Appendix — Lerman v. Flynt Distributing Co.
Supreme Court brief1985
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Supreme Court of the United States
October Term, 1984
JACKIE COLLINS LERMAN,
Petitioner,
against
FLYNT DISTRIBUTING COMPANY, INC.,
Respondent.
Appendix to Petition' For a Writ of Certiorari
NORMAN ROY GRUTMAN
Counsel for Petitioner
505 Park Avenue
New York, NY 10022
(212) 888-1900
Of Counsel:
GRUTMAN MILLER GREENSPOON HENDLER & LEVIN
JEWEL H. BJORK
JEFFREY H. DAICHMAN
FELIX C. ZIFFER
Pe Pe ad
Index to Appendix,
Page
Opinion of the United States Court of Appeals for
ee Se len 5 4-6 ohn ds necknnseseean la
Opinion of the United States District Court
Southern District of New York, dated July
Ses sh bine kus Gewese Se eeueeekanns 38a
Memorandum Decision, United States District
Court, Southern District of New York, dated
EY 2 as none heka ek bae ee ek ees 46a
Opinion of the United States District Court,
Southern District of New York, dated August
a I err rere err oe 50a
Memorandum Decision of the United States District
Court, Southern District of New York, dated
ae a 5 465.5 u45 bX On Oe 6 dne Rohe en 70a
Constitutional and Statutory Provisions.......... 84a
May 1960 Issue of Adelina. .... 0.0... ccc ccc eeees 87a
Plaintiff’s Exhibit 6...................05. 6 GP 89a
Opinion of the United States Court of Appeals
For the Second Circuit.
UNITED STATES COURT OF APPEALS
For THE SECOND Circuit
aoe
No. 724-—August Term, 1983
(Argued January 30, 1984
Decided September 10, 1984)
Docket No. 83-7735
7
JACKIE COLLINS LERMAN,
Plaintiff-Appellee,
—against—
FLYNT DisTRIBUTING Co., INC.,
Defendant-Appellant.
Before:
VAN GRAAFEILAND and CARDAMONE, Circuit Judges,
and BonsAL, District Judge.*
—e-
ad Honorable Dudiey B. Bonsal, United States District Court Judge for
the Southern District of New York, sitting by designation.
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-ppeal from a judgment of the United States District
Court for the Southern District of New York (Werker, J.)
following a jury trial in which plaintiff was awarded
$10,000,000 for violations of N.Y. Civ. Rights Law §§ 50-
51 and plaintiff's right to publicity.
Reversed. Judge Bonsal concurs and dissents in a
separate opinion.
<>
JerFrey H. DaicHMAN, New York, New York
(Norman Roy Grutman, Grutman Miller
Greenspoon & Hendler, New York, New ©
York, of counsel), for Plaintiff-Appellee.
Epwarp S. Ruporsky, New York, New York
(David L. Kahn, Los Angeles, Califor-
nia, Frederick A. Polatsek, Zane and
Rudoftsky, New York, New York, of
counsel), for Defendant-Appellant.
IRVING SCHER, New York, New York (Lauren
W. Field, Tami J. Aisenson, Weil, Got-
shal & Manges, New York, New York of
counsel) for /nternational Periodical Dis-
tributors Association, Inc., American
Booksellers Association, Inc., National
Association of College Stores, and Pe-
riodical and Book Association of
America, Inc., Amici Curiae.
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CARDAMONE, Circuit Judge:
Freedom of expression preserves all other liberties so
inseparably that freedom of the press and a free society
either prosper together or perish together. Yet, because of
iis enormous power, the contemporary press is under
heavy attack because of a widely held perception that it
uses its special First Amendment status as a license to
invade individual privacy. This case illustrates the com-
plexity of the concerns when these interests clash.
