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April 26, 1951

GARNER et al.

The opinion of the court was delivered by: KAUFMAN

The defendants in each of the above-entitled actions have moved for an order granting summary judgment in favor of the defendants and dismissing the second and fourth counts of the amended complaint in each action on the ground that there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law.

All of these actions have been consolidated for joint trial by stipulation between counsel, and the motions will be considered as a joint motion since they all involve the same questions and in fact have been presented through counsel for the defendant Triangle Publications, Inc. as their spokesman.

 The second and fourth counts of the amended complaints allege invasions of the plaintiffs' rights of privacy under Section 51 of the New York Civil Rights Law, McK. Consol. Laws, c. 6, and similar statutory provisions under Virginia and Utah law, and also under the common law or by statute in all other states where such rights of privacy exist. More specifically the plaintiffs allege that the defendants, in the September-December 1946 and September 1947 issues of their respective magazines, published stories and accompanying photographs of and about plaintiffs which portrayed plaintiffs as the principal participants in the murder of plaintiff Grace M. Smith's husband, Frank C. Smith, and charged that plaintiffs were guilty of improper relations with each other; that the stories contained false, scandalous, malicious and libelous matter about the plaintiffs, and were maliciously, wilfully, recklessly and wantonly published by the defendants with the intent and result of creating a false, distorted and fictionalized impression of the facts of plaintiffs' relationship with each other and the death of Frank C. Smith in the eyes of the public; that the stories are largely fictional, and composed of and embellished by pure invention, distortions of fact and circumstance, garbled mixtures of fact and invention, omissions or incomplete presentations of material, together with unfair, improper and insupportable comment, deductions and opinion, in order to provide a sensational flavor to the stores to increase reader attraction thereto and sales of the defendants' magazines; that all of the aforesaid acts of the defendants were done, and the pictures or likenesses of plaintiffs were published with said stories, without the consent of the plaintiffs and for purposes of trade in violation of the rights of privacy of the plaintiffs under the various state laws in which the defendants' magazines were sold.

 The defendants' answer, to the above allegations for purposes of this motion, is that the stories complained of were fair and true reports and comments of the official and judicial proceedings and were privileged; that the articles were published in good faith without malice; that the plaintiffs were, at the time of the publications complained of figures of public interest who had received wide public attention in the newspapers and elsewhere; that the names and pictures of the plaintiffs were used by the defendants in their publications in connection with items of current news and public interest so that the plaintiffs had no right of privacy with respect to the subject matter published in the defendants magazines. It is on these grounds, supported by affidavits, the published articles and copies of newspapers current at the time of the trial, that defendants move for summary judgment on the privacy violation counts of the complaint.

 The facts leading up to these cases are, briefly, as follows: On February 20, 1945 Frank Smith was found dead in the basement of his home in Harrisonburg, Virginia. Mrs. Smith and Garner, the plaintiffs, were charged with the murder of Mr. Smith and convicted. Substantially all of the articles in defendants' magazines were published after the convictions and prior to their reversal by the Supreme Court of Appeals of Virginia. The defendants' magazines are sold all over the nation, and therefore the privacy laws of all states are in question.

 The New York Court of Appeals has held that New York does not recognize a common law right of privacy. Roberson v. Rochester Folding-Box Co., 1902, 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478. As a result of the above decision a limited right of privacy statute was enacted in New York which protects persons against the commercial exploitation of their personality. This statute, insofar as here pertinent, provides as follows:

 N.Y. Civil Rights Law.

 Section 50. Right of privacy.

 '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. Action for injunction and for damages.

 'Any person, whose 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 exemplary damages. * * *'

 The common law grants a much broader right of privacy. It is bottomed on man's 'right to be let alone' and the complainant need not show a commercial use of his name or portrait. See Berg v. Minneapolis Star & Tribune Co., D.C. Minn. 1948, 79 F.Supp. 957, 959. See generally Feinberg, 'Recent Developments in the Law of Privacy', 48 Columbia Law Review, p. 713 et seq. (1948). As has been oft stated, the pioneers in the enunciation of the doctrine of the right of privacy were Samuel D. Warren and Louis D. Brandeis, later Justice Brandeis of the Supreme Court, in their article entitled 'The Right to Privacy', 4 Harvard Law Review 193 (1890). They recognized that 'The right to privacy does not prohibit any publication of matter which is of public or general interest.' (P. 214.)

 Conceding for purposes of this motion that plaintiffs had received a tremendous amount of publicity and notoriety in the press so that they were at the time of the publishing of defendants' articles persons of public interest, the question presented is whether, as a matter of law, defendants could have invaded plaintiffs' rights to privacy with complete immunity from suit.

 Defendants publish magazines entitled 'Official Detective Stories', 'Current Detective', 'Uncensored Detective', 'Women in Crime', etc. which purport to contain accurate accounts of actual criminal investigations and cases. The stories concerning the plaintiffs appeared in defendants' magazines under such lurid titles as 'Mystery of the Hanging Corpse', 'Unholy Crime of the Cheating ...

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