UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
September 2, 1980
Jackie Collins LERMAN, Plaintiff,
CHUCKLEBERRY PUBLISHING, INC., and Publishers Distributing Corporation, Defendants
The opinion of the court was delivered by: WERKER
ON MOTION FOR RECONSIDERATION
This is a motion for reconsideration of that portion of my opinion and order dated July 31, 1980 which granted summary judgment for the plaintiff Jackie Collins Lerman on her invasion of privacy claim against the defendant Publishers Distributing Corporation ("Publishers"). Publishers contends that a defendant cannot be liable under section 51 of the New York Civil Rights Law unless he has knowledge that a plaintiff's name or likeness is being used without consent for trade purposes. Publishers thus finds fault with the court's holding that it is liable under section 51 even though it may not have known all the circumstances surrounding the publication of plaintiff's name in Adelina magazine.
At the outset, the court notes that the authorities relied on by Publishers in support of this motion were not brought to the court's attention in the papers in support of the original motion. Indeed, the argument that Publishers cannot be liable since its role was merely that of a distributor was not pursued at all in the memorandum of law accompanying the original motion papers. Yet, most of the authorities presently relied on by Publishers were available to it at that time, and Publishers certainly had an opportunity then to raise the arguments raised now.
Hence, Publishers current efforts to avoid liability are somewhat untimely, and this would be reason enough to deny the motion.
In any event, the arguments presently raised must be rejected even when considered on their merits. In contending that a distributor's liability is narrowly limited, Publishers relies primarily on defamation cases and authorities. Since the court's July 31st opinion was concerned only with plaintiff's statutory invasion of privacy claim, these defamation cases and authorities are not on point. Publishers has not cited any case involving the liability of a distributor (who was not also the publisher) under sections 50 and 51 of the New York Civil Rights Law. Moreover, Publishers fails to address the fact that while the language of section 51 expressly requires knowledge for exemplary damages, no such requirement is set forth for compensatory and injunctive relief. In the absence of caselaw holding otherwise, section 51 can only be read to require knowledge for exemplary damages but not for compensatory and injunctive relief.
Publishers argues strenuously that there cannot be liability under sections 50 and 51 absent proof of fault. The court does not disagree with this proposition. However, it is clear that fault has been established. The issue of fault or intent to capitalize on a plaintiff's name is part of the element of use for purposes of advertising or trade. A defendant who uses a plaintiff's name coincidentally has no intent to capitalize on the plaintiff's name, and thus is not using the name for purposes of trade within the meaning of the statute. In the instant case, the defendant Chuckleberry Publishing, Inc. ("Chuckleberry") did indeed use the plaintiff's name for purposes of trade, clearly with the intent to capitalize on her name. To the extent that Publishers was involved as an agent of Chuckleberry in distributing the magazine, Chuckleberry's fault must be imputed to Publishers and Publishers must be responsible for any injury to the plaintiff. If, as between Publishers and Chuckleberry, Publishers is the less culpable party, that fact will be reflected in any award and apportionment of damages.
Publishers renews the argument pressed on the original motion that the plaintiff is a public figure and that consequently recovery is barred absent a showing of actual malice. Even assuming the plaintiff is a public figure, this argument must nevertheless be rejected. To recover under the New York invasion of privacy statute, a public figure who is the subject of a false news report or other incorrect informational presentation must indeed prove knowledge of the falsity or a reckless disregard of the truth. Time, Inc. v. Hill, 385 U.S. 374, 387-88, 87 S. Ct. 534, 541-42, 17 L. Ed. 2d 456 (1967); Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 127, 233 N.E.2d 840, 842, 286 N.Y.S.2d 832, 834 (1967), appeal dismissed, 393 U.S. 1046, 89 S. Ct. 676, 21 L. Ed. 2d 600 (1969). However, a person is not stripped of his right of privacy merely because he becomes a public figure, Reilly v. Rapperswill Corp., 50 App.Div.2d 342, 345, 377 N.Y.S.2d 488, 491-92 (1st Dep't 1975); Youssoupoff v. Columbia Broadcasting System, Inc., 48 Misc.2d 700, 703, 265 N.Y.S.2d 754, 758 (1965), and the actual malice requirement does not extend to situations where, as here, the name of a public figure is being used in a completely exploitive, commercial fashion. See Ali v. Playgirl, Inc., 447 F. Supp. 723, 727-28 (S.D.N.Y.1978), and cases cited therein. Compare Ann-Margret v. High Society Magazine, Inc., 498 F. Supp. 401 (S.D.N.Y.1980) (plaintiff, a well-known actress, chose to appear partially nude in a motion picture; reprint of a photograph of that scene in defendants' "tacky" but not "pornographic" magazine did not give rise to a cause of action under section 51).
The motion for reconsideration is denied.