Beverley v. Choices Women's Medical Center, Inc.
78 N.Y.2d 745, 19 Media L. Rep. (BNA) 1724, 587 N.E.2d 275 (1991)
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Rule of Law:
Use of a person's name or picture in a publication that is, on its face, an advertisement for a for-profit business constitutes 'advertising purposes' under Civil Rights Law § 51, even if the publication also contains matters of public interest, and such commercial use cannot be shielded by public interest or public figure exceptions.
Facts:
- Choices Women’s Medical Center, Inc. (Choices) is a for-profit corporation operating a medical facility that provides family planning services.
- In 1984, Choices produced 10,000 copies of a 1985 calendar titled 'Women — Choosing to Make a Difference' and distributed them free of charge to its patients, media organizations, women’s organizations, and other medical facilities.
- Choices budgeted and paid approximately $7,000 for printing its calendars as an 'advertising and promotion' expense, with each page prominently displaying Choices’ name, logo, address, telephone number, and laudatory descriptions of its medical services.
- The calendar featured photos illustrating its theme, including a joint photo of Dr. Cordia Beverley and Dr. Lena Edwards used for the month of June 1985, taken at the 1983 Regional Conference of Women in Medicine.
- The caption under the photo in the calendar identified Dr. Beverley by name and professional title, noting her presence with Dr. Edwards.
- Choices purchased the photo from a photographer but concedes it did not seek or obtain Dr. Beverley’s consent to use her photo, name, or professional title in its calendar.
- Dr. Beverley is a Board certified physician specializing in internal medicine and gastroenterology and has never had any association with Choices.
Procedural Posture:
- Dr. Beverley sued Choices in Supreme Court (trial court) for damages and injunctive relief, alleging invasion of privacy under Civil Rights Law §§ 50 and 51 and defamation.
- Choices moved to dismiss the complaint or for summary judgment, and Dr. Beverley cross-moved for summary judgment on her statutory privacy claim.
- The Supreme Court granted Dr. Beverley’s motion for summary judgment on the privacy claim and denied Choices’ motion to dismiss the defamation claim.
- The Appellate Division (intermediate appellate court) modified the Supreme Court’s order by dismissing the defamation claim and remitted the case for a trial solely on damages for the privacy claim, concluding that the calendar was used 'for advertising purposes' and not insulated by public interest.
- After a trial on damages only, the Supreme Court awarded Dr. Beverley $50,000 in compensatory and $25,000 in punitive damages.
- The Appellate Division affirmed the judgment.
- Choices (appellant) moved for leave to appeal to the New York Court of Appeals.
- The New York Court of Appeals granted Choices’ motion for leave to appeal.
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Issue:
Does a for-profit medical center's unauthorized use of a physician's photo, name, and professional title in a promotional calendar, which also features themes of public interest, constitute use 'for advertising purposes' under Civil Rights Law § 51, and are such uses exempt under the public interest or public figure doctrines?
Opinions:
Majority - Bellacosa, J.
Yes, a for-profit medical center's unauthorized use of a physician's photo, name, and professional title in a promotional calendar constitutes use 'for advertising purposes' under Civil Rights Law § 51, and such uses are not exempt under the public interest or public figure doctrines. Civil Rights Law § 51 prohibits using a living person's name or picture for 'advertising purposes, or for the purposes of trade' without written consent. The Court liberally construes 'advertising purposes,' defining it as appearing in a publication distributed as part of an advertisement or solicitation for patronage of a particular product or service, when taken in its entirety. Choices’ calendar met this test because of the pervasive placement of its commercial information, wide distribution, targeted audience, and glowing endorsements, making it 'quintessential advertising material.' Dr. Beverley's photo, name, and professional title were central to this commercial message, as she was identified as a medical doctor and Choices promoted medical services. The newsworthiness/public interest exception does not apply to insulate Choices because it is not a media enterprise, and its calendar was 'on its face' an advertisement, not an 'advertisement in disguise.' A commercial advertiser cannot override statutory privacy protection by merely 'wrapping its advertising message in the cloak of public interest.' Similarly, the public figure exception, applicable to truthful reporting of current events, does not apply here; this was a 'deliberate later publication of a no longer current news item in an individual firm’s advertising literature,' violating Dr. Beverley’s right not to be associated with an enterprise for its benefit without her consent. Therefore, the damage award and punitive damages were supported and correctly affirmed.
Analysis:
This case significantly clarifies the scope of privacy protection under New York Civil Rights Law §§ 50 and 51, particularly against the commercial exploitation of an individual's likeness. It establishes that a publication's direct commercial intent and the defendant's for-profit status are key in determining 'advertising purposes,' rather than allowing advertisers to obscure commercial motives with public interest themes. The decision strictly limits the application of newsworthiness and public figure exceptions to non-media entities and direct advertisements, preventing companies from circumventing privacy rights under the guise of public discourse. This bolsters individuals' control over their image and identity in commercial contexts and sets a precedent for how courts should evaluate alleged commercial appropriations.
