use, under which merely incidental or isolated uses of a name,
picture or portrait are not actionable. See Damron v.
Doubleday, Doran & Co., 133 Misc. 302, 231 N.Y.S. 444, 446
(Sup.Ct.N.Y.Cty. 1928), aff'd without op., 226 A.D. 796, 234
N YS. 773 (1st Dep't 1929). Whether a use falls within this
exception to liability is determined by the role that the use
of the plaintiff's name or likeness plays in the main purpose
and subject of the work at issue. See Ladany v. William Morrow
& Co., 465 F. Supp. 870, 881 (S.D.N.Y. 1978); Delan by Delan v.
CBS, Inc., 91 A.D.2d 255, 458 N.Y.S.2d 608, 614 (2d Dep't
1983); DeGregorio v. CBS, Inc., 123 Misc.2d 491, 473 N.Y.S.2d
922, 924 (Sup.Ct.N.Y.Cty. 1984).
Here, plaintiff's appearance is "of that fleeting and
incidental nature which the Civil Rights Law does not find
offensive." University of Notre Dame v. Twentieth Century-Fox
Film Corp., 22 A.D.2d 452, 256 N.Y.S.2d 301, 304 (1st Dep't),
aff'd, 15 N.Y.2d 940, 259 N.Y.S.2d 832, 207 N.E.2d 508 (1965).
She is shown in only 9 seconds of this full-length motion
picture, for 4 1/2 seconds of which her face is visible, in the
opening title scenes before the plot begins or any of the
characters appear. Her appearance contributes nothing of
significance to the movie's story line, although it is
incidental in setting the atmosphere for the crime and police
material that follows.
The statute requires a more direct and substantial connection
between the appearance of the plaintiff's name or likeness and
the main purpose and subject of the work.
For example, in Ladany v. William Morrow & Co., plaintiff was
referred to (unflatteringly, he felt) on 13 out of 458 pages of
a book on the 1972 Munich Olympics massacre. One of 101
characters, he was depicted only in one early scene. The court
held that use of the plaintiff's name was incidental to the
book as a whole, and granted defendant's motion for summary
judgment. 465 F. Supp. at 881-82.
In University of Notre Dame v. Twentieth Century-Fox Film
Corp., the court dismissed the claim of Notre Dame University's
president, who was mentioned in three pages of a 143-page
farcical book about college football. 256 N.Y.S.2d at 303-04.
See also DeGregorio, 473 N.Y.S.2d at 924 (use was incidental
where plaintiff appeared for five seconds of 10-minute
broadcast, he did not speak and his name was not given; he and
woman were filmed holding hands in broadcast on romance);
Meeropol v. Nizer, 381 F. Supp. 29, 37-38 (S.D.N.Y. 1974) (child
of Rosenbergs was mentioned 29 times in book on their trial and
execution; court held that "Twenty-nine isolated references of
a fleeting and peripheral nature are insufficient to support a
claim under § 51."), aff'd on other grounds, 560 F.2d 1061 (2d
Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54
L.Ed.2d 756 (1978); Man v. Warner Bros. Inc., 317 F. Supp. 50,
53 (S.D.N.Y. 1970) ("the incidental use of plaintiff's
forty-five second performance in defendants' motion picture of
this public event [the Woodstock Festival] is surely de minimus
[sic]."); Damron, 231 N.Y.S. at 445-46 (single appearance of
plaintiff's name in 398-page book "is clearly not a use
prohibited by the statute.").
Plaintiff argues that the incidental use doctrine applies
only to injunctive relief, an extraordinary remedy requiring a
strong equitable showing, and that it should not be applied
where, as here, she seeks only money damages. However, courts
have invoked the doctrine in dismissing actions for money
damages as well as for injunctions. See Ladany, 465 F. Supp. at
871; Meeropol, 381 F. Supp. at 31. Where the use is incidental,
the courts have stated not merely that particular relief is
unavailable, but that it is not actionable at all. See id. at
38 (references were "insufficient to support a claim under
section 51"); Notre Dame, 256 N.Y.S.2d at 304 (because use was
incidental it was type "which the Civil Rights Law does not
find offensive"); Damron, 231 N.Y.S. at 446 (single use of
plaintiff's name "is clearly not a use prohibited by the
While enjoining the publication of a book or the exhibition
of a movie may raise freedom of speech issues, thus giving
argument a surface appeal, imposing monetary liability on
expression may also present such concerns. See New York Times
Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964) (constitution sets limits on defamation actions).
