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AYN RAND v. HEARST CORPORATION (03/18/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.40855 <http://www.versuslaw.com>; 298 N.Y.S.2d 405; 31 A.D.2d 406 March 18, 1969 AYN RAND, RESPONDENT,v.HEARST CORPORATION, APPELLANT Appeal from an order of the Supreme Court at Special Term (Irwin D. Davidson, J.), which granted a motion by plaintiff to dismiss all affirmative defenses. Alfred H. Wasserstrom of counsel (Sherman H. Saiger with him on the brief; Lipton, Brennan & Wasserstrom, attorneys), for appellant. Henry Mark Holzer of counsel (Erika Holzer with him on the brief), for respondent. Weil, Gotshal & Manges (Horace S. Manges, Edward C. Wallace and Marshall C. Berger on the brief) of counsel for American Book Publishers Council, Inc., amicus curiae. Rabin, J. Capozzoli, J. P., McGivern and Nunez, JJ., concur with Rabin, J.; Steuer, J., dissents in opinion. Author: Rabin


Appeal from an order of the Supreme Court at Special Term (Irwin D. Davidson, J.), which granted a motion by plaintiff to dismiss all affirmative defenses.

Rabin, J. Capozzoli, J. P., McGivern and Nunez, JJ., concur with Rabin, J.; Steuer, J., dissents in opinion.

Author: Rabin

 Once again we are called upon to determine whether the right of privacy of a public figure has been invaded to a point where it can be said that sections 50 and 51 of the Civil Rights Law have been violated.

At what point may a public figure use the shield of privacy to protect against the use of his or her name -- particularly when used in a manner that could be said to be of public interest? Specifically, may this plaintiff, who in her complaint says that her "name is well-known in the contemporary intellectual and literary world, [and] among the public at large generally she possesses great fame as a writer", rightfully complain when her style of writing is compared with that of the author of a book published, albeit such comparison appears on the cover of that book? Is such use of her name "selfish, commercial exploitation of [her] personality" as the Court of Appeals in Gautier v. Pro-Football, (304 N. Y. 354, 358) held must be established in order to afford protection to a public figure, and before it may be held to constitute use for advertising purposes within the meaning of sections 50 and 51 of the Civil Rights Law? Must every mention of the name of a prominent public figure -- even though it be mentioned in an advertisement -- be deemed to be an invasion of the right of privacy? These are some of the questions we reach, and to which we must find answer in this case.

As to the protection of the right of privacy of a public figure, the Court of Appeals in the case of Estate of Hemingway v. Random House (23 N.Y.2d 341, 352) had this to say: "The fourth count -- in which only Hemingway's widow asserts a cause of action -- is grounded on the claim that the Hotchner book intrudes upon her privacy in violation of section 51 of the Civil Rights Law. The decisions in Time, Inc. v. Hill (385 U.S. 374, supra) and Spahn v. Julian Messner, Inc. (21 N.Y.2d 124) dispose of the point and confirm the correctness of the dismissal of this cause of action. Both of those cases establish that, in the light of constitutional guarantees of free speech, section 51 may not be applied to afford recovery to a public figure or in matters of public interest -- to quote from Hill (385 U.S., at p. 388) -- 'in the absence of proof that the defendant published the [item] with knowledge of its falsity or in reckless disregard of the truth.' (See, also, Spahn, 21 N.Y.2d, at p. 127.)"

And, if the case of Booth v. Curtis Pub. Co. (15 A.D.2d 343, affd. 11 N.Y.2d 907) stands for anything, it stands for, and establishes the proposition that not in every case where a name or picture of a public figure is used without consent -- even in an advertisement -- may we say that the Civil Rights Law has been violated. That must be, and is conceded.

In the light of the above principles we consider the case under review. There is no dispute as to the relevant facts involved in this action. Defendant is the publisher and distributor of a paperback book entitled "Chaos Below Heaven" by Eugene Vale. On the cover of the book the plaintiff's name is mentioned in the following manner: "Ayn Rand Enjoys * * * The Same Kind Of Mystique Analysis As Vale * * * Their Underlying Drive Is The Same." Such quotation is a true and accurate excerpt from a review of the subject book which was published in the newspaper, the San Francisco Examiner. The plaintiff here alleges in her complaint that she is "well-known in the contemporary intellectual and literary world [and] among the public at large generally she possesses great fame as a writer".

