The opinion
Eager, J. (dissenting).
I am constrained by the plain and unambiguous terms of the statute (Civil Bights Law, § 51) to dissent from the holding of the majority. Furthermore, I believe that the decision of Flores v. Mosler Safe Co. (7 N Y 2d 276) is controlling and clearly supports the judgment for the plaintiff here.
“ [T]he statute makes a use for 1 advertising purposes’ a separate and distinct violation.” (Flores v. Mosler Safe Co., supra, p. 284.) It confers upon every individual the right “ to control the use of his name or portrait by others so far as advertising or trade purposes are concerned. This right of control in the person whose name or picture is sought to be used for such purposes is not limited by statute.” (Binns v. Vitagraph Co., 210 N. Y. 51, 55 .)
By virtue of the terms of the statute the use without plaintiff’s consent of her name and picture by the defendants for advertising purposes entitled her to “ sue and recover damages for any injuries sustained by reason of such use ’ ’. There is no expressed limitation applicable here restricting such right. Thus, it seems to me, that the conferring of an exempt status upon this type of advertising solicitation in behalf of a magazine or periodical publisher is to judically interpolate an exception not written into the statute. This we may not do. Nor should we reach out to construe this statute “narrowly ” or apply its commands “ grudgingly ” (Lahiri v. Daily Mirror, 162 Misc. 776, 779 ). We should construe and apply it liberally, for the purpose of the statute is remedial and rooted in popular resentment at the refusal of the courts to grant recognition to *354 the newly expounded right of an individual to be immune from commercial exploitation” (Flores v. Mosler Safe Co., supra, pp. 280-281).
In fact, to hold that this area of public name commercialization is to be immunized from the application of the statute not only infringes upon the language thereof but tends to frustrate the very purpose of the statute, which “ was born of the need to protect the individual from selfish, commercial exploitation of his personality ” (Goelet v. Confidential, Inc., 5 A D 2d 226, 228).
In sheer simplification of the problem, we may look at it this way. Would the defendants, upon the taking of the particular picture of plaintiff and without a writing of the article in Holiday magazine, have been entitled to use, without her consent, the picture with her name for advertising purposes? Clearly, the answer would be NO. And, most certainly, the publication of the article in Holiday magazine did not confer upon the defendants a general right to subsequently take therefrom and use plaintiff’s name and picture out of context as an aid to future sales and advertising campaigns. The defendants did not thereby gain a license to thereafter cash in on the plaintiff’s popularity for the purpose of promoting the over-all business of the magazine enterprise.
The permissibility of the use of plaintiff’s name or picture, originally in the article or thereafter, depended upon the purpose and nature of the use. Material from the article, though no longer current, including the plaintiff’s name and picture, could be republished in connection with any informative presentation of a matter of public interest. (See Molony v. Boy Comics Publishers, 277 App. Div. 166 , 170; Dallesandro v. Holt d Co., 4 A D 2d 470, 471.) A use as a presentation of a matter of news or of legitimate public interest would be privileged (see Binns v. Vitagraph Co., supra, p. 56 ), and liberality in allowing such use is called for in the interest of speech and press freedom. On the other hand, a use for advertising purposes would be expressly prohibited by the statute, and neither the Constitution nor public interest requires that the statutory proscription be circumscribed to serve a private pecuniary interest.
In any event, it has been clearly laid down that the news or informative presentation privilege “ does not extend to commercialization ” of a newsworthy figure’s personality “ through a form of treatment distinct from the dissemination of news or information” (Gautier v. Pro-Football, 304 N. Y. 354, 359 ). And, on the undisputed facts, the particular use here by defendants some months after the original publication, of plaintiff’s *355 name and picture, was not in any sense the dissemination of news or a public interest presentation, nor was it merely incidental to such dissemination or presentation. The advertising was not so intended. The conceded purpose of the re-use of plaintiff’s picture, with her name, was not to advertise the Holiday magazine as a news medium. The defendants were not pointing to the quality or content of the particular issue or of the magazine Holiday generally for the purpose of selling it or future issues as news media. As a matter of fact, theirs was a calculated use to solicit the patronage and the business of advertisers. As stated in the wording of the ad, the defendants were urging the magazine as a “ selling opportunity for advertisers and, to carry out such purpase, there was an insertion of the advertisement with plaintiff’s picture and name in a strictly trade magazine, to wit, the Advertising Age. Thus, as stated in the majority opinion there was here “ in motivation, sheer advertising and solicitation ’ ’. This was ‘ ‘ a deliberate later publication of a no longer current news item in an individual firm’s advertising literature ”. (Flores v. Mosler Safe Co., supra, p. 282.) This was a use “ in, or as part of, an advertisement or solicitation for patronage ”. (Flores v. Mosler Safe |Co., supra, p. 284.) Such a use is specifically proscribed by the terms of the statute and it is immaterial that there was nothing in the advertisement to imply plaintiff’s indorsement of the magazine (Flores v. Mosler Safe Co., supra, pp. 283, 284).
Of course, in a particular case, it may be a question of fact as to whether or not a defendant’s re-use of a person’s picture and name taken from context of a prior newsworthy article is a deliberate and intentional use for collateral advertising purposes rather than merely incidental to news dissemination. Here, however, defendants ’ motivation was clear, as admittedly, they sought not to stimulate the circulation of the news medium but to sell advertising therein. In any event, if there was a question of fact, the judgment should stand because this question was resolved against the defendants by the unanimous determination of the jury that the particular advertisement was a separate and independent use by the defendants for their own advertising purposes.
Finally, in my opinion, the holding of the majority authorizes a publisher to boot-strap himself into a position whereby he can exploit the personalities of famous name individuals solely for the commercial interests of his publication and without regard to such incidental harm as may come to the individuals. This would defeat the very purpose of the statute and is contrary to the trend of the decisions in that it would leave without a remedy *356 a person who may be substantially injured by this type of advertising. One, without difficulty, can readily visualize that, upon a change occurring in personal circumstances, and depending upon the time, place and manner of the republication, a person, and particularly a public figure, could be severely injured in his reputation and feelings by the allowance of such commercial exploitation of his name and picture. The statute gives a right of action for such exploitation, and, in my opinion, there is nothing policywise requiring the courts to limit the plain effect of the statute.
In this case, it may be that the plaintiff was not substantially damaged. It may be' that the circumstances are such that punitive damages are not’in order. But, in view of the position of the majority, this is immaterial and I have not considered this feature.
Botein, P. J., Valente and Stevens, JJ., concur with Breitel, J.; Eager, J. dissents in opinion.
Judgment reversed, on the law, the verdict vacated, and the complaint dismissed, without costs. Appeal from order entered on June 19, 1961 dismissed as academic.