The opinion
Asch, J. (dissenting).
In July of 1981, Henry Post, a contributing editor of New York Magazine, published by defendant, began to work on a lead article concerning men’s fashions. It appeared in the September 7,1981 issue of New York. The article entitled “Classic Mixes” contained three photographs (out of nine) of plaintiff Stephano, a professional model, displaying fall clothing. Plaintiff admits he contracted to model for that article and did not complain about the use of his photographs in said article.
One of the photographs taken for the September 7 article was used in a weekly featured column in the August 31, 1981 issue of New York entitled “Best Bets” and subcaptioned, “The best of all possible things to buy, see, and do in this best of all possible cities.” The text of the item mentioned that a new style “bomber jacket” by designer Giorgio Armani would be available the following week in stores such as Barney’s, Bergdorf Goodman and Bloomingdale’s, and gave the approximate cost. This short article carried the byline of Henry Post.
Plaintiff then brought this action against defendant as publisher of New York for damages resulting from the publication of his photograph in the August 31, 1981 issue without his consent. The first cause of action alleged violation of sections 50 and 51 of the New York Civil Rights Law and the second cause of action alleged violation of plaintiff’s right of publicity.
Defendant moved for summary judgment and, for purposes of this motion, admitted that it had no written consent from plaintiff for the publication of any photographs of him. Special Term granted the motion. I would affirm.
Section 51 of the Civil Rights Law provides, inter alia: “Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of *295 trade without * * * written consent * * * may maintain an equitable action * * * against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use”.
This statute was enacted after the Court of Appeals decided that no cause of action existed in favor of a young woman plaintiff whose photograph was distributed to advertise flour without her authorization (Roberson v Rochester Folding Box Co., 171 NY 538 ).
As this court has previously explained: “Since its purpose ‘is remedial and rooted in popular resentment at the refusal of the courts to grant recognition to the newly expounded right of an individual to be immune from commercial exploitation’ (Flores v Mosler Safe Co., 7 NY2d 276,280-281 ; see Lahiri v Daily Mirror, 162 Misc 776, 779 ), section 51 of the Civil Rights Law has been liberally construed over the ensuing years. Where First Amendment guarantees are involved, however, its application has been restricted ‘to avoid any conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest.’ (Spahn v Julian Messner, Inc., 18 NY2d 324, 328 , vacated and remanded 387 US 239 , on rearg 21 NY2d 124 .) ‘[FJreedom of speech and the press under the First Amendment transcends the right to privacy.’ (Namath v Sports Illustrated, 80 Misc 2d 531, 535 , affd 48 AD2d 487 , affd 39 NY2d 897 .)” (Brinkley v Casablancas, 80 AD2d 428, 432 .)
Section 51 specifically requires for its application that the challenged activity must be undertaken for the purposes of trade or advertising. Unauthorized uses of a photograph are immune from legal redress if the purpose of the publication is to disseminate information of public interest (Murray v New York Mag. Co., 27 NY2d 406 ).
The fact that the article may have been included to increase the circulation of the Magazine “does not render it violative of the statute” (Murray v New York Mag. Co., supra, at p 409; see, also, Arrington v New York Times Co., 55 NY2d 433, 440 ).
In Pagan v New York Herald Tribune ( 32 AD2d 341 , affd 26 NY2d 941 ) it was held that pictures of plaintiffs pub *296 lished without their consent in photographs depicting a new type of swimsuit worn by a female model were not published for trade or advertising purposes. This was true even though the pictures were accompanied, as in the instant case, by a price and the names of the designer and store where the bathing suit could be purchased. The court there held the publication was “a proper dissemination of fashion news of legitimate public interest” {Pagan v New York Herald Tribune, supra, at p 343).
In Lopez v Triangle Communications ( 70 AD2d 359 ) this court again addressed the issue of whether an article devoted to fashion or cosmetic news containing brand names is within the ambit of section 51 or insulated from liability. In that case, the infant plaintiff’s photograph appeared, without a written release, in a feature devoted to makeup, clothing, and hairstyling. The article contained a discussion of the brand names of products used. The Lopez court stated that plaintiff relied on the circumstance that the issue of the magazine containing this article also published an advertisement by one of the concerns whose products were mentioned in the article. “However,” the court added, “the evidence was uncontradicted that the article was prepared wholly without regard to advertising, and that brand names are customarily described as a service expected by readers. We see nothing in this to support the conclusion that the article involved the use of the plaintiff’s picture and name ‘for advertising purposes, or for purposes of trade’ ” (Lopez v Triangle Communications, supra, at p 361).
Again, in a previous decision of this court, a photograph of a plaintiff, published in an article showing men and boys wearing sports jackets of a particular material, without the consent of plaintiff, was held to not be for advertising purposes or for the purpose of trade (La Forge v Fairchild Pub., 23 AD2d 636 ).
