stating that phrases such as “advertising purposes” and for the “purposes of trade ... must be construed narrowly and not used to curtail the right of free speech, or free press, or to shut off the publication of matters newsworthy or of public interest, or to prevent comment on matters in which the public has an interest or the right to be informed”
How later courts described this case
- stating that phrases such as “advertising purposes” and for the “purposes of trade ... must be construed narrowly and not used to curtail the right of free speech, or free press, or to shut off the publication of matters newsworthy or of public interest, or to prevent comment on matters in which the public has an interest or the right to be informed”
- finding that use of Plaintiff’s name on book jacket to describe author’s writing style was not prohibited by the statute and noting that a contrary holding “would constitute an impermissible restriction on what we deem to be the right of a publisher in informing the public of the nature of his book and comparing it with the works of other authors”
- use of quotation from book review comparing book to work of renowned author on book jacket was incidental use because purpose of use was to inform public of nature of book being sold
Written by the judges who cited it.
The opinion
Steuer, J. (dissenting).
Defendant published a book by Eugene Vale. Prior to the publication of the edition in question the book had been reviewed in the San Francisco Examiner. In the course of the review the reviewer compared the underlying style of the author with that of the plaintiff, a well-known writer, finding them in some respects similar. On the cover' of the edition in question defendant printed an excerpt.from this review in which the plaintiff’s name was mentioned. While the matter is an excerpt rather than a full quotation, there is no question but that it states the reviewer’s opinion accurately and gives the source of the quotation.
Plaintiff has brought suit under sections 50 and 51 of the Civil Bights Law. Defendant pleaded five separate complete defenses and one partial defense. Plaintiff moved to dismiss those defenses. The defendant, in resisting this application, argued first that a demurrer searches the record and that such a search would reveal that the complaint fails to state a cause of action. The validity of the defenses Was also asserted. Special Term upheld the complaint and dismissed the defenses.
'Section 51 gives any person whose name or portrait is used for advertising or purposes of trade without his written consent a cause of action for an injunction and for such damages as he may have sustained from the use and for exemplary damages. The act contains certain exceptions not pertinent *413 here. There can be no doubt that all the elements stated by the statute as requisite for relief are alleged. The plaintiff’s name was used and it was without her consent. There can be little question that the use was for advertising or purposes of trade. Attention of a prospective buyer was called to the fact that a book reviewer considered the author’s style similar to the plaintiff’s, with the incontestable implication that one who had found plaintiff’s style appealing would obtain similar satisfaction from the book on sale. If this is not advertising, it would be hard to give a satisfactory definition of what is.
I do not understand that any of the above is a matter of dispute. The argument is that the interpretation of the statute has circumscribed its effect so that not every breach of its literal wording gives rise to a cause of action. And no one can conscientiously maintain the contrary. However, the exception relied on does not extend to the facts of this case. Nor, in my opinion, does it indicate that a parity of reasoning mandates, or even warrants, an extension to include them. The exception may be styled that of incidental use by news media. Where a newsreel rightfully contains the photograph of a person, published with or without his consent, an exhibitor of that newsreel may exhibit that photograph in connection with the showing of the newsreel (Humiston v. Universal Film Mfg. Co., 189 App. Div. 467 ). A magazine which has rightfully published the picture of a person may publish or cause to be published in other media a reproduction of that picture, not only to advertise the article to which the' picture was related but the magazine itself (Booth v. Curtis Pub. Co., 15 A D 2d 343). This is the incidental use explained in Booth (supra, p. 347). It should be, though apparently it is not, obvious that here we have no incidental use. Defendant’s employment of plaintiff’s name is not to advertise the medium which originally included plaintiff’s name. It is not incidental to that publication. And the fact that the original publication was a legitimate use of the plaintiff’s name cannot affect the situation. It is conclusively established that the use of a person’s n'ame for advertising or purposes of trade is not justified merely because the means employed is a quotation from a permitted use of that name (Flores v. Mosler Safe Co., 7 N Y 2d 276).
Concededly book publishing, though a business, stands on a somewhat different plane than many other businesses in that freedom of the press is often involved. On occasion what might, in connection with other trades, constitute actionable conduct under the Civil Rights Law must be made to yield to con *414 siderations of freedom of the press. And exemption on this ground extends to advertising as well as content (see Spahn v. Messner, Inc., 23 A D 2d 216, 221; Breitel, J.). This is not to say that every use by a publisher is to be so considered. The test is the nature of the material advertised—whether factual, that is historical, news, or the like, or not. No privilege to use the name or portrait of a person without consent applies to a work of fiction. ‘ ‘ If the publication, however, by intention, purport, or format, is neither factual nor historical, the statute applies, and if the subject is a living person his written consent must be obtained.” (Spahn v. Messner, Inc., supra, p. 222.) A fortiori, where the content is not exempted the advertising is not.
A rather ingenious, though patently fallacious, poin^ has been inferenti'ally raised—that though the content of the-book that is being advertised is not informative, the advertising-complained of is. It informs the prospective purchaser of the kind of literary style he may expect. All advertising shares this status.
In short, the publication which irrefutably contravenes the statute comes neither within any expressed limitation to its extent nor within any that might by logical extension be made to apply. Nor do constitutional considerations. invoke any exception. And it is well to note that we have held that such extensions should not be facilely extended by judicial process, such action being the province of the Legislature (Spahn, supra, p. 221). One visceral appeal frequently presented in cases of this character is that the plaintiff could scarcely survive in her profession without the benefits of publicity and should not be heard to complain. The argument has validity on the issue of damages, but not otherwise.
The majority, quite obviously and properly, does not find it necessary to consider the affirmative defenses. In the view I take, their merit or lack of it must be considered. The first defense is that hardy anachronism that the complaint does not state a cause of action. No discussion is required. The second, third and fourth defenses are in reality arguments, discussed above, explaining why the complaint does not state a cause of action. For the same reasons that they do not prevail to bring about a dismissal, they are unavailing as defenses. The fifth defense is also the first partial defense. It pleads a custom in the trade to publish critiques of the book advertised and, if such a review refers to an author other than the writer of the book being advertised, to publish his name. It is elementary that a custom cannot justify what *415 a statute forbids. However, following a custom may be a good reason to relieve against punitive damages. The second partial defense pleads a publication without malice. This also may serve in the same connection.
The order should be modified to allow the fifth defense to stand as a partial defense and to reinstate the second partial defense, and, as so modified, affirmed.
Oapozzoli, J. P., McGtverd and Nudez, JJ., concur with Rabid, J.; Steuer, J., dissents in opinion.
Order entered on September 6, 1968, reversed, on the law, with $50 costs and disbursements to the appellant, and the complaint dismissed. The 'Clerk is directed to enter judgment in favor of the defendant dismissing the complaint, with costs.