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Lerman v. Flynt Distributing Co.

September 10, 1984

JACKIE COLLINS LERMAN, PLAINTIFF-APPELLEE,
v.
FLYNT DISTRIBUTING CO., INC., DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Southern District of New York (Werker, J.) following a jury trial in which plaintiff was awarded $10,000,000 for violations of N.Y. Civ. Rights Law §§ 50-51 and plaintiff's right to publicity. Reversed. Judge Bonsal concurs and dissents in a separate opinion.

Author: Cardamone

Before: VAN GRAAFEILAND and CARDAMONE, Circuit Judges, and BONSAL, District Judge.*fn*

CARDAMONE, Circuit Judge:

Freedom of expression preserves all other liberties so inseparably that freedom of the press and a free society either prosper together or perish together. Yet, because of its enormous power, the contemporary press is under heavy attack because of a widely held preception that it uses its special First Amendment status as a license to invade individual privacy. This case illustrates the complexity of the concerns when these interests clash.

Defendant, a national distributor of magazines in which offensive material concerning plaintiff appeared, appeals from a judgment in plaintiff's favor. In her action plaintiff asserted causes of action for libel, violation of a statutory right of privacy, and appropriation of the common law right to publicity. In every invasion of privacy suit there is a course to be run in order for plaintiff to reach the goal of recovery. In this case, plaintiff's libel action was dismissed and her right to publicity claim fails to fit within that tort. The civil rights cause does not lie as one for advertising purposes, as that term is defined under state law; but it does state a cause of action for defendant's invasion for trade purposes of her right to privacy. Having successfully progressed that far, plaintiff would need to demonstrate a level of defendant's fault on that privacy claim sufficient to satisfy constitutional protection for freedom of the press. Here, on the final lap, plaintiff's proof falls short.

I Background

On February 29, 1980 the plaintiff Jackie Collins Lerman received a package at her home in London, England. An accompanying letter from a publicity agent who had formerly worked with Ms. Lerman explained that nude photographs, supposedly of plaintiff, appeared in the enclosed advance copy of Adelina magazine. Plaintiff discovered that the May 1980 issue of Adelina had misidentified her as an actress who appeared in Ms. Lerman's and her husband Oscar Lerman's movie entitled "The World is Full of Married Men." Two black and white photographs of the anonymous actress printed from the movie film appeared on pages 120-21 of the magazine. The misidentified actress appears topless in one of the pictures and in an "orgy" scene in the other. The caption identifies the photos as being Ms. Lerman and labels her as the "starlet" who appeared in an orgy scene in the film.

The cover of the magazine proclaimed to its readers: "In the Nude from the Playmen archives . . . Jackie Collins." The short article accompanying the actress' photo with Ms. Lerman's name comments on the increasing willingness of "serious" actresses to appear nude in films. While Ms. Lerman authored the book and wrote the screenplay for "Married Men" and her husband directed the movie, she did not appear in the movie, clothed or otherwise, and has never appeared nude in public.

Immediately upon receipt of this package, Ms. Lerman retained a lawyer and three weeks later -- on March 24, 1980 -- commenced an action in the United States District Court for the Southern District of New York (Werker, J.) against the publisher, Chuckleberry Publishing, Inc. ("Chuckleberry"), and against the original national distributor, Publishers Distributing Company, Inc. ("PDC" or "Publishers Distributing") based upon the May 1980 publication and distribution of Adelina. Plaintiff sought an injunction and damages based on (a) libel (b) defendant's violation of New York's Civil Rights Law §§ 50-51 and (c) invasion of her common law right to publicity.

On March 31 the district judge issued a preliminary injunction restraining the distribution of Adelina. While the extent of the original defendants' compliance with that injunction is disputed, it is clear that Publishers Distributing informed all of its more than 500 nationwide wholesale customers of Ms. Lerman's lawsuit and the outstanding injunction, and requested that all unsold copies of the magazine be returned. Chuckleberry nevertheless included in its June 1980 Adelina issue a subscription solicitation page that reprinted, in reduced size and among other reprinted Adelina covers, the May 1980 cover page that claimed to contain a photo of Jackie Collins "In the Nude from the Playmen archives." The identical solicitation page appeared six months later in the January 1981 issue of Adelina.

On March 17, 1980, shortly before the original lawsuit was commenced, but after the May issue of Adelina was already in the channels of distribution, Flynt Distributing Company (Flynt Distributing or FDC), the present appellant, purchased the contract to distribute Adelina from Publishers Distributing. Flynt Distributing was joined as a party defendant to this litigation in April 1981. Plaintiff sought the same relief against Flynt Distributing with respect to the June 1980 and January 1981 distribution of Adelina as she had sought against the original defendants for the May publication. In an amended complaint plaintiff asserted these same causes of action against Flynt Distributing for the May 1980 issue.

The district court granted plaintiff's motions for summary judgment against Chuckleberry Publishing, Publishers Distributing and Flynt Distributing for violations of New York's Civil Rights Law §§ 50-51 and for defendant's invasion of plaintiff's right to publicity. Plaintiff's libel action against the defendants was dismissed. In February 1983 plaintiff settled with Publishers Distributing for $100,000. Chuckleberry is in Chapter 11 bankruptcy reorganization.

