The opinion of the court was delivered by: KIMBA M. WOOD
Defendants move to dismiss this diversity action for invasion of privacy and defamation. I grant the motion to dismiss that aspect of Ms. Geary's privacy claim that purports to state a claim for placing her in a false light, but I deny the motion to dismiss her remaining claims for violation of New York's privacy statute and for defamation.
In 1988, plaintiff Angie Geary appeared in a commercial for Wasa Crispbread, a bread product from Sweden. The commercial juxtaposes two types of scenes: first, Ms. Geary in a towel, apparently emerging from a morning shower to a kitchen where she finds a male companion in a bathrobe, apparently washing his breakfast dishes, and, second, pictures of various types of bread. Ms. Geary approaches her companion and embraces him as the following voiceover plays:
Today, 18 million eat this as bread [cutting to a picture of a bagel and then back to Ms. Geary and her companion], 55 million eat this [cutting to picture of a croissant and then back], 240 million eat this [cutting to a piece of white bread and then back], but only eight million eat this as bread [cutting to a picture of Wasa Crispbread].
These people produce more safe cars and blond beauties. They invented the Nobel Prize and the zipper. They also play better tennis, and they watch less television. That's the Swedish way. Wasa Crispbread. You can have it in America.
As the commercial ends, the viewer sees Ms. Geary leaning back on the kitchen counter, embracing her companion as her elbow knocks a box of Wasa Crispbread off the counter.
After viewing the original Wasa Crispbread commercial, defendant Al Goldstein, the executive producer of the sexually explicit late-night cable television program "Midnight Blue," asked his staff to create a segment for Midnight Blue based on the Wasa Crispbread commercial ("the adaptation").
The resulting adaptation's first half maintained the voiceover's first paragraph and the portions of the commercial in which Ms. Geary appeared, but where the original commercial cut to pictures of various types of bread, the adaptation cut to videotape of scantily clad couples, apparently engaging in oral sex and vaginal and anal intercourse. Thus, instead of the "this" that millions of people "eat" referring to bread, as in the original commercial, "this" referred to sex organs or sexual acts in the adaptation. The original voiceover's second paragraph continued throughout the adaptation's second half, but the visual display consisted almost entirely of pornographic videotape with little cutting to the original commercial, except that it did broadcast the visual accompaniment to the commercial's tag line, "Wasa Crispbread. You can have it in America." Defendants broadcast the adaptation at least six times during October and November 1989. It is undisputed that they did not obtain Ms. Geary's permission to use her image in their program.
According to the amended complaint, after defendants began broadcasting the adaptation, Ms. Geary and members of her family received phone calls from various friends and business acquaintances in the advertising and entertainment industry who had either viewed or heard of her appearance on Midnight Blue. She also learned that the company that produced the original commercial pulled the original commercial from national television, ending the royalty income Ms. Geary received from its broadcast.
defendants' pornographic version of the Wasa Bread commercial was such that it falsely suggested to the viewing audience that Ms. Geary had either willingly participated in the Midnight Blue segment or consented to the program's use of her image and likeness from the original Wasa Bread commercial.
Currently under consideration is defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Defendants argue that New York's privacy statute does not apply to their adaptation, that New York does not recognize the tort of placing someone in a false light, and that the adaptation did not contain any defamatory statement. I will address each of these arguments in turn.
A. Standards for Deciding a Motion ...