APPEAL by defendants R. J. Reynolds Tobacco Company and New York News Syndicate Co. Inc., from an order of the Supreme Court at Special Term (KOCH, J.), entered May 15, 1951, in New York County, which denied a motion by said defendants for a dismissal of the complaint.
APPEAL by defendant Cotlow from an order of said court, entered May 15, 1951, which denied a motion by said defendant for a dismissal of the complaint.
Gerald J. Dunworth of counsel (Walter R. Barry with him on the brief; Coudert Brothers, attorneys), for R. J. Reynolds Tobacco Company and New York News Syndicate Co. Inc., Appellants.
A. Walter Socolow for Lewis Cotlow, appellant.
Harold J. Sherman of counsel (Fitelson and Mayers, attorneys), for respondents.
This suit is grounded upon the printed matter contained in a full page advertisement of a brand of cigarettes
manufactured by defendant, R. J. Reynolds Tobacco Company, in a newspaper published by defendant New York News Syndicate Co. Inc. The advertisement referred to defendant Lewis Cotlow as a famed explorer and depicted him in certain African scenes, wherein it is stated that Cotlow witnessed and took motion pictures of these unusual sights.
The first cause of action which is against all defendants alleges that about five years ago plaintiff Armand Denis Productions, Inc., made a feature motion picture 'Savage Splendor' portraying wild animal life in Africa and exciting episodes of perilous adventure in connection with the photographing of the wild life. In the motion picture, plaintiff Armand Denis was shown as the hero who supervised, directed and actually photographed the perilous adventures.
It is claimed that by reason of the personal appearance of plaintiff, Armand Denis, in the motion picture he became identified in the minds of the general public as an authentic and outstanding explorer and photographer of motion pictures featuring African wild life. It is further alleged that by publication of the advertisement by defendants there was intentionally conveyed to the public the false impression that defendant Cotlow was the actual hero of the perilous episodes featured in 'Savage Splendor' and that plaintiff Armand Denis was just a fraud and was not entitled to the credit for his ostensible activities in the motion picture.
The Special Term held that the first cause of action was sufficient under the authority of Advance Music Corp. v. American Tobacco Co. (296 N.Y. 79). In our opinion the doctrine announced by the Court of Appeals in that case is not applicable to the facts pleaded in the complaint under attack here.
A facsimile of the advertisement has been made a part of plaintiffs' complaint. Nowhere does there appear therein the slightest reference to either of plaintiffs or to the motion picture 'Savage Splendor'. No charge is made by plaintiffs that defendant Cotlow did not have the experience suggested in the advertisement or that plaintiff Armand Denis is the only person who could have accomplished the feats of photography portrayed therein. Cotlow, a photographer, according to the complaint, was engaged as a subordinate in connection with photographing of various scenes in Africa contained in the film 'Savage Splendor', but neither in the advertisement ...