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August 17, 1981

Jackie Collins LERMAN, Plaintiff,
CHUCKLEBERRY PUBLISHING, INC. and Publishers Distributing Corporation, Defendants

The opinion of the court was delivered by: WERKER

This action for libel, invasion of privacy and violation of the right of publicity was brought by plaintiff Jackie Collins Lerman, a citizen of the United Kingdom, against New York defendants Chuckleberry Publishing, Inc. ("Chuckleberry") and Publishers Distributing Corporation ("PDC"). This Court granted plaintiff's motions for a preliminary injunction on March 31, 1980 and for partial summary judgment on her invasion of privacy claims against defendants under §§ 50 and 51 of the New York Civil Rights Law on July 3, 1980. Subsequently, this Court denied defendants' motion for reconsideration on September 2, 1980. Lerman v. Chuckleberry Publishing Co., 496 F. Supp. 1105 (S.D.N.Y.1980).

This case is presently before the court on several motions. First, plaintiff moves for leave to amend her original complaint pursuant to Fed.R.Civ.P. 15(a). Second, defendants PDC and Chuckleberry move for summary judgment pursuant to Fed.R.Civ.P. 56 on the issues of libel and violation of the right of publicity. Third, plaintiff moves, pursuant to Fed.R.Civ.P. 37 for an order striking the answer and counterclaim of defendant Chuckleberry, entering a default judgment against Chuckleberry and awarding plaintiff the reasonable expenses, including attorney's fees, caused by the failure of Chuckleberry to comply with discovery orders in this action. Finally, defendant PDC cross moves for an order, pursuant to Fed.R.Civ.P. 37, 30, 42, 45 and 55 to preclude co-defendant Chuckleberry from opposing PDC's cross-claim for indemnity and ordering that judgment be entered thereupon if PDC is found liable to plaintiff; awarding PDC attorneys' fees in the amount of $ 1,000; severing the claims of plaintiff against PDC from plaintiff's claims against Chuckleberry for trial; and staying trial against PDC pending an inquest on damages against Chuckleberry.

This action arises from the publication of a picture of a nude woman, incorrectly identified as plaintiff, in the May, 1980 issue of Adelina, and the publication of plaintiff's name on the cover of Adelina under the heading "In the Nude from the Playmen Archives." The May, 1980 issue of Adelina was published and distributed by defendants Chuckleberry and PDC respectively. The details of the dispute between these parties are set forth in this court's decision dated July 3, 1980, Lerman v. Chuckleberry Publishing Co., 496 F. Supp. 1105 (S.D.N.Y.1980), and this decision assumes familiarity with the prior opinion.


 Plaintiff's Rule 15(a) motion for leave to amend the complaint is based on the republication, without plaintiff's consent, of the cover of the May, 1980 issue of Adelina, subsequent to the commencement of this lawsuit, in advertisements for the sale of Adelina in the June, 1980 and January, 1981 issues of Adelina and in the February/March, 1981 issue of Rooster, the new title of Adelina. The statement "In the Nude from the Playmen Archives ... Jackie Collins" is clearly visible in the advertisements.

 Although plaintiff has moved to amend the complaint it appears that the causes of action she seeks to assert are based on events arising after the date the first amended pleading was filed. Thus, the motion to amend will be treated as a motion to serve a supplemental pleading pursuant to Fed.R.Civ.P. 15(d).

 Defendant PDC opposes plaintiff's motion on four grounds: (1) that plaintiff failed to comply with Civil Rule 3(b) by bringing her motion by notice and affidavit with no supporting memorandum of law; (2) that the additional claims are legally insufficient; (3) that plaintiff has unduly delayed in filing this motion; and (4) that PDC will suffer prejudice if this court grants plaintiff leave to amend. I do not find any of these grounds sufficiently compelling and grant plaintiff leave to supplement her original complaint.

 Under Rule 15(d), the court in its discretion may grant leave to file a supplemental pleading at any time during which the proceeding is before the court, when to do so "will promote the economic and speedy disposition of the entire controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to the action." C. Wright & A. Miller, 6 Federal Practice and Procedure § 1504 (1971).

 While a failure to "serve and file with the motion papers a memorandum setting forth the points and authorities relied on ... may be deemed sufficient cause for the denial of the motion" in appropriate cases, Civil Rule 3(b), I do not find this to be such a case. This motion was brought to the court's attention by letter and subsequently discussed at a pretrial conference held on March 27, 1981 at which time the court indicated that plaintiff's motion to amend would be favorably entertained. Under the circumstances, denial of the motion would be inappropriate.