Defendant, a national distributor of magazines in
which offensive material concerning plaintiff appeared,
appeals from a judgment in plaintiff's favor. In her action
plaintiff asserted causes of action for libel, violation of a
Statutory right of privacy, and appropriation of the com-
mon law right to publicity. In every invasion of privacy
suit there is a course to be run in order for plaintiff to
reach the goal of recovery. In this case, plaintiff's libel
action was dismissed and her right to publicity claim fails
to fit within that tort. The civil rights cause does not lie as
one for advertising purposes, as that term is defined
under state law; but it does state a cause of action for
defendant's invasion for trade purposes of her right to
privacy. Having successfully progressed that far, plaintiff
would need to demonstrate a level of defendant's fault on
that privacy claim sufficient to satisfy constitutional pro-
tection for freedom of the press. Here, on the final lap,
plaintiff's proof falls short.
| Background
On February 29, 1980 the plaintiff Jackie Collins Ler-
man received a package at her home in London, England.
An accompanying letter from a publicity agent who had
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formerly worked with Ms. Lerman explained that nude
photographs, supposedly of plaintiff, appeared in the
enclosed advance copy of Adelina magazine. Plaintiff
discovered that the May 1980 issue of Adelina had mis-
identified her as an actress who appeared in Ms. Ler
man’s and her husband Oscar Lerman's movie entailed
“The World is Full of Married Men.” Two black and
white photographs of the anonymous actress printed
from the movie film appeared on pages 120-21 of the
magazine. The misidentified actress appears topless in
one of the pictures and in an “orgy” scene in the other.
The caption identifies the photos as being Ms. Lerman
and labels her as the “starlet” who appeared in an orgy
scene in the film.
The cover of the magazine proclaimed to its readers:
“In the Nude from the Playmen archives . . . Jackie
Collins.” The short article accompanying the actress’
photo with Ms. Lerman's name comments on the increas-
ing willingness of “serious” actresses to appear nude in
films. While Ms. Lerman authored the book and wrote
the screenplay for “Married Men” and her husband
directed the movie, she did not appear in the movie,
clothed or otherwise, and has never appeared nude in
public.
Immediately upon receipt of this package, Ms. Lerman
retained a lawyer and three weeks later—on March 24,
1980—commenced an action in the United States District
Court for the Southern District of New York (Werker, J.)
against the publisher, Chuckleberry Publishing, Inc.
(“Chuckleberry”), and against the original national dis-
tributor, Publishers Distributing Company, Inc. (“PDC”
or “Publishers Distributing”) based upon the May 1980
publication and distribution of Adelina. Plaintiff sought
an injunction and damages based on (a) libel (b) defen-
“
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dant's violation of New York's Civil Rights Law §§ 50-5!
and (c) invasion of her common law right to publicity.
On March 31 the district judge issued a preiiminary
injunction restraining the distribution of Adelina. While
the extent of the original defendants’ compliance with
that injunction is disputed, it is clear that Publishers
Distributing informed all of its more than 500 nationwide
wholesale customers of Ms. Lerman’s lawsuit and the
outstanding injunction, and requested that al! unsold
copies of the magazine be returned. Chuckleberry never-
theless included in its June 1980 Adelina issue a subscrip-
tion solicitation page that reprinted, in reduced size and
among other reprinted Adelina covers, the May 1980
cover page that claimed to contain a photo of Jackie
Collins “In the Nude from the Playmen archives.” The
identical solicitation page appeared six months later in the
January 1981 issue of Adelina.
On March 17, 1980, shortly before the original lawsuit
was commenced, but after the May issue of Adelina was
already in the channels of distribution, Flynt Distributing
Company (Flynt Distributing or FDC), the present appel-
lant, purchased the contract to distribute Adelina from
Publishers Distributing. Flynt Distributing was joined as
a party defendant to this litigation in April 1981. Plaintiff
sought the same relief against Flynt Distributing with
respect to the June 1980 and January 1981 distribution of
Adelina as she had sought against the original defendants
for the May publication. In an amended complaint plain-
iff asserted these same causes of action against Flynt
Distributing for the May 1980 issue.
The district court granted plaintiff's motions for sum-
mary judgment against Chuckleberry Publishing,
Publishers Distributing and Flynt Distributing for viola-
tions of New York's Civil Rights Law §§ 50-51 and for
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defendant’s invasion of plaintiff's right to publicity.
