Stephano v. News Group Publications, Inc

474 N.E.2d 580 (1984)

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Nature of the Case

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Facts

P agreed to model for an article on men's fall fashions. The photographic session took place on August 11, 1981. D used two of the photographs to illustrate an article entitled 'Classic Mixes', which appeared under the heading 'Fall Fashions' in the September 7, 1981 issue of New York magazine. Another photograph taken was used, a week earlier, in the August 31, 1981 issue of New York magazine, in a column entitled 'Best Bets.' That column, a regular feature in the magazine, contains information about new and unusual products and services available. One of the items included was a bomber jacket modeled by P. The text above the picture contains information regarding the approximate price of the jacket, the name of the designer, and the names of three stores where the jacket might be purchased. P sued D contending that he agreed to model for only the September 7, 1981 article on Fall Fashions and that D violated his rights by publishing his photograph in the August 31 'Best Bets' column. P claimed that D's conduct violated a common-law right of publicity. In its motion for summary judgment D urged that the complaint should be dismissed because the photograph was not published for trade or advertising purposes within the meaning of section 51 of the Civil Rights Law. The trial court granted summary judgment to D concluding, on the basis of the exhibits submitted, that the bomber jacket item was a 'newsworthy observation' and was not published for advertising or trade purposes within the contemplation of the statute. The Appellate Division reversed finding that factual questions were presented as to whether D had used P's picture for trade purposes and whether the article constituted an advertisement in disguise. D appealed.