[that] cannot reasonably be interpreted as stating actual facts about the individual . . . are protected by the First Amendment").
Here, the use of the Names in Crazyman No. 3 is not susceptible of a defamatory meaning, because no reasonable reader could understand the comic book as describing actual facts about Netzer or actual events in which he participated. Pring, 695 F.2d at 442. Crazyman is patently a work of fantasy, involving outlandish plot scenarios and characters with impossible powers. No reasonable reader of such a publication would take the events described as factual events. In a related context, a New York court has observed that cartoons, which are similar to the comic book at issue here, "cannot reasonably be interpreted as 'literally depicting an actual event or situation'." Velez v. VV Publishing Corp., 135 A.D.2d 47, 52, 524 N.Y.S.2d 186, 189 (1st Dept. 1988) (rejecting plaintiff's invasion of privacy claim because cartoon balloon in advertisement could not be taken as literal endorsement of publication in violation of N.Y. Civil Rights L. §§ 50-51) (citations omitted). Moreover, Crazyman includes a disclaimer stating that "any similarities to real people or places in fiction and semi-fiction is (sic) purely coincidental."
Given the fantastic events and characters depicted in Crazyman, no average reader could reasonably conclude that the comic book was somehow a roman a clef that actually charged Netzer with terrorist activities. Thus, the use of the Names could not subject him to "public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace," and is therefore not susceptible of a defamatory meaning.
Netzer contends that some readers in the comic book world who knew of his ethnic and religious background and extended sojourn in the Middle East could conclude that the naming of a fictional terrorist after him was meant as a factual assertion that he was indeed involved in terrorist activities. However, the fact that such "insiders" in the comic book industry might know about Netzer's time in the Middle East is insufficient to confer defamatory meaning on the publication. Although some knowledge of Netzer's biography would make it more likely that a reader would conclude that the statement was "of or concerning Netzer," it would not make such a reader more likely to take the content to be factual. Moreover, there is no evidence in the record that any reader of Crazyman No. 3, insider or otherwise, interpreted it as an assertion that Netzer, as a matter of fact, is or was a terrorist or criminal of any sort.
Accordingly, Netzer's libel claim will be dismissed.
B. Privacy Claims
Netzer also claims that his right to privacy has been violated by the use of his name and likeness in Crazyman No. 3. "The right to privacy in New York is derived solely from Section 50 and 51 of the New York Civil Rights Law. There is no common law right of privacy in New York." De Gregorio v. CBS, Inc., 123 Misc. 2d 491, 492, 473 N.Y.S.2d 922, 923 (Sup. Ct. N.Y. Cty 1984).
Section 50 of the Civil Rights Law makes it a misdemeanor to use "for advertising purposes, or for the purposes of trade, the name portrait or picture of any living person without having first obtained the written consent of such person." Section 51 provides, in pertinent part: "Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as [provided in § 50] may maintain an equitable action . . . to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use . . ."
Netzer contends that the use of the Names in Crazyman No.3 without first obtaining his written consent violated Section 51.
However, not every unauthorized use of an individual's name in connection with trade or advertising violates the statute. Damron v. Doubleday, Doran & Co., 133 Misc. 302, 303, 231 N.Y.S. 444, 445 (Sup. Ct. N.Y. Cty 1928), aff'd, 226 A.D. 796, 234 N.Y.S. 773 (1st Dept. 1929), and aff'd 226 A.D. 796, 234 N.Y.S. 774 (1st Dept. 1929). In determining whether a name or likeness is used primarily for advertising or trade in violation of the statute, a court will weigh the circumstances of the use, its extent or degree, and the character of the use. Id. Courts in New York are reluctant to impose liability under §§ 50-51 for "incidental" use of a person's name or image because of the danger of "imposing an uncalled-for burden and hazard" on publishers. Id. See also Preston v. Martin Bregman Productions, Inc., 765 F. Supp. 116, 120 (S.D.N.Y. 1991).
Thus, the New York courts have recognized that "incidental use" of a person's name or photograph, even when it is unauthorized and fictionalized, falls outside the prohibition of the statute. See Ladany v. William Morrow & Co., Inc., 465 F. Supp. 870, 880 (S.D.N.Y. 1978) (collecting New York cases). This incidental use exemption protects the writers and publishers of books and other materials from liability for "isolated," "fleeting," or "de minimis" uses of a person's name or image. See University of Notre Dame Du Lac v. Twentieth Century Fox, 22 A.D.2d 452, 256 N.Y.S.2d 301, 304 (1st Dept.), aff'd 15 N.Y.2d 940, 207 N.E.2d 508, 259 N.Y.S.2d 832 (1965) ("isolated references . . . of . . . fleeting and incidental nature" do not offend Civil Rights Law); Stillman v. Paramount Pictures Corp., 2 A.D.2d 18, 153 N.Y.S.2d 190, 191 (1st Dept. 1956), aff'd 5 N.Y.2d 994, 157 N.E.2d 728, 184 N.Y.S.2d 856 (1959) (§§ 50-51 "do not prohibit the incidental, momentary and isolated use" of a person's name in a fictional movie); Man v. Warner Bros., Inc., 317 F. Supp. 50, 53 (S.D.N.Y. 1970) (incidental use of forty-five seconds of plaintiff's performance in film is "de minimis," and not actionable).
"Whether a use falls within the incidental use exception 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." Preston, 765 F. Supp. 116 at 119. The statute requires a relatively "direct and substantial connection between the appearance of the plaintiff's name or likeness and the main purpose and subject of the work" before liability may be established. Id.