Plaintiff's libel action against the defendants was dis-
missed. In February 1983 plaintiff settled with Publishers
Distributing for $100,000. Chuckleberry is in Chapter |!
bankruptcy reorganization.
In June 1983, with both original defendants out of the
case, plaintiff proceeded to trial before a jury against
Flynt Distributing. Ms. Lerman sought damages under
her New York statutory privacy claim and her common
law right to publicity arising from the May 1980 publica-
tion. Inasmuch as liability had already been determined in
- her favor by the trial court's grant of summary judgment,
she also sought damages for distribution of the June 1980
and Jaauary 1981 editions of Adelina. After a short irial
the jury returned a special verdict determining that defen-
dant Flynt Distributing was liable for the May 1980 issue
and awarding Ms. Lerman a total of $7 million in
compensatory and $33 million in exemplary damages.’
The trial court struck $30 million from the exemplary
damage award, leaving iniact an award of $7 million
compensatory and $3 million exemplary damages. It is
from this $10 million judgment that defendant Flynt
Distributing has appealed.
Since plaintiff has not cross-appealed, we need not
consider whether the district court correctly dismissed
plaintiff's libel claim on the ground that she failed to
' The jury returned the following verdicts.
Compensatory Exemplary
May 1980 $800 thousand None
June 1980 =—s 1.2 million $ 1.0 millon
Jan. 1981 $.0 milhon 32.0 milhon
Tota: Veaorcts
$7.0 mithon $33.0 mithon
‘
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plead special damages. Discussion will focus primarily on
two causes of action—New York's statutory action for
violation of the right of privacy and the common law
action for violation of the right to publicity. The parties
agree that New York law governs in this diversity case.
Il Grounds for Recovery Under State Law
A. Background Leading to Enactment of New York's
Right of Privacy Statute
The traditional common law rein on media abuse was
the libel action. Bui in 1890 Samuel Warren and Louis
Brandeis announced their recognition of a developing
right of privacy. See generally S. Warren and L. Brandeis,
The Right of Privacy, 4 Harv. L. Rev. 193 (1890). The
article was a direct response to perceived abuses by the
mass media of the day:
The press is overstepping in every direction the obvi-
ous bounds of propriety and of decency. . . .
[Mjodern enterprise and invention have, through
invasions upon [man's] privacy, subjected him to
mental pain and distress, far greater than could be
inflicted by mere bodily injury.
ld. at 196.
Following the Warren-Brandeis article, courts were
asked to recognize this “new” tort. The New York Court
of Appeals rejected the invitation in Roberson v. Roches-
ter Folding Box Co., 171 N.Y. 538 (1902), where the
picture of an attractive young woman, used without her
permission, adorned more than 25,000 posters advertising
the defendant's flour. Her suit for this invasion of her
privacy was dismissed by New York's highest court. In
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1903 the public outcry over this seemingly unfair decision
resulted in the enactment by the New York State Legisla-
ture of sections 50 and 51 of the Civil Rights Law,
entitled “Right of Privacy.” Section 50 provides criminal
penalties for the use of a person’s name, picture or
likeness for advertising or trade purposes (the only two
cases ever brought'under § 50 were dismissed before
trial), and § 51 gives the individual victim of such use the
right to obtain an injunction and a cause of action to
obtain compensatory and exemplary damages:
Any person whose name, portrait or picture is used
within this state for advertising purposes or for the ,
purposes of trade without [his] written consent. . .
may maintain an equitable action in the supreme
court of this state against the person, firm or corpo-
ration so using his name, portrait or picture, to
prevent and restrain the use thereof; and may aiso
sue and recover damages for any injuries sustained
by reason of such use and if the defendant shall have
knowingly used such person’s name, portrait or pic-
ture in such manner. . . the jury in its discretion
may award exemplary damages.
New York Civ. Rights Law § 51 (McKinney Supp. 1983).
New York’s highest court has consistently reminded liti-
gants that “there exists no so-called common law right to
privacy” in New York. Cohen v. Hallmark Cards, Inc.,
45 N.Y.2d 493, 497 n.2 (1978); see Arrington v. The New
York Times Co., 55 N.Y.2d 433, 440 (1982).
