to whether Finger overruled the Spahn-Fils-Aime line of cases.
Defendants argue that Finger must have overruled Spahn, at least as applied in circumstances involving the use of photographs for illustrative purposes, because the plaintiff in Finger argued that the article falsely implied that the children had been conceived by new fertilization techniques,
yet the Court of Appeals, in rejecting the claim, summarized the newsworthiness exception without even referring to the issue of fictionalization. Were there no alternate explanation for the Court of Appeals' decision, the argument might be sufficiently persuasive to warrant dismissal. But that is not the case.
The Court of Appeals in Finger very well may have concluded, as the defendant argued,
that the use of the photograph in that case was not substantially fictionalized, in which case there would have been no need to address the issue of fictionalization. Or it may have accepted the defendant's contention
that the implication allegedly created by the use of the photograph there at issue was not offensive and therefore not actionable -- unlike the implication of participation in child pornography at issue in Fils-Aime.
In view of the alternative explanations for the result in Finger, defendants' argument that Spahn and its progeny no longer are good law is not persuasive.
Certainly it is not sufficiently compelling to convince this Court that Lerman, a Second Circuit case closely on point, should be disregarded in favor of an uncertain projection as to the future development of New York law. Accordingly, the motion advances no sufficient basis for dismissal of the claim under Sections 50 and 51 of the New York Civil Rights Law.
There remains one final point. This motion was briefed and argued by both sides on the premise that the claim based on alleged commercial or trade use of Messenger's photographs is governed by New York law. Nevertheless, after the motion to dismiss was argued and a decision imminent, defendants submitted a letter suggesting that the Court " sua sponte " apply Florida law, rather than Sections 50 and 51, to plaintiff's claim and dismiss on the theories that Florida law exempts from liability publications on matters of public interest regardless of how fictional the use of a plaintiff's name or likeness may be or, alternatively, that the claim is barred by Florida's single cause of action rule. The argument is without merit.
To begin with, the Court takes exception to the timing of defendants' contention. A court need not consider an argument first advanced in a reply brief.
A fortiori, it need not consider an argument first made at an even later point. Nevertheless, it is appropriate to reach the merits here because defendants' failure to raise these issues in moving to dismiss would not preclude them from raising them at trial.
The issues therefore must be confronted sooner or later.
Defendants' first argument is unpersuasive. The Florida statute relied upon
is quite similar to Sections 50 and 51 of the New York statute. It differs in that it codifies the newsworthiness exception that in New York is a product of case law by specifically exempting from liability a publication that is "part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes."
But the difference is one of form alone. Like the newsworthiness exception in New York law, this provision of the Florida statute protects against "an unconstitutional 'chilling' effect upon the First Amendment freedoms of speech and press."
Both therefore exist only to serve the goal of unfettered discussion of matters of legitimate public interest, not to confer a license to engage in the culpable promulgation of falsehood.
Thus, while no Florida court appears to have considered the issue, this Court holds that Section 540.08(3) of the Florida Statutes does not foreclose liability for culpably false or fictionalized publications, even on matters of public interest. While the Florida legislature quite appropriately has recognized the need for "breathing space" for publications on matters of public concern, its goal in doing so is fully achieved by precluding liability for innocent errors. There is no reason to suppose that it intended to immunize deliberate, reckless and irresponsible falsehood.
Nor does the single publication/single cause of action rule under Florida law present a barrier to plaintiff's commercial misappropriation claim. The rule is designed to prevent plaintiffs from circumventing a valid defense to defamation by recasting essentially the same facts into several different causes of action all meant to compensate for the same harm.
Here, however, the gravamen of plaintiff's commercial misappropriation claim goes well beyond the injury to reputation that lies at the heart of her defamation claim.
Consequently, the defense to plaintiff's defamation claim -- her failure to provide notice before filing suit as required by Florida law -- does not similarly bar her claim based on the alleged commercial or trade use of her photographs.
Defendants' motion, to the extent not previously disposed of, is denied.
Dated: February 23, 1998
Lewis A. Kaplan
United States District Judge