Titan Sports, Inc. v. Comics World Corp.
16 Media L. Rep. (BNA) 1408, 870 F.2d 85, 10 U.S.P.Q. 2d (BNA) 1311 (1989)
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Rule of Law:
An item included within a newsworthy publication may constitute a non-consensual use of a person's likeness for 'purposes of trade' under NY Civil Rights Law § 51 if its public interest aspect is merely incidental to its primary commercial purpose.
Facts:
- Titan Sports, Inc. ('Titan') promotes World Wrestling Federation ('WWF') events and owns all rights to the names and likenesses of its affiliated wrestlers, including Hulk Hogan.
- Comics World Corporation ('Comics World') produced and sold publications such as 'Wrestling All-Stars Poster Magazine'.
- These publications contained numerous oversized, full-color photographs of Titan's wrestlers.
- The photographs were folded and stapled into the center of the publications in a manner that allowed them to be unstapled and removed.
- The covers of Comics World's publications featured blurbs such as '10 FULL COLOR WRESTLING POSTERS! HUGE SIZE!'.
- Neither Titan nor the individual wrestlers consented to Comics World's publication of their photographs.
Procedural Posture:
- Titan Sports, Inc. sued Comics World Corporation in the U.S. District Court for the Southern District of New York, alleging a violation of New York Civil Rights Law § 51.
- By agreement, all other claims were dismissed.
- The district court granted summary judgment in favor of Comics World, ruling that its product was a 'bona fide newsstand publication' protected by the First Amendment.
- Titan Sports, Inc., as the appellant, appealed the judgment to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does the inclusion of oversized, detachable photographs of professional wrestlers, marketed as posters, within a magazine create a genuine issue of material fact as to whether the photographs were used 'for the purposes of trade' in violation of New York Civil Rights Law § 51?
Opinions:
Majority - Altimari, Circuit Judge
Yes. The inclusion of oversized, detachable photographs marketed as posters within a magazine creates a genuine issue of material fact as to whether they were used for 'purposes of trade.' A publication's status as a 'bona fide newsstand publication' does not automatically exempt all of its contents from New York Civil Rights Law § 51. While the First Amendment protects newsworthy publications, that protection does not extend to the commercialization of a personality through a form of treatment distinct from the dissemination of news, especially where the public interest aspect is merely incidental to the commercial purpose. A fact-finder must determine if these photographs, marketed and designed as posters, were included primarily for their value as commercial products rather than as part of a newsworthy article.
Analysis:
This decision clarifies the scope of the 'newsworthiness' exception to New York's right of publicity statute. It establishes that courts must look beyond the form of the overall product (a magazine) and analyze the substance and purpose of individual components within it. By creating a multi-factor test, the court provides a framework for future cases to distinguish between legitimate editorial content and commercial products disguised as editorial content. This ruling strengthens the right of publicity for celebrities by preventing publishers from circumventing the law by simply packaging a commercial item, like a poster, within a newsworthy publication.