B. New York’s Right of Privacy Statute
In granting summary judgment io plaintiff against the
original defendants, Publishers Distributing and Chuckle-
*y
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berry, under sections 50-51, the district court stated: “To
make out a claim under section 51, a plaintiff must
establish (1) that the defendant used plaintiff’s name,
portrait or picture within the state, (2) for purposes of
advertising or trade, and (3) without first obtaining plain-
tiffs written consent.” 496 F. Supp. 1105, 1107-08. The
. trial court continued, “The fact that Publishers [PDC]
may not have known that the plaintiff’s name was being
used without her consent and in the manner in which it
was used is irrelevant to the questions of compensatory
damages and injunctive relief.” /d. at 1109. The court did
not then decide the public figure question, concluding
that actua! malice was not required even if plaintiff were
a public figure where the use was not informational but
rather, “completely exploitive, [and] commercial.” Id. at
1110. The district court held “there is no such informa-
tional or newsworthy dimension to Chuckieberry’s un-
authorized use of plaintiff’s name,” and that “the use of
her name was for a commercially exploitive effect rather
than for the purpose of informing the public about a
newsworthy event.” /d. at 1107-08. As we shall discuss
shortly, these statements were in some respects inaccurate
and in other respects erroneous as a matter of law. The
district court was equally in error in its June 3, 1982
opinion when it granted summary judgment to plaintiff
against Flynt Distributing. 544 F. Supp. 966.
On its face the New York privacy statute seems to
provide a cause of action only for “commercial appro-
priation,” defined in Roberson as the defendant’s act,
“for his own selfish purpose to use the picture or the
name of another for advertising purposes without his
2 Because the provisions of § 50 are incorporated in § 51, reference
will be made only to § 51.
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consent.” Roberson, supra, 171 N.Y. at 545. Commenta-
tors and the American Law Institute recognize “commer-
cial appropriation” as only one of four kinds of invasion
of privacy and distinguish it from the torts of publicly
placing a person in a false light, intrusion upon one’s
personal solitude and the public disclosure of private
facts. See, e.g., W. Prosser, Privacy, 48 Cal. L. Rev. 383,
389 (1960); Restatement (Second) of Torts § 652A (1976).
The last two invasions—intrusion upon personal solitude
and public disclosure of private facts—are not the subject
of any claim on this appeal. The first two torts—commer-
.cial appropriation and false light—are implicated.
Analysis must commence with the New York statute:
and the substantial case law it has spawned. See, L.
Savell, Right of Privacy—Appropriation of a Person's
Name, Portrait or Picture for Advertising or Trade Pur-
poses Without Prior Written Consent: History and Scope
in New York, 48 Albany L. Rev. | (1983). The terms
“advertising purposes” and “trade purposes” constitute
the two prongs of the statute and their meaning, as
construed by New York courts, is crucial to an analysis of
plaintiff’s claims in this case.
1. Advertising Purposes Under § 51
Where the use of plaintiff’s name is solely for the
purpose of soliciting purchasers for defendant's products
the advertising purposes prong of the statute is violated.
See, e.g., Flores v. Mosler Safe Co., 7 N.Y.2d 276, 284
(1959) (defendant safe company reprinted in an advertis-
ing circular a newsphoto of a burning building and the
accompanying news story, which mentions plaintiff's
name several times and relates how the fire started when
plaintiff returned some merchandise); Selsman v. Univer.
sal Photo Books, Inc., 18 A.D.2d 151, 152 (ist Dep’t
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1963) (camera manual where use of plaintiff’s name and
picture held to be for advertising purpdses because it went
beyond cducational purpose and expounded the virtues of
the camera). To be a use for advertising purposes, “the
usc must appear in or as part of an advertisement or
solicitation for patronage.” Ginsberg v. News Group
Publications, 9 Med. L. Rep. 2014, 2016 (Sup. Ct. Nas-
sau Cty. 1983); see also Eliah v. Ucatan Corp., 433 F.
Supp. 309, 312 (W.D.N.Y. 1977) (use of picture to adver-
lise suntan products); Negri v. Schering Corp., 333 F.
