use of plaintiffs photograph for purposes of soliciting subscriptions is an incidental use where photograph gave reader indication of contents of magazine
How later courts described this case
- use of plaintiffs photograph for purposes of soliciting subscriptions is an incidental use where photograph gave reader indication of contents of magazine
- publisher could use plaintiffs picture to solicit subscriptions where photograph indicated content of defendant’s magazine
- Use of athlete’s photograph was “merely incidental” to advertising of magazine, which had carried articles about him
- “[t]he use of plaintiffs photograph was merely incidental advertising of defendants’ magazine in which plaintiff had earlier been properly and fairly depicted”
Written by the judges who cited it.
The opinion
Capozzoli, J.
Plaintiff sought substantial compensatory and punitive damages by reason of defendants’ publication and use of plaintiff’s photograph without his consent. That photograph, which was originally used by defendants, without objection from plaintiff, in conjunction with a news article published by them on the 1969 Super Bowl Game, was used in advertisements promoting subscriptions to their magazine, Sports Illustrated.
The use of plaintiff’s photograph was merely incidental advertising of defendants’ magazine in which plaintiff had earlier been properly and fairly depicted and, hence, it was not violative of the Civil Rights Law (Booth v Curtis Pub. Co., 15 AD2d 343 , affd 11 NY2d 907 ).
Certainly, defendants’ subsequent republication of plaintiff’s picture was "in motivation, sheer advertising and solicitation. This alone is not determinative of the question so long as the law accords an exempt status to incidental advertising of the news medium itself’. (Booth v Curtis Pub. Co., supra, p 349.) Again, it was stated, at page 350 of the cited case, as follows: "Consequently, it suffices here that so long as the reproduction was used to illustrate the quality and content of the periodical in which it originally appeared, the statute was not violated, albeit the reproduction appeared in other media for purposes of advertising the periodical.”
Contrary to the dissent, we deem the cited case to be dispositive hereof. The language from the Namath advertisements relied upon in the dissent does not indicate plaintiff’s indorsement of the magazine Sports Illustrated. Had that been the situation, a completely different issue would have been presented. Rather, that language merely indicates, to the readers of those advertisements, the general nature of the contents of what is likely to be included in future issues of the magazine.
The order of the Supreme Court, New York County, entered *489 on February 5, 1975 (Baer, J), granting defendants’ motion for summary judgment dismissing the complaint herein, and the judgment entered thereon on February 10, 1975, should be affirmed, with costs.