Authors: Edward H. Rosenthal and Barry Werbin
If there be … no law now to cover the savage and horrible practices, practices incompatible with the claims of the community in which they are allowed to be committed with impunity to be called a civilized community, then the decent people will say that it is high time that there were such a law.
Thus opined the New York Times on August 23, 1902, commenting on the “savage and horrible practice”—then permitted by the New York Court of Appeals—of allowing Franklin Mills Company to get away with photographing and distributing lithographic prints of little Abigail Roberson as part of an ad campaign for Franklin Mills Flour, which described her as the “Flour of the Family.” Abigail’s mother was quite upset and sued on behalf of her minor daughter for damages and injunctive relief.
Characterizing the claim as of a type that had never crossed the desk of the Court but akin to seeking redress for violation of some privacy right without any libel element, the Court of Appeals concluded, in a close 4-3 decision, that New York’s common law did not recognize any such cause of action, despite allegations that the daughter had been “greatly humiliated by the scoffs and jeers of persons who have recognized her face and picture on this advertisement and her good name has been attacked, causing her great distress and suffering both in body and mind; that she was made sick and suffered a severe nervous shock, was confined to her bed and compelled to employ a physician….”
The New York Times editorial did not ring hollow and, faced with an outcry, the New York State legislature took prompt action by enacting a statute in 1903 that became the Civil Rights Law, codifying a right of privacy in two short sections. Succinct and limited in scope, § 50 of the Law, a criminal provision that has gone unchanged since 1903, provides:
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, which was amended and expanded after 1903, provides a private right of action to “[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without … written consent.” Remedies are provided for damages and injunctive relief (as they were in 1903). Exemplary damages may be sought only if a violation is willful and would otherwise be unlawful under § 50.
The right in question, often called a “Right of Publicity,” is generally recognized as one form of protection for the right of privacy—the right to be left alone—described in a 1890 law review article by Samuel Warren and future Supreme Court Justice Louis Brandeis. The article and its progeny identified four types of privacy protections, including the right to be free of intrusion into one’s private life, free from the public revelation of embarrassing private facts, protection from false light depictions, and protection from the misappropriation of a person’s name or likeness for commercial purposes. It is this fourth prong that is at the heart of the issue under discussion. The New York Court of Appeals has repeatedly stressed that, in New York, the sole remedy for a breach of privacy lies in the statute. In other words, there is no protection in New York for the other types of privacy rights, such as publication of embarrassing private facts or false light portrayals that are protected in many other jurisdictions.
New York’s statute does not grant any post-mortem enforcement rights, although use of a person’s identifiable persona attributes for commercial purposes even after death may constitute trademark infringement in appropriate cases. Over the decades, important First Amendment principles and restrictions have been read into the statute and applied by New York state and federal courts to news reporting, matters of public interest, art, music, film, theatre, parody, media, and evolving technology and online usages.
As will be shown in the case summaries below, the New York Court of Appeals has recognized statutory protection for commercial misappropriation of living person’s names and likenesses for more than 100 years. Yet it took 50 years for the first instance of the “right of publicity” nomenclature to be applied to the right of privacy under the Civil Rights Law, and it came with a 1953 Second Circuit decision involving chewing gum and baseball cards. The plaintiff made gum and contracted with a ballplayer for the exclusive use of his photo in connection with its sales of the gum. Topps Chewing Gum (Topps) induced the ballplayer to permit it to also use his photo, despite the exclusivity held by the plaintiff. Topps argued that the signed agreement was a mere release of liability because the ballplayer had no property interest in his photo outside of his statutory right of privacy, “i.e., a personal and non-assignable right not to have his feelings hurt by such a publication.” The Court refused to so limit the statute, noting that “in addition to and independent of that [statutory] right of privacy . . . a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture . . . . Whether it be labelled a ‘property’ right is immaterial; for here, as often elsewhere, the tag ‘property’ simply symbolizes the fact that courts enforce a claim which has pecuniary worth.”