Here, the isolated use of Netzer's previous name and his current surname as aliases for the terrorist character in Crazyman is insufficient to establish liability. The Names appear in only one of 116 panels in a twenty-four page comic book. Such isolated use of a name is generally not actionable. See University of Notre Dame Du Lac, 256 N.Y.S.2d at 303-04 (plaintiff mentioned three times in 143 page book, not actionable); Ladany, 465 F. Supp. at 881 (references to plaintiff on 13 of 458 pages not actionable); Meeropol v. Nizer, 381 F. Supp. 29, 37-38 (S.D.N.Y. 1974) (plaintiffs mentioned 29 times in book not actionable), aff'd on other grounds, 560 F.2d 1061 (2d Cir. 1977); Damron, 231 N.Y.S. at 446 (single use of name in book does not violate statute).
Moreover, the isolated use of the Names has no "direct and substantial connection" to the main subject or purpose of the comic book. The aliases appear incidentally and are inconsequential not only to the overall plot of the comic book, but also to the panel in which they appear. From the perspective of the work taken as a whole, the significant information in the panel that includes the Names is that the terrorist had associated with a primary villain in the Crazyman series.
Although the image of the terrorist appears on five pages of the comic book, no reasonable juror could conclude that the terrorist depicted bears any physical resemblance to Netzer. In fact, the character was drawn by a free-lance artist who did not know Netzer. Absent any physical resemblance to Netzer, it cannot be said that the panels in which he is not identified make use of his "likeness" in contravention of the statute.
Accordingly, the invasion of privacy claim will be dismissed.
C. Intentional Infliction of Emotional Distress
Netzer also alleges that the Defendants intentionally inflicted emotional distress upon him by using the Names in Crazyman No. 3.
To establish a claim for intentional infliction of emotional distress under New York law, a plaintiff must prove: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. See Howell v. New York Post Co., 81 N.Y.2d 115, 121, 612 N.E.2d 699, 702, 596 N.Y.S.2d 350 (1993); see also Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996).
Liability for infliction of emotional distress will not attach unless the defendant's conduct was "so shocking and outrageous as to exceed all reasonable bounds of decency," Fischer v. Maloney, 43 N.Y.2d 553, 557, 373 N.E.2d 1215, 1216-17, 402 N.Y.S.2d 991 (1978), or be "utterly intolerable in a civilized" society. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 448 N.E.2d 86, 90, 461 N.Y.S.2d 232 (1983). The outrageousness element is susceptible of determination as a matter of law. Howell, 81 N.Y.2d 115 at 121, 596 N.Y.S.2d 350, 612 N.E.2d 699.
The standard of outrageousness is an objective one; even if the defendant is aware of some peculiar susceptibility of the plaintiff to emotional distress, the conduct must still be objectively outrageous to be actionable. See Nestlerode v. Federal Ins. Co., 66 A.D.2d 504, 507, 414 N.Y.S.2d 398 (4th Dept. 1974). In Howell, the Court of Appeals noted that the requirement of extreme and outrageous conduct is so "rigorous and difficult to satisfy" that "of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous." Howell, 81 N.Y.2d 115 at 122, 596 N.Y.S.2d 350, 612 N.E.2d 699.
Defendants contend that the conduct attributed to them is not sufficiently "extreme and outrageous" to make out an action for intentional infliction of emotional distress.
Determining whether conduct is so outrageous as to "exceed all reasonable bounds of decency" or be "utterly intolerable in a civilized society" is a fact-specific inquiry. Some decisions have taken a restrictive approach to this state law tort. See Leibowitz v. Bank Leumi Trust Co. of N.Y., 152 A.D.2d 169, 182, 548 N.Y.S.2d 513 (2d Dept. 1989) (use of anti-Semitic slurs not sufficiently outrageous); Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 262-63, 633 N.Y.S.2d 106 (1st Dept. 1995) (false accusation of using anti-Semitic slurs not sufficiently outrageous); Andrews v. Bruk, 220 A.D.2d 376, 631 N.Y.S.2d 771 (2d Dept. 1995) (rejecting claim based on use of medical records to allege extramarital affair); Coliniatis v. Dimas, 848 F. Supp. 462, 470-71 (S.D.N.Y. 1994) (allegations of criminal and fraudulent conduct insufficient to constitute outrageous conduct). These courts have been reluctant to allow recovery "absent a 'deliberate and malicious campaign of harassment or intimidation.'" Herlihy, 214 A.D.2d at 263, quoting Nader v. General Motors Corp., 25 N.Y.2d 560, 569, 255 N.E.2d 765, 307 N.Y.S.2d 647 (1970).
Other courts, however, have been more lenient in finding outrageousness. See Flatley v. Hartmann, 138 A.D.2d 345, 346, 525 N.Y.S.2d 637, 638 (2d Dept 1988) ("hang-up" telephone calls sufficient); Halio v. Lurie, 15 A.D.2d 62, 67, 222 N.Y.S.2d 759, 764 (2d Dept. 1961) (taunting letter from former boyfriend, boasting of marriage). These cases, however, have been decided at the pleadings stage.
Here, the use of the Names in connection with a clearly fictional character in a comic book is not objectively so outrageous as to exceed all possible bounds of decency. The use of the Names may have been calculated to hurt Netzer's feelings, and there is some factual basis for concluding that the Defendants used Netzer's names in retaliation for Netzer's assertion of co-ownership in Ms. Mystic. However, these motivations do not make the misconduct itself objectively outrageous. Upon consideration of the affidavits, depositions and other evidence available on this motion, no reasonable jury could conclude that the single use of Netzer's name in Crazyman No. 3 amounts to a deliberate or malicious campaign to harass or intimidate.
Accordingly, Defendants' motion to dismiss the intentional infliction of emotional distress claim will be granted.
For the reasons set forth above, the Defendants' motions are hereby granted in their entirety and Netzer's complaint is dismissed.
It is so ordered.
New York, N. Y.
April 7, 1997
ROBERT W. SWEET