USA – NEW YORK Trends and Developments Contributed by: Alan Behr, Phillips Nizer LLP
Roberson v Rochester Folding Box Co The origins of the approach of New York State to pri - vacy can be traced to a case decided a mere dozen years after the publication of that article. In Roberson v Rochester Folding Box Co , the New York Court of Appeals (the highest court in the state) refused – fol - lowing a lengthy analysis – to recognise a common- law right to privacy. The plaintiff was a young woman; a photographic portrait of her was used on the box for Franklin Mills Flour and in an advertisement for the product, along with the slogan “Flour of the Family”. The plaintiff claimed that the use of her likeness to sell goods caused her humiliation and distress. The court expressed concern that recognising such a right would lead to “limitless liability, and that the adoption of such a right would result in a vast amount of litiga - tion, that would border upon the absurd”. The decision in Roberson proved controversial, and was an impetus for the passage by the New York State Legislature during the following year of the first law in the United States enacted to prevent the unauthorised use of an individual’s name or image for commercial purposes. The legislation remains on the books as Civil Rights Law Sections 50 and 51, which jointly created a statutory right of privacy that prohibits the unauthorised commercial use of a person’s name or likeness under certain conditions. It remains at the core of all privacy inquiries in New York State, with there still being no common-law right of privacy rec - ognised by the courts. Murray v New York Magazine Co The most important question, perhaps, is how this might affect the use of photographs in reporting the news, which enjoys strong protections under the First Amendment to the Constitution. The news photogra - phy case of Murray v New York Magazine Co went to the state’s highest court on the basis of a complaint pursuant to Section 51 of the Civil Rights Law. The plaintiff was a man who was not of Irish descent but who liked to dress so characteristically Irish (to wit - ness the New York City St Patrick’s Day parade) that a photograph taken of him without his knowledge was used one year later on a magazine cover to illustrate an article in the New York Magazine entitled “The Last of the Irish Immigrants”, by no less a journalistic talent than the inimitable Jimmy Breslin. The plaintiff had to
concede that the Breslin piece concerned an event of public interest that his photograph was used to illus - trate, and the court granted summary judgment to the defendant. Arrington v New York Times Co In Arrington v New York Times Co (1982), the plaintiff claimed that his image was made the most promi - nent illustration in an article published in The New York Times Magazine entitled “The Black Middle Class: Making it”. He sued under the Civil Rights Act, notably because he objected to being cast as an “exemplar” of a social class and because he did not agree with ideas expressed in the story. The Court of Appeals held that New York courts should not avoid parsing through views on social issues in deciding privacy cases under the Civil Rights Law. Putting that question aside, therefore, it easily applied the “newsworthiness exception” of the Murray case to rule in favour of the defendant. Finger v Omni Public Intl The case of Finger v Omni Public Intl (1990) concerned a photograph of Joseph and Ida Finger and their six children, which had been used to illustrate an article in the magazine Omni on the claimed benefits of caffeine in the demanding and still quite uncertain process of conception by in vitro fertilisation. Even though none of the six Finger children had been the result of in vitro fertilisation (caffeinated or otherwise), again due to the newsworthiness of the piece the court affirmed dismissal of the complaint. Messenger v Gruner + Jahr Printing and Publishing In 2000, the Court of Appeals helpfully summarised and synthesised its holdings in Murray , Arrington and Finger . The case was Messenger v Gruner + Jahr Printing and Publishing . In Messenger , the plaintiff suing under the Civil Rights Law was a 14-year-old aspiring model who posed for a series of magazine photographs. Only later did the model discover that her photograph had been used in the magazine Young and Modern to illustrate an article entitled “Love Cri - sis”, which began with a letter to the editor by a differ - ent 14-year-old who reported getting drunk at a party and then having sex with her 18-year-old boyfriend and two of his boon companions.
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