Supp. 101 (S.D.N.Y. 1971) (photo of Pola Negri used to
advertise antihistamene tablets); Reilly v. Rapperswill
© Corp., 50 A.D.2d 342 (Ist Dep’t 1975) (plaintiff's film
used to advertise insulation). The New York Court of
Appeals has held that to be liable for compensatory
damages tor use of a person’s name, portrait or picture
based on an advertising purpose claim, defendant need
not have known that its use was without plaintiff's
consent. Welch v. Mr. Christmas, 57 N.Y.2d 143, 149
(1982); accord, Cohen v. Herbal Concepts, Inc.,
N.Y.L.J., March 12, 1984, at 7, col. 1 (Ist Dep’t).
When the advertisement is merely incidental to a privi-
leged use there is no violation of § 51. See Sidis v. F-R
Publishing Corp., 113 F.2d 806, 810 (2d Cir.), cert.
denied, 311 U.S. 711 (1940) (biographical sketch of child
prodigy Originally published in magazine and later used to
advertise the sketch. in a newspaper unobjectionable).
Plaintiff cannot argue that the use of her name (accompa-
nied by a photo of an unclad woman) in the May 1980
issue Of Adelina was for advertising purposes. She did not
show a “use for the solicitation of patronage for a
particular service or product.” Pagan v. New York Herald
Tribune, 32 A.D.2d 341, 343 (Ist Dep’t 1969), aff’d, 26
N.¥.2d 941 (1970). The June 1980 and January 1981 uses
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could be viewed as for advertising purposes since they
solicited orders for back issues of Adelina. But, the
republications in the June 1980 and January 1981 sub-
scription solicitations were incidental to the May 1980
publication. Because the solicitations were designed sim-
ply to convey the nature and content of past Adei/ina
issues, they cannot form the basis for an independent
claim under the advertising use prong of § 51. See Sidis v.
F-R Publishing Corp., supra, 113 F.2d at 810; Namath vy.
Sports Illustrated, 48 A.D.2d 487, 488 (ist Dep’t 1975),
aff'd, 39 N.Y.2d 897 (1976); Booth v. Curtis Publishing
Co., 15 A.D.2d 343, 350 (Ist Dep’t) (per curiam), aff'd,
‘11 N.Y.2d 907 (1962). Accord, Lawrence v. A.S. Abell
Co., 475 A.2d 448 (Md. 1984).
2. Trade Purposes Under § 51
Next, we examine whether the uses of plaintiff’s name
were for “purposes of trade” under the statute. Because
the media in reporting the news routinely uses names and
likenesses without consent, New York courts early recog-
nized the need to encourage the free exchange of ideas
and created a broad privilege for the legitimate dissemina-
tion to the public of news and information. See, e.g.,
Humiston v. Universal Film Mfg. Co., 189 App. Div. 467
(ist Dep’t 1919); Colyer v. Fox Publ. Co., 162 App. Div.
297, 299-300 (2d Dep’t 1914). The trade purposes preng
of the statute may not be used to prevent comment on
matters in which the public has a right to be informed. In
Gautier v. Pro-Football, Inc., 304 N.Y. 354 (1952), the
Court of Appeals dismissed an animal trainer’s objection
to a televised broadcast of his act performed at half-time
of a Washington Redskins’ professional football game.
Where plaintiff is a public personage or an actual partici-
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pant in a newsworthy event, the use of his name or
likeness is not for purposes of trade Within the meaning
of § S51. /d. at 359-61. Yet, there are limits to the privi-
lege: “While one who is a public figure or is presently
newsworthy may be the proper subject of news or infor-
mative presentation, the privilege does not extend to
commercialization of his personality through a form of
ireatment distinct from the dissemination of news or
information.” /d. at 359. Since “newsworthiness” and
“public interest” are to be “freely defined,” Arrington v.
The N.Y. Times Co., supra, 55 N.Y.2d at 440, the use of
plaintiff's name in connection with the movie “The World
is Full of Married Men” is a matter in which the public
plainly has a legitimate interest.
Plaintiff may still be entitled to obtain the sanctions of
§ 51 under the trade purposes prong even where the use is
in conjunction with a report on a matter of public
interest, but in order to do so must meet one of two tests.
