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Lombardo v. Doyle

Appellate Division of the Supreme Court of the State of New York
58 A.D.2d 620 (1977)
ELI5:

Rule of Law:

New York's statutory right of privacy under Civil Rights Law §§ 50-51 is strictly construed to protect only a person's 'name, portrait, or picture' and does not extend to the imitation of one's public persona. However, a celebrity has a separate common law property right in their public personality, which may be protected from commercial appropriation, especially when the imitation is unfair or results in public deception.


Facts:

  • Guy Lombardo was a famous band leader who had cultivated a public personality as 'Mr. New Year's Eve' over a 40-year career.
  • An advertising agency and an automobile manufacturer (defendants) entered into negotiations with Lombardo for him to appear in a televised commercial.
  • The proposed commercial involved Lombardo and his orchestra at a New Year's Eve party playing 'Auld Lang Syne' to promote the manufacturer's cars.
  • The negotiations between Lombardo and the defendants ultimately failed to produce an agreement.
  • After negotiations broke down, the defendants produced and aired a commercial featuring a New Year's Eve party scene with balloons, party hats, and the song 'Auld Lang Syne'.
  • The commercial featured an actor who did not physically resemble Lombardo, conducting a band and imitating Lombardo's distinct gestures and musical style.
  • The commercial did not use Guy Lombardo's name.

Procedural Posture:

  • Guy Lombardo (plaintiff) filed a lawsuit in the Supreme Court, Nassau County (a New York trial court) against the defendants, an advertising agency and an automobile manufacturer.
  • The defendants filed a motion to dismiss Lombardo's second cause of action (statutory invasion of privacy) and third cause of action (common law appropriation of public personality).
  • The trial court denied the defendants' motion to dismiss.
  • The defendants, as appellants, appealed the trial court's order to the Supreme Court, Appellate Division (an intermediate appellate court), with Guy Lombardo as the respondent.

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Issue:

Does the unauthorized commercial imitation of a celebrity's well-known public persona, without using their actual name, portrait, or picture, state a valid cause of action under either New York's statutory right of privacy or the common law right of publicity?


Opinions:

Majority - Per Curiam (Hopkins, J. P., Margett and Shapiro, JJ.)

No as to the statutory right of privacy; Yes as to the common law right of publicity. The unauthorized commercial imitation of a celebrity's persona does not state a claim under New York's Civil Rights Law, which is strictly limited to the use of a 'name, portrait, or picture.' However, it may state a valid claim for appropriation of the common law right of publicity. The court reasoned that the privacy statute must be strictly construed and refused to equate 'reputation' with 'name' or 'mental image' with 'picture.' In contrast, the court recognized that a celebrity has a legitimate proprietary interest in their public personality. Lombardo had invested decades in creating his 'Mr. New Year's Eve' identity, giving it marketable value. The court held that the defendants' combination of elements strongly associated with Lombardo could constitute an unfair exploitation of his public personality and a deception of the public, thus stating a valid cause of action under the common law.


Concurring in part and dissenting in part - Titone and Suozzi, JJ.

Yes as to both the statutory right of privacy and the common law right of publicity. While agreeing with the majority that the common law claim is valid, the dissent argues that the statutory claim should also survive a motion to dismiss. The dissent contends that the Civil Rights Law's protection of a 'picture' should be interpreted broadly to mean not just a photograph but 'any representation of such person,' as established in precedents like Binns v. Vitagraph Co. The dissent argues that the core question is whether there has been an appropriation of the plaintiff's identity. Therefore, the issue of whether the commercial's 'likeness and representation' is sufficient to identify Lombardo should be a question of fact for a jury to decide, not a matter of law to be dismissed by a court.



Analysis:

This case solidifies the dual-track system for personality rights in New York, establishing a clear distinction between the narrow statutory right of privacy and the more flexible common law right of publicity. By strictly interpreting the statute while recognizing a broader common law claim, the court allows celebrities to protect intangible aspects of their identity, such as performance style or persona, from commercial imitation. This decision provides a crucial avenue for relief in cases of 'sound-alike' or 'look-alike' advertising that do not use the celebrity's actual name or image, grounding the common law claim in the potential for public deception and unfair exploitation of a cultivated, valuable personality.

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