In June 1983, with both original defendants out of the case, plaintiff proceeded to trial before a jury against Flynt Distributing. Ms. Lerman sought damages under her New York statutory privacy claim and her common law right to publicity arising from the May 1980 publication. Inasmuch as liability had already been determined in her favor by the trial court's grant of summary judgment, she also sought damages for distribution of the June 1980 and January 1981 editions of Adelina. After a short trial the jury returned a special verdict determining that defendant Flynt Distributing was liable for the May 1980 issue and awarding Ms. Lerman a total of $7 million in compensatory and $33 million in exemplary damages.*fn1 The trial court struck $30 million from the exemplary damage award, leaving intact an award of $7 million compensatory and $3 million exemplary damages. It is from this $10 million judgment that defendant Flynt Distributing has appealed.

Since plaintiff has not cross-appealed, we need not consider whether the district court correctly dismissed plaintiff's libel claim on the ground that she failed to plead special damages. Discussion will focus primarily on two causes of action -- New York's statutory action for violation of the right of privacy and the common law action for violation of the right to publicity. The parties agree that New York law governs in this diversity case.

II Grounds for Recovery Under State Law

A. Background Leading to Enactment of New York's Right of Privacy Statute

The traditional common law rein on media abuse was the libel action. But in 1890 Samuel Warren and Louis Brandeis announced their recognition of a developing right of privacy. See generally S. Warren and L. Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890). The article was a direct response to perceived abuses by the mass media of the day:

The press is overstepping in every direction the obvious bounds of propriety and of decency. . . . Modern enterprise and invention have, through invasions upon [man's] privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

Id. at 196.

Following the Warren-Brandeis article, courts were asked to recognize this "new" tort. The New York Court of Appeals rejected the invitation in Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902), where the picture of an attractive young woman, used without her permission, adorned more than 25,000 posters advertising the defendant's flour. Her suit for this invasion of her privacy was dismissed by New York's highest court. In 1903 the public outcry over this seemingly unfair decision resulted in the enactment by the New York State Legislature of sections 50 and 51 of the Civil Rights Law, entitled "Right of Privacy." Section 50 provides criminal penalties for the use of a person's name, picture or likeness for advertising or trade purposes (the only two cases ever brought under § 50 were dismissed before trial), and § 51 gives the individual victim of such use the right to obtain an injunction and a cause of action to obtain compensatory and exemplary damages:

Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without [his] written consent . . . may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait or picture in such manner . . . the jury in its discretion may award exemplary damages.

New York Civ. Rights Law § 51 (McKinney Supp. 1993). New York's highest court has consistently reminded litigants that "there exists no so-called common law right to privacy" in New York. Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 497 n.2, 410 N.Y.S.2d 282, 382 N.E.2d 1145 (1978); see Arrington v. The New York Times Co., 55 N.Y.2d 433, 440, 449 N.Y.S.2d 941, 434 N.E.2d 1319 (1982).

B. New York's Right of Privacy Statute

In granting summary judgment to plaintiff against the original defendants, Publishers Distributing and Chuckleberry, under sections 50-51,*fn2 the district court stated: "To make out a claim under section 51, a plaintiff must establish (1) that the defendant used plaintiff's name, portrait or picture within the state, (2) for purposes of advertising or trade, and (3) without first obtaining plaintiff's written consent." 496 F. Supp. 1105, 1107-08. The trial court continued, "The fact that Publishers [PDC] may not have known that the plaintiff's name was being used without her consent and in the manner in which it was used is irrelevant to the questions of compensatory damages and injunctive relief." Id. at 1109. The court did not then decide the public figure question, concluding that actual malice was not required even if plaintiff were a public figure where the use was not informational but rather, "completely exploitive, [and] commercial." Id. at 1110. The district court held "there is no such informational or newsworthy dimension to Chuckleberry's unauthorized use of plaintiff's name," and that "the use of her name was for a commercially exploitive effect rather than for the purpose of informing the public about a newsworthy event." Id. at 1107-08. As we shall discuss shortly, these statements were in some respects inaccurate and in other respects erroneous as a matter of law. The district court was equally in error in its June 3, 1982 opinion when it granted summary judgment to plaintiff against Flynt Distributing. 544 F. Supp. 966.

On its face the New York privacy statute seems to provide a cause of action only for "commercial appropriation," defined in Roberson as the defendant's act, "for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent." Roberson, supra, 171 N.Y. at 545. Commentators and the American Law Institute recognize "commercial appropriation" as only one of four kinds of invasion of privacy and distinguish it from the torts of publicly placing a person in a false light, intrusion upon one's personal solitude and the public disclosure of private facts. See, e.g., W. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960); Restatement (Second) of Torts § 652A (1976). The last two invasions -- intrusion upon personal solitude and public disclosure of private facts -- are not the subject of any claim on this appeal. The first two torts -- commercial appropriation and false light -- are implicated.

Analysis must commence with the New York statute and the substantial case law it has spawned. See, L. Savell, Right of Privacy -- Appropriation of a Person's Name, Portrait or Picture for Advertising or Trade Purposes Without Prior Written Consent: History and Scope in New York, 48 Albany L. Rev. 1 (1983). The terms "advertising purposes" and "trade purposes" constitute the two prongs of the statute and ...


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