The complaint also alleges that plaintiff did not consent to the use of her name but that the defendant used it for advertising purposes and for the purpose of trade. The plaintiff, therefore, concludes that the defendant has violated sections 50 and 51 of the New York Civil Rights Law.

In answer to the complaint the defendant has interposed various affirmative defenses, as well as two partial affirmative defenses. Briefly summarized they are as follows: That the complaint fails to state a cause of action; that the matter complained of was informative or educational in nature, and that the plaintiff, as a well-known author was related to the material; that the matter complained of was a fair and truthful report of a subject of public interest in a field in which the plaintiff was a public figure; that the complained of matter was merely quoted material taken from a published newspaper review, and that defendant in so quoting, repeated the reviewer's use of plaintiff's name in the context of literary comparison, thereby merely republishing and reporting fairly and accurately on a matter of public interest; that the use of this material was in conformity with the general custom in the book-publishing field and that the use was in good faith and without malice.

Upon motion of the plaintiff, Special Term ordered all of the affirmative defenses stricken, granting leave to replead only such defenses as might be in mitigation of damages. That motion searches the record and puts in issue the legal sufficiency of the complaint itself. (Smith v. Helbraun, 21 A.D.2d 830.) Therefore, if the complaint fails to state a cause of action it may, upon this motion, be dismissed, although no cross motion to dismiss has been made.

The history and purpose of sections 50 and 51 of the Civil Rights Law have been the subject of much discussion. (See, e.g., Spahn v. Julian Messner, Inc., 23 A.D.2d 216, affd. 18 N.Y.2d 324, vacated and remanded 387 U.S. 239, affd. on rearg. 21 N.Y.2d 124.) It is sufficient for our purposes to say that the sections in the law were designed to protect an individual against "selfish, commercial exploitation". (Gautier v. Pro-Football, supra.)

The law -- narrowly written -- attempts to do so by proscribing the use of the person's name or picture for the purpose of trade or advertising. However, it has already been clearly established that not in every instance where a person's picture or name is used in connection with advertising will a violation of the statute be found. (See Booth v. Curtis Pub. Co., supra.) The Booth case presented a situation where a person's photograph was used for advertising purposes and yet it was held that plaintiff had no cause of action.

Thus, in construing the law, the courts have looked to its underlying purpose -- the need it was intended to fill -- and rather than adhering to its exact letter have interpreted the spirit in which it was written. The words "advertising purposes" and for the "purposes of trade" were used as the means to carry out the law's fundamental purpose -- the protection of an individual's right of privacy. They must be construed narrowly and not used to curtail the right of free speech, or free press, or to shut off the publication of matters newsworthy or of public interest, or to prevent comment on matters in which the public has an interest or the right to be informed. Its underlying purpose being to protect privacy, in the case of a public figure -- who by the very nature of being a public figure has no complete privacy -- no liability exists when his or her name or picture is used without consent, or when the article complained of is of public interest, unless, of course, the publication is knowingly false (Estate of Hemingway v. Random House, 23 N.Y.2d 341), or may be considered a blatant "selfish, commercial exploitation" of the individual's personality. (Gautier v. Pro-Football, supra.) As stated by the Court of Appeals in Spahn, and quoted with approval by the United States Supreme Court in Time, Inc. v. Hill (385 U.S. 374, 382) "ever mindful that the written word or picture is involved, courts have engrafted exceptions and restrictions onto the statute to avoid any conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest." (18 N.Y.2d 324, 328. See, e.g., Gautier v. Pro-Football, supra; Koussevitzky v. Allen, Towne & Heath, 188 Misc. 479, affd. 272 App. Div. 759; Sidis v. F-R Pub. Corp., 113 F. 2d 806, cert. den. 311 U.S. 711.)

It is quite apparent, therefore, that books and publications have a special position in the law. My distinguished colleague in dissenting puts it very aptly when he states that "concededly book publishing, though a business, stands on a somewhat different plane than many other businesses in that freedom of the press is often involved." Therefore, in considering books and publications, courts must take a broad view of what may or may not be written and what may or may not be said about books and their authors. The right to publish factual matter of interest to the public was recently considered in the case of Time, Inc. v. Hill (supra), where the United States Supreme Court held that there was no action under the New York privacy statute in the absence of proof that the matter was published with knowledge of its falsity, or with a reckless disregard of the truth. Hence, the courts have been careful to interpret the right of privacy statutes in such manner as would permit the free flow of information. "Either or both of two factors may be involved in justifying breach of the seal of privacy: the propriety of public information as newsworthy, in the ...


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