Beverley v. Choices Women's Medical Center, Inc.
16 Media L. Rep. (BNA) 1159, 532 N.Y.S.2d 400, 141 A.D.2d 89 (1988)
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Rule of Law:
The unauthorized use of a person's name or likeness in a publication constitutes a use for 'advertising purposes' under New York Civil Rights Law § 51 when the publication, taken as a whole, serves as a solicitation for patronage of a collateral product or service, even if it also contains matters of public interest.
Facts:
- Dr. Cordia Beverley, a physician, attended and participated in the Third Regional Conference of Women in Medicine in 1983.
- A photographer hired to publicize the conference took a photograph of Dr. Beverley seated next to another physician, Dr. Lena Edwards.
- Choices Women’s Medical Center Inc. (Choices), a for-profit corporation, published approximately 10,000 promotional calendars for the year 1985, which it treated as an advertising expense.
- Choices purchased the photograph of Dr. Beverley and Dr. Edwards from the conference photographer without Dr. Beverley's consent.
- The photograph was featured for the month of June in the calendar, which also contained Choices' name, logo, address, telephone number, and articles favorably describing its services.
- Choices distributed the calendars primarily at its front desk to patients and to Health Insurance Plan centers from which it received patient referrals.
Procedural Posture:
- Dr. Cordia Beverley (plaintiff) sued Choices Women’s Medical Center Inc. (defendant) in the Supreme Court, Queens County, which is a trial-level court in New York.
- The complaint alleged two causes of action: violation of Civil Rights Law § 51 and defamation.
- The defendant moved for summary judgment to dismiss the entire complaint.
- The plaintiff cross-moved for partial summary judgment on the issue of liability for the Civil Rights Law § 51 claim.
- The trial court granted the plaintiff's cross-motion for partial summary judgment on the § 51 claim.
- The trial court denied summary judgment to both parties on the defamation claim, finding that issues of fact existed.
- The defendant appealed the trial court's order to the appellate court.
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Issue:
Does the nonconsensual use of a physician's photograph in a promotional calendar distributed by a for-profit medical center constitute a use 'for advertising purposes' in violation of New York Civil Rights Law § 51, even if the calendar's content also relates to a matter of public interest?
Opinions:
Majority - Mangano, J. P.
Yes. The nonconsensual use of the photograph in the calendar violates New York Civil Rights Law § 51 because the calendar, taken in its entirety, is an advertisement used as a solicitation for patronage. The calendar was produced by a for-profit business, contained its logo and address, extolled its services, was recorded as an advertising expense, and was distributed to patients and referral sources. This constitutes a use for 'advertising purposes.' The newsworthy or public interest exception does not apply when an image is used in an 'advertisement in disguise' for a collateral product or service; otherwise, the exception would create a loophole that vitiates the statute's protection against commercial exploitation.
Concurring in part and dissenting in part - Brown, J.
No. The use of the plaintiff's photograph does not violate Civil Rights Law § 51 because it falls within the well-recognized exception for matters of public interest. The calendar's overall theme relates to women's rights and achievements, which is a matter of public interest, and the plaintiff's photo is consistent with that theme. For the use to be actionable, there must be a direct connection and exploitation of the person's likeness for the commercial message. Here, the commercial and promotional material was sufficiently separate from the public interest aspect of the calendar, and there was no effort to capitalize on the plaintiff's personality for the clinic's commercial benefit.
Analysis:
This decision reinforces a strict interpretation of New York's statutory right to privacy against commercial appropriation. It clarifies that the newsworthy or 'public interest' exception cannot be used as a shield when the underlying purpose of the publication is commercial solicitation. The ruling establishes that courts must look at the publication 'in its entirety' to determine its primary purpose, effectively preventing businesses from cloaking advertisements in the guise of public interest commentary to exploit an individual's likeness without consent. This strengthens protections for individuals, including public figures, against unauthorized commercial use of their image.