The record before this court shows that the “Best Bets” column subtitled, “The best of all possible things to buy, see, and do in this best of all possible cities”, is a regular news feature of the Magazine and is used to provide readers with information as to interesting products, services and events available in the New York area. An editor, *297 Corky Pollan, confirmed in an affidavit submitted below that the column was an editorial portion of the Magazine. The use of the brand name, price and available sources to purchase the clothing did not detract from its informational purpose but rather added to that purpose. Readers of magazines and newspapers expect to be informed not only of the latest movies, plays, restaurants, styles of clothing, etc. They expect and are told where the movie or play can be seen, where and how delicious (or ill-prepared) the food is at the latest most popular dining place. Certainly, they expect to be told which clothing will soon become stylish and where it can be bought. This sort of featured item may be found in virtually every newspaper and periodical today.
Plaintiff attempted to show that “Best Bets” was an “advertisement in disguise” (Murray v New York Mag. Co., supra) because of the fact that the stores mentioned had advertised at one time or another in New York. However, no evidence is shown of an advertisement of one of these establishments advertising a Giorgio Armani creation. As in Lopez v Triangle Communications (supra) the evidence that the article was prepared wholly without regard to advertising was uncontradicted. The insertion of the informative facts such as the price of the product or the name of the stores where it could be purchased is “merely incidental to a public interest presentation” (Pagan v New York Herald Tribune, supra, at p 343; Lopez v Triangle Communications, supra).
This court can safely conclude that plaintiff has no other evidence than that already furnished on this motion. The opposing party has the duty on a motion for summary judgment to come forward and lay bare his proofs of evidentiary facts (Hanson v Ontario Milk Producers Coop., 58 Misc 2d 138 ). Plaintiff has attempted to place this action on the Trial Calendar, indicating in the note of issue and statement of readiness that discovery was waived. It is clear, therefore, that no factual issues remain.
The second cause of action asserting an “invasion of the right of publicity” was also properly dismissed by Special Term. “[Wjhatever may be the law in other jurisdictions with respect to the right to judicial relief for invasion of *298 privacy in consequence of unreasonable publicity, in our State thus far there has been no recognition of such right other than under sections 50 and 51 of the Civil Rights Law” (Wojtowicz v Delacorte Press, 43 NY2d 858, 860 ).
Plaintiff attempts upon this appeal to base his claim not only upon the photograph in the August 31 issue but also on the photographs in the September 7 issue. However, his complaint, although it mentions both the August 31 and the September 7, 1981 issues of the Magazine, states at paragraph 6: “At no time has plaintiff given written consent or any consent or any right to use his photograph, name or any information relating to plaintiff as depicted on page 49 of the magazine for reproduction, publicity or for purposes of trade, advertising or otherwise by way of release or otherwise.” The depiction on page 49 relates to the August 31, 1981 issue and therefore this is the only photograph “complained of” in the complaint. In addition, plaintiff’s affidavit in opposition to the motion, verified June 21,1982, also solely attacks the use of the photograph in the August 31, 1981 issue. In any event, the principles set forth herein apply with equal, if not greater, force to the publication of September 7, 1981, since it is similar in format to the August 31 publication.
Finally, any position that plaintiff’s status as a professional model gives him a special status vis-á-vis the use of matters of legitimate public interest as exempt from the protection of the Civil Rights Law is misplaced. That plaintiffs in Pagan (supra) were not professional models is not relevant. The use and context of the photos were the same whether the person portrayed was a professional or amateur model, or merely a bystander. Also, Lopez v Triangle Communications (supra) appears to directly deal with this issue. In Lopez the court noted: “Each of the teenage participants in the feature is paid for posing, and they and their parents normally sign releases” (at p 360; emphasis added). One of the hallowed distinctions between professional athletes and models and amateurs is that “professionals” get paid for their efforts. It may be that as a professional model, plaintiff has a cause of action sounding in contract, but he does not have a cognizable claim under sections 50 and 51 of the Civil Rights Law.
*299 Accordingly, the appeal from the order of the Supreme Court, New York County (Hettinger, J.), entered December 6, 1982, should be dismissed as subsumed in the judgment, and the judgment of the Supreme Court, New York County, entered December 16, 1982 thereon, granting defendant’s motion for summary judgment and dismissing plaintiff’s complaint, should be affirmed.
Milonas and Kassal, JJ., concur with Murphy, P. J.; Fein, J., concurs in an opinion; Asch, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on December 16, 1982, reversed, on the law, and the motion denied. Appellant shall recover of respondent $75 costs and disbursements of this appeal. The appeal from the order of said court, entered on December 6, 1982, is dismissed as having been subsumed in the appeal from the judgment, without costs and without disbursements.