First, a plaintiff may attempt to demonstrate that the use
of plaintiff’s name or likeness has no real relationship to
the discussion, and thus is an advertisement in disguise.
See, Mayers v. Michals, 9 Med. L. Rep. 1484 (N.Y. Cty.
Sup. Ct. 1983) (use of photo in connection with article on
rape victims); Martin v. Johnson Publ. Co., 157 N.Y.S.2d
409 (Sup. Ct. 1956) (photographs of unknowing women
used to illustrate article); Metzger v. Deli Publ. Co., 207
Misc. 182, 186 (N.Y. Cty. Sup. Ct. 1955) (use of by-
standers’ photo in article describing gangs in detective
magazine); cf. Murray v. New York Magazine Co., 27
N.Y.2d 406, 409-10 (1971) (plaintiff who attended a St.
Patrick’s Day Parade in green hat and bow tie has no
trade purposes claim against use of his picture in defen-
dant’s magazine in a story entitled “The Last of the Irish
Immigrants”); Delan v. CBS, Inc., 91 A.D. 2d 255, 259
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(2d Dep’t 1983) (mental patient has no trade purposes
claim when shown in news documentary on mental hospi-
tals); Lahiri v. Daily Mirror, 162 Misc. 776, 782-83 (N-Y.
Cty. Sup. Ct. 1937) (professional photo of plaintiff used
in story exposing “Indian Rope Trick” is use for general
public interest, not for trade purposes). Alternatively, a
plaintiff may claim that defendant forfeited the privilege
for reporting matters on which the public has the right to
be informed by proving that the defendant’s use was
infected with material and substantial fiction or falsity,
see Goldberg v. Ideal Publishing Corp., 210 N.Y.S.2d
928, 929 (Sup. Ct. N.Y. Cty. 1960) (lurid account of
- rabbi’s life in romance magazine). Even when so infected,
for defendant to lose the newsworthy privilege plaintiff
must prove that defendant acted with some degree of
fault regarding the fictionalization or falsification. Spahn
v. Julian, Messner, Inc., 21 N.Y.2d 124 (1967), appeal
dismissed, 393 U.S. 1046 (1969).
We cannot accept plaintiff’s first argument that the
photo in this case has “no real relationship” to any
discussion in Adelina. Ms. Lerman wrote the book and
screenplay that contained scenes of nudity for the film
“The World is Full of Married Men.” While the article in
Adelina was vapid it did relate to the growing use of
nudity in films. Insofar as the use of the name “Jackie
- Collins” is concerned the May 1980 use must be consid-
ered incidental to the story, and hence not objectionable
as a “disguised advertisement” under § 51. See University
of Notre Dame Du Lac v. Twentieth Century Fox, 22
A.D.2d 452 (Ist Dep’t), aff'd. 15 N.Y.2d 940 (1965).
Further, plaintiff’s status as an author and screenwriter of
a film in the erotic genre makes her claim of “no connec-
tion” with these particular photographs unpersuasive.
Certainly she has as much or more connection with this
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article than did the plaintiffs in Murray, Delan and
Lahiri, supra. Thus, Ms. Lerman Was not an innocent
bystander without any relationship to the subject matter
of the article and to the photograph.
Plaintiff's reliance on the alternative basis for defeating
the newsworthy privilege rests on firmer ground, that is,
the fictionalization or falsification ground. See, e.g.,
Sutton v. Hearst Corp., 277 App. Div. 155 (1950) (while
woman was bequeathed one perfect rose a week by secret
admirer, complaint stated cause of action because story so
embellished as to be fictionalized). See also Spahn v.
Julian Messner, Inc., supra, Binns v. Vitagraph Co, 210
N.Y. S51, 56 (1913) (war hero fictionalized). The Spahn
court stated that the degree of falsity must be severe, and
found it in that case because the former great National
League pitcher’s life had been significantly misrepre-
sented by defendant. 21 N.Y.2d at 127.
The recent case of Davis v. High Society Magazine,
Inc., 90 A.D.2d 374 (2d Dep’t 1982), appeal dismissed, 58
N.Y.2d I11S (1983) is strikingly similar to this one.
