Burton v. Crowell Publishing Co.,

82 F.2d 154 (2nd Cir. 1936)

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Nature of the Case

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Facts

Burton (P) posed for a picture with Crowell (D). The picture was to be used in an ad for Camel cigarettes and when it was finished an optical illusion created by the camera cast P in an unfavorable light. P was a widely-known gentleman steeple-chaser, and the text quoted him as declaring that 'Camel' cigarettes 'restored' him after 'a crowded business day.' Two photographs were inserted; the larger, a picture of the plaintiff in riding shirt and breeches, seated apparently outside a paddock with a cigarette in one hand and a cap and whip in the other. This contained the legend, 'Get a lift with a Camel'; neither it nor the photograph, is charged as part of the libel, except as the legend may be read upon the other and offending photograph. That represented him coming from a race to be weighed in; he is carrying his saddle in front of him with his right hand under the pommel and his left under the cantle; the line of the seat is about twelve inches below his waist. Over the pommel hangs a stirrup; over the seat at his middle, a white girth falls loosely in such a way that it seems to be attached to the plaintiff and not to the saddle. P sued for libel. The trial court dismissed the claim; the judge held that the ad did not hold P up to hatred, ridicule or contempt and that in any event he had consented to its use and might not complain. P appealed.