Grant v. Esquire, Inc.
367 F.Supp. 876 (1973)
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Rule of Law:
The First Amendment does not protect a publisher's unauthorized use of a celebrity's image when that image is altered and used in a publication primarily for purposes of trade, such as attracting attention, rather than as part of a legitimate news report or commentary about the celebrity.
Facts:
- In 1946, Esquire magazine published an article about the clothing preferences of six Hollywood stars, including Cary Grant.
- With Grant's consent, the article featured a posed photograph of him, accompanied by a caption detailing his taste in suits, shirts, and neckwear.
- In 1971, Esquire published a new article on men's fashion, which included a modified version of the 1946 photograph.
- In the 1971 version, Grant's head from the original photo was superimposed onto the body of a model wearing a modern cardigan sweater-jacket.
- The new caption noted the 'trickery' and identified the sweater-coat by brand (Forum) and price ($22.50).
- The 1971 article did not provide any new information about Cary Grant himself, other than noting his prior appearance in the magazine.
- Cary Grant did not consent to the 1971 republication and alteration of his photograph.
Procedural Posture:
- Cary Grant (plaintiff) filed a diversity action suit against Esquire, Inc. and Forum (defendants) in the United States District Court for the Southern District of New York (a federal trial court).
- The complaint alleged three causes of action: libel, invasion of statutory right of privacy, and violation of the right of publicity.
- The defendants and the plaintiff filed cross-motions for summary judgment.
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Issue:
Does the unauthorized publication of a celebrity's photograph, altered by superimposing his head onto a model's body to illustrate a fashion article, constitute a violation of the celebrity's statutory right of privacy and common law right of publicity for 'purposes of trade' that is not protected by the First Amendment?
Opinions:
Majority - Whitman Knapp
Yes, such a use may violate a celebrity's right of privacy and publicity and is not protected by the First Amendment. While the libel claim fails because the article did not damage Cary Grant's reputation, his claim under New York Civil Rights Law § 51 for use of his image 'for the purposes of trade' and his common law 'right of publicity' claim may proceed. The court distinguished between a protected, newsworthy use of an image and an unprotected commercial appropriation. In the 1946 article, the photograph was reasonably related to a newsworthy story about Grant. In the 1971 article, Grant's face served no informational function about him but was used merely to attract attention, thereby appropriating the publicity value of his identity. This appropriation of a celebrity's services as an unpaid professional model is not shielded by the First Amendment, which does not give publishers the right to trade on a celebrity's fame without compensation, just as it does not allow a painter to take pigments without paying for them.
Analysis:
This case is significant for reinforcing the distinction between constitutionally protected editorial content and unprotected commercial appropriation of a celebrity's identity. It solidifies the 'right of publicity' as a distinct and compensable property right, separate from the traditional privacy right against injured feelings. The decision establishes that even within a non-advertising, editorial context, a celebrity's likeness cannot be used simply as a commercial tool to attract readers without consent. This ruling provided a stronger basis for celebrities to control and profit from their public image, influencing future litigation involving look-alikes, sound-alikes, and other forms of identity appropriation.
