decided.: May 3, 1956.
MARYLAND MANGER, PLAINTIFF-APPELLEE,
KREE INSTITUTE OF ELECTROLYSIS, INC. AND GARO ARTINIAN, DEFENDANTS-APPELLANTS.
Before FRANK, MEDINA and WATERMAN, Circuit Judges.
FRANK, Circuit Judge.
Plaintiff sued defendants for violation of her "right of privacy" granted by Section 51 of the New York Civil Rights Law, McK.Consol.Laws, c. 6.*fn1 The case was tried to a jury which returned a general verdict for plaintiff.
There was evidence from which the jury could reasonably have found, and which we must assume they found, the following: The defendant, Kree Institute, is a corporation engaged in the teaching of electrolysis and the sale of electrolysis equipment for the permanent removal of superfluous hair from the body, known in the trade as "Radiomatic." Defendant Artinian is the sole stockholder of Kree Institute and its president; he is also editor of the magazine "Kree Electrologist," published by the Institute. The Institute in 1949 conducted a contest, open only to practicing electrologists, in which prizes were to be awarded to the writers of the best letters on the subject of "Why I am Glad I Chose Electrolysis as a Career." Plaintiff sent a letter to the contest in which she won first prize. She gave her written consent to the publication in the defendant's magazine of her letter and her photograph. The letter, published (together with her picture) in a Special Contest Issue and in the regular August-September, 1949 issue, had been changed by an employee of the Institute with Artinian's approval, so that plaintiff's statement that she found "the excellent and rapid Radio 'Short-Wave' equipment fascinating * * *," was made to read "rapid Radiomatic (Short-Wave)." Also, the headline of the article containing the letters of the contest winners referred to them as "Kree Operators." Plaintiff did not consent to this change or to the publication of the altered article and her picture accompanying it. Plaintiff has been a practicing electrologist for more than twenty years (one two permanently removes superfluous hair from the human body). She has never used the defendant's Radiomatic equipment in her practice. She has written a book, "How to Develop a Successful Electrolysis Practice," which has been published and circulated nationally. Plaintiff also has written articles on her profession which have appeared in various periodicals, and her biographical sketch was published in "Who's Who in America."
The judge, in his charge, left it to the jury to determine, in its general verdict, whether plaintiff had in writing consented to the publication, and whether defendants had knowingly altered it and published it as altered, and what were her damages. The jury returned a verdict for plaintiff in the amount of $2,250.The judge held the verdict not excessive, and entered judgment on the verdict; from that judgment, defendants have appealed.*fn2
On the basis of the foregoing, there can be no doubt as to the following: (a) The change in the plaintiff's letter was so substantial as to vitiate her written consent. (b) The defendant's publication was knowingly used for "advertising purposes" (as well as for "purposes of trade") within the meaning of Section 51 of the New York Statute. (c) Such a publication, without her written consent violated that statute and entitled her to damages.*fn2a
Section 51, as distinguished from Section 50, is not penal.*fn3 The basis of right of privacy of New York is statutory;*fn3a the enactment of the statute stemmed from severe criticisms of a New York decision holding that, at common law, there was no "right of privacy" invaded by advertising.*fn4 Accordingly, the provision of the New York statute relating to "advertising purposes" has been more liberally construed than the provision as to "purposes of trade." See, Gautier v. Pro-Football, 278 App.Div. 431, 434, 106 N.Y.S.2d 553, affirmed 304 N.Y. 354, 107 N.E.2d 485; Hofstadter, The Development of the Right of Privacy in New York, 127 N.Y.L.J., April 21, 1952, page 1568. Therefore we think the court below did not err in refusing to take the case from the jury. The verdict was not excessive despite the absence of definite proof of damages.*fn5
The judge did not err in receiving in evidence a pamphlet advertising defendant's electrolysis course which was not published until some time after the publication here complained of. It tended to show that the publication of plaintiff's letter and picture in the "Kree Electrologist" was both for advertising purposes and for "purposes of trade."