The doctrine of incidental use was developed to address
concerns that penalizing every unauthorized use, no matter how
insignificant or fleeting, of a person's name or likeness would
impose undue burdens on expressive activity, and carry
consequences which were not intended by those who enacted the
statute. See Damron, 231 N.Y.S. at 446. See also Ladany, 465
F. Supp. at 882. The statute was passed to change New York law,
which then provided no remedy to those whose pictures or names
were used blatantly and commercially, as in advertisements.
Stephano v. News Group Pubs., Inc., 64 N.Y.2d 174, 485 N.Y.S.2d
220, 223, 474 N.E.2d 580, 583 (1984). That is not this case.
Accordingly, defendants are entitled to dismissal of
plaintiff's claim under section 51 of New York's Civil Rights
Plaintiff alleges that "defendants have converted to their
own use, benefit and profit the plaintiff's picture and image."
(Complaint ¶ 12(b)).
In New York, the right of privacy "which generally provides
remedies for any commercialization of the individual's
personality without his consent," is limited to the rights
prescribed in the Civil Rights Law. Stephano, 485 N.Y.S.2d at
224, 474 N.E.2d at 584. See also Pirone v. MacMillan, Inc.,
894 F.2d 579, 585 (2d Cir. 1990); Freihofer v. Hearst Corp., 65
N Y2d 135, 490 N.Y.S.2d 735, 739, 480 N.E.2d 349, 353 (1985)
("We have in the past recognized that, in this State, there is
no common-law right of privacy and the only available remedy is
that created by Civil Rights Law §§ 50 and 51.").
Although plaintiff's claim is called one for conversion, it
is in law a privacy claim, since it is based on the commercial
use of plaintiff's image without her consent. It does not
exist, other than under the Civil Rights Law.
Moreover, any intangible property right that plaintiff has in
her image is incapable of being "converted" under New York law.
See Ippolito v. Lennon, 150 A.D.2d 300, 542 N.Y.S.2d 3, 6 (1st
Dep't 1989) (plaintiff has no property right in his concert
performance that can be converted by showing film of that
IV. Intentional Infliction of Emotional Distress
Although the complaint is unclear, defendants characterize
plaintiff's allegations that their actions caused her "great
mental anguish" and "severe emotional pain" (Complaint ¶¶
14(b), 15(b)) as a claim of intentional infliction of emotional
distress. Plaintiff does not dispute that characterization.
"A cause of action for intentional infliction of emotional
distress must allege `extreme and outrageous conduct, which so
transcends the bounds of decency as to be regarded as atrocious
and intolerable in a civilized society.'" Doe v. American
Broadcasting Cos., 152 A.D.2d 482, 543 N.Y.S.2d 455, 455 (1st
Dep't) (citing Freihofer), app. dismissed, 74 N.Y.2d 945, 550
N YS.2d 278, 549 N.E.2d 480 (Ct.App. 1989). Such a claim lies
only where there has been severe mental pain inflicted through
deliberate and malicious harassment or intimidation. Ibid.
Merely publicizing private, personal facts does not amount to
such a claim. See Freihofer, 490 N.Y.S.2d at 741, 480 N.E.2d at
355 (details about divorce); Doe, 543 N.Y.S.2d at 456 (rape
victims were recognized in defendants' program on rape although
defendants assured them that they would be unrecognizable)
(Rosenberger, J., dissenting from grant of summary judgment).
"If defendant's primary purpose was to advance its own
business interests, and any conduct that harmed plaintiff was
incidental, defendant has not committed the New York tort of
intentional infliction of emotional distress." Rooney v. Witco
722 F. Supp. 1040, 1045 (S.D.N.Y. 1989) (citing cases).
Accordingly, defendants' motion for summary judgment
dismissing this claim is granted.
Defendants' motion for summary judgment is granted. The clerk
of the court is directed to dismiss the complaint.
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