falls within the public interest exception to the statute. Moreover, they assert, their mere claim that the adaptation was editorial comment requires this court to apply the public interest exception.
Defendants are correct in asserting that it is not the business of this court to pass on the merit of defendants' views or to "determine what editorial content is of legitimate public interest;" that is a job for editors and publishers, not for courts. Gaeta v. New York News, Inc., 62 N.Y.2d 340, 477 N.Y.S.2d 82, 85, 465 N.E.2d 802 (1984). However, in cases like this one, courts are required to decide whether a factual issue exists as to whether or not a person's image was used in connection with editorial expression. As discussed at length above, when a defendant relies on the public interest exception, courts must evaluate the article under scrutiny to determine whether it deals with a matter of public interest. See, e.g., Titan Sports, Inc. v. Comics World Corp., 870 F.2d 85, 88-89 (2d Cir. 1989) (in determining whether posters included in magazine fall within statute's purview, "trial court must consider whether these photos are included primarily for their 'public interest aspect' or whether whatever public interest aspect might be involved 'is merely incidental to [the distributors'] commercial purpose.'") (citations omitted). Such a practice makes perfect sense. If courts allow broadcasters to remove themselves from the statute's reach simply by saying that they (the broadcasters) view their broadcast as an editorial, without requiring them to point to objective indicia that that is the case, then any defendant could escape the statute's limitations merely by claiming that his unauthorized use expressed editorial views. Instead, where a court finds that a factual issue exists regarding whether an image was used in connection with editorial expression, the broadcaster must establish that defense at trial.
Here, there is no objective indication that would require a fact finder to conclude that the adaptation's makers intended it to have editorial content. As mentioned above, no editorial comment surrounds the adaptation's presentation, and a reasonable viewer might not even necessarily understand that a nationally broadcast commercial -- the alleged target of the editorial content -- was part of the adaptation. Even if the viewer did know that portions of the adaptation originated with a nationally broadcast commercial, a reasonable viewer could conclude that Midnight Blue was merely attempting a humorous word play -- showing people about to eat breakfast, but cutting to sexual organs when talking about the "this" that people eat. This interpretation would find support in two other adaptations broadcast in one episode of Midnight Blue in which the Wasa Crispbread adaptation appeared. Although sexual motifs were notably absent from the original commercials on which those other adaptations were based (one for General Motors and one for Roy Rogers), both of the commercials did use the words "big," referring respectively to GM's "Big Easy Summer Sale" and Roy Rogers' "New Big Chicken Sandwich." Defendants adapted these commercials so that "big" referred instead to superimposed pictures of male genitalia. The use of nationally broadcast commercials lacking the alleged (sexual) basis for editorializing about the Wasa Crispbread commercial suggests that Midnight Blue may be using the nationally broadcast commercials simply to amuse its viewers or to reduce its costs of producing original programming, rather than to editorialize. In light of these other adaptations, the absence of any objective indicia that the adaptation is an editorial comment, and the fact that "an insignificant public interest aspect of a 'publication' cannot exempt it from the reach of [the privacy statute] where the primary aspect of the product is commercial," Titan Sports, 870 F.2d at 87, I find that there is a factual dispute over whether the adaptation falls within the public interest exception.
I therefore must deny defendants' motion to dismiss this aspect of Ms. Geary's privacy claim.
C. False Light
In addition to their assertion of immunity from the privacy statute, defendants provide an additional ground for dismissing that part of Ms. Geary's privacy claim that asserts a cause of action for placing her in a false light. Defendants are correct that New York does not recognize an independent cause of action for the common law "false light" tort. See Howell v. New York Post, 596 N.Y.S.2d at 354. I thus must dismiss the portion of Ms. Geary's privacy claim that purports to state such a claim.
D. The Defamation Claim
Defendants also argue that Ms. Geary fails to state a claim for defamation. They make two arguments in support of this part of their motion. First, they argue that Ms. Geary has no defamation claim because defendants made no statement about her. In essence, they assert that because they uttered no words about her that could constitute a defamatory statement, Ms. Geary cannot possibly state a claim for defamation. Second, in an argument that parallels their privacy statute argument, they assert that even if the juxtaposition of two pieces of videotape could theoretically be held to be a statement under defamation law, Ms. Geary still has no claim; they argue that no reasonable person would infer from the adaptation that Ms. Geary willingly either participated in, or consented to her appearance in, a pornographic program. I have already addressed at length why I cannot find as a matter of law that no reasonable person could so interpret the adaptation, and for these same reasons, I reject the latter argument in this context.
Regarding defendants' first assertion, that the juxtaposition of two pieces of videotape is not a "statement," numerous decisions have held that the implication derived from photographs can be actionable. See, e.g., Regan v. Sullivan, 557 F.2d 300, 308-09 (2d Cir. 1977); Burton v. Crowell Pub. Co., 82 F.2d 154, 155 (2d Cir. 1936). I see no basis upon which to distinguish the implication made by the juxtaposition of two images in a videotape from that made by one standing image in a photograph, as long as the implication is itself one that a reasonable person would draw and the implication is actionable.
Because I find that the adaptation is subject to a defamatory interpretation -- that Ms. Geary willingly participated in a pornographic video segment -- and that such an interpretation could be one that "brings [her] into hatred, contempt or ridicule by asserting some moral discredit upon [her] part," Schermerhorn v. Rosenberg, 73 A.D.2d 276, 426 N.Y.S.2d 274, 281 (App. Div. 1980) (citation omitted),
I conclude that Ms. Geary has stated a cause of action for defamation.
Whether she will be able to prove that claim is a matter for the jury.
For the reasons discussed above, defendants' motion to dismiss is granted in part and denied in part. The parties shall complete discovery by October 29, 1993 and shall file any dispositive motions by November 19, 1993. If no such motion is filed, they shall submit their joint pre-trial order, memoranda of law, proposed voir dire, and requests to charge no later than December 6, 1993, and be ready for trial on December 7, 1993.
DATED: New York, New York
August 30, 1993
Kimba M. Wood
United States District Judge