph bears "no real relationship" to the article, that none of plaintiffs' children were conceived by in vitro fertilization or any other artificial means, and that they never participated in the caffeine-enhanced reproductive research conducted at the University of Pennslyvania.

Consequently, according to plaintiffs, there was no "real relationship" between their photograph and the article, and any relationship that may exist is too tenuous to be considered a relationship at all. They argue that there are no "external and objective" criteria, such as were found to exist in Arrington (55 NY2d 433, 441, supra) that would indicate that plaintiffs have any real or legitimate connection with the subject of caffeine-enhanced in vitro fertilization, the subject of the accompanying article and that unlike the plaintiff in Murray v New York Mag. Co. (27 NY2d 406, 409, supra) these plaintiffs had not "voluntarily become a part of the spectacle" or "visually participated in any public event inviting special attention."

Plaintiffs misperceive the "newsworthy" theme of the article, which is fertility or increased fertility. Indeed, the article, in its opening sentences, observes that caffeine "can increase a man's fertility by boosting the performance of his sperm" and further indicates that "those who are looking for a fertility tonic shouldn't head for the nearest coffee pot" because the concentrations of caffeine used in the experiment "were so high (as to) be toxic." The theme of fertility is reasonably reflected both in the caption beneath the picture, "Want a big family?", and the images used -- six healthy and attractive children with their parents to whom each child bears a striking resemblance. Clearly then, there is a "real relationship" between the fertility theme of the article and the large family depicted in the photograph. That the article also discusses in vitro fertilization as being enhanced by "caffeine-spritzed sperm" does no more than discuss a specific aspect of fertilization and does not detract from the relationship between the photograph and the article.

As we have noted, the "newsworthiness exception" should be liberally applied (see, Arrington v New York Times Co., 55 NY2d 433, 440, supra; Stephano v News Group Publications Inc., 64 NY2d 174, 184, supra). The exception applies not only to reports of political happenings and social trends as in Arrington, and to news stories and articles of consumer interest such as developments in the fashion world as in Stephano (see also, Pagan v New York Herald Tribune, 32 AD2d 341, affd 26 NY2d 941) but to matters of scientific and biological interest such as enhanced fertility and in vitro fertilization as well. Moreover, questions of "newsworthiness" are better left to reasonable editorial judgment and discretion (see, Gaeta v New York News, 62 NY2d 340, 349); judicial intervention should occur only in those instances where there is "no real relationship" between a photograph and an article or where the article is an "advertisement in disguise" (Murray v New York Mag. Co., 27 NY2d 406, 409, supra).

We conclude here that it cannot be said, as a matter of law, that there is no "real relationship" between the content of the article and the photograph of plaintiffs. Thus the use of the photograph does not violate the prohibitions of Civil Rights Law §§ 50 and 51. Accordingly, the order of the Appellate Division should be affirmed, with costs.