 PDC's arguments addressing the sufficiency of the proposed supplements to the complaint are unavailing on the instant motion. Unless a proposed amendment is clearly frivolous or legally insufficient on its face, the substantive merits of a claim or defense should not be considered on a motion to amend. Nyscoseal, Inc. v. Parke, Davis & Co., 28 F.R.D. 24, 25 (S.D.N.Y.1961). None of plaintiff's claims here appear to be frivolous. Moreover, PDC's argument that it was not the distributor of the June, 1980 issue of Adelina is a question of fact to be determined on the merits and not at this stage of the litigation.

 In addition, it does not appear that plaintiff has unduly delayed in making this motion. The cover of Adelina on which plaintiff's name appeared was republished three times subsequent to the granting of the preliminary injunction and the filing of the original complaint, with the last republication occurring in January 1981. Plaintiff's claims concerning the republications hardly present new issues as PDC argues. Rather, these additional claims arise out of the same series of transactions and simply conform the pleadings to the evidence subsequently brought to light. Furthermore, as the motion to amend was made while summary judgment motions were pending before the court, PDC's allegation that plaintiff has purposefully waited "until the eve of trial" to move for leave to amend is without merit. Finally, PDC does not claim that it will be prejudiced in any particular way such as extensive additional discovery, inability to prepare a case on the issues, or the added expense or burden of a more complicated and lengthy trial. In light of the above, plaintiff's motion to supplement the complaint is granted.


 Summary judgment is to be granted only where there is no genuine issue of material fact. SEC v. Research Automation Corp., 585 F.2d 31 (2d Cir. 1978). The evidence presented must be considered in the light most favorable to the nonmoving party "with the burden on the moving party to demonstrate the absence of any factual issue genuinely in dispute." Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir. 1975).


 Courts in this circuit, interpreting New York law, have recognized a common law "right of publicity" as distinct from the statutory right of privacy under §§ 50 and 51 of the New York Civil Rights Law. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.), cert. denied, 346 U.S. 816, 74 S. Ct. 26, 98 L. Ed. 343 (1953); Ali v. Playgirl, Inc., 447 F. Supp. 723, 728 (S.D.N.Y.1978); M. Nimmer, The Right of Publicity, 19 Law & Contemp. Prob. 203 (1954). The right of publicity comprises a person's right to own, protect and commercially exploit his own name, likeness and persona. In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576, 97 S. Ct. 2849, 2857, 53 L. Ed. 2d 965 (1977), the Supreme Court noted that the state's interest in protecting an individual's right of publicity " "is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.' " Id. (quoting Kalven, Privacy in Tort Law Were Warren and Brandeis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966)).

 An individual claiming a violation of his right of publicity must show: (1) that his name or likeness has publicity value; (2) that he himself has "exploited" his name or likeness by acting "in such a way as to evidence his ... own recognition of the extrinsic commercial value of his ... name or likeness, and manifested that recognition in some overt manner ..." Hicks v. Casablanca Records, 464 F. Supp. 426, 429 (S.D.N.Y.1978); see Factors Etc., Inc. v. Creative Card Co., 444 F. Supp. 279, 283 (S.D.N.Y.1977); Factors, Etc., Inc. v. Pro Arts, Inc., 444 F. Supp. 288 (S.D.N.Y.1977), aff'd, 579 F.2d 215 (2d Cir. 1978), cert. denied, 440 U.S. 908, 99 S. Ct. 1215, 59 L. Ed. 2d 455 (1979); and (3) that defendant has appropriated this right of publicity, without consent, for advertising purposes or for the purposes of trade. Ann-Margret v. High Society Magazine, Inc., 498 F. Supp. 401, 406 (S.D.N.Y.1980).

 A close scrutiny of the numerous press releases, interviews, and newspaper and magazine articles written about plaintiff Jackie Collins Lerman leads me to conclude that the name and persona of this celebrated novelist and screenwriter, whose picture, at one time, graced even the subway stations of New York, is commercially valuable, or, stated differently, has publicity value. Thus, plaintiff has established the first element of the cause of action. Plaintiff's use of her name and likeness on posters, on the jackets of her novels and in interviews in connection with the marketing of her books ...

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