Plaintiff. a female boxer, discovered that the defendant
publisher had misidentified her as a boxer pictured top-
less in defendant’s magazine. The trial court granted
plaintiff's summary judgment motion under § 51 without
regard to the defendant’s knowledge of the factual error.
The Appellate Division found plaintiff to be a public
figure and reversed the lower court’s ruling. The court
Stated that “a public official or public figure seeking to
recover against a media defendant under the Civil Rights
Law because of some falsification must prove that the
defendant was aware of the falsification or recklessly
disregarded the truth.” 90 A.D.2d at 382. We believe
Davis sets forth the correct analysis for this type of
misidentification. Ms. Lerman attempts to distinguish
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Davis because there the plaintiff was a boxer, while Ms.
Lerman has never been a “starlet.” But the critical ele-
ment in Davis as in this case is the misidentification, /.e.,
the factual error. When presented with a factual error
which brings an otherwise privileged newsworthy use
within the trade purpose prohibition, the Supreme Court
and the New York Court of Appeals have required that
there be a finding of fault. See generally Time, Inc. v.
Hill, 385 U.S. 374 (1967); Spahn v. Julian Messner,
supra.
We agree that plaintiff's name in all three Adelina
issues are fictionalized or false and therefore lose the
privilege that ordinarily extends to reporting matters in’
which the public has an interest. Further, the degree of
falsity here was severe since plaintiff was not the actress
pictured. Were it not for constitutional concerns this
falsity would permit a properly instructed jury to find the
uses here to be for trade purposes under § 51 of the New
York Civil Rights law. But, precisely ecause of First
Amendment guarantees Flynt Distributing cannot be held
liable for the use of plaintiff's name unless it acted with
the requisite fauit, and it is on this last point that
plaintiff's proof fails as we will later explain.
3. Distributor’s Liability Under § 51
When dismissing plaintiff's libel claim in its August
1981 opinion, the district court ruled that “the New York
courts have long held that vendors and distributors of
defamatory publications are not liable if they neither
know nor have reason to know of the defamation.” 521 F.
Supp. at 235. Thus, it granted summary judgment to
Publishers Distributing on that issue as to the May 1980
article, but found “that questions of fact clearly are
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presented with respect to whether special circumstances
existed requiring PDC to review the content of the issues
of Adelina published after the May 1980 issue.” Without
discussion, the district judge then refused to apply this
same limitation on distributor liability for § 51 purposes.
Flynt Distributing argues that plaintiff failed to prove
that it “used” her name or picture under § 51. This
argument is quite like a defendant’s argument at common
law that he did not “publish” a libel. See, e.g., W.
Prosser, Law of Torts § 113, at 775 (4th ed. 1971). See
Industrial Equipment Co. v. Emerson Electric Co., 554
F.2d 276, 289 (6th Cir. 1977); Skeoch v. Ottley, 377 F.2d
804, 808 (3d Cir. 1967); Restatement (Second) of Torts
§§ 577, 588 and comment d. While a similar requirement
may exist in the law of privacy, J. Wade, Defamation and
the Right of Privacy, 1S Vand. L. Rev. 1093, 1109 (1962),
there is little contemporary case law in New York defining
the contours of the “use” required for compensatory
damages under § 51. But the New York Court of Appeals
has ruled in a commercial appropriation case that defen-
dant’s lack of knowledge that plaintiff had not consented
was no defense to a compensatory damage claim under
§ S51. Welch v. Mr. Christmas, supra, 57 N.Y.2d 143;
accord, Thompson v. Ciose-up, Inc., 277 App. Div. 848
(ist Dep’t 1950) (per curiam) (use by allegedly innocent
mistake).
We need not hazard to guess how New York Courts
would apply these authorities to Ms. Lerman’s claim.
Rather, we assume that Welch v. Mr. Christmas correctly
states the rule and that, as a matter of New York law,
plaintiff met the “use” requirement merely by showing
that Flynt Distributing purchased the contract entitling it
to profits from the May 1980 issue and by participating in
the distribution of the June and January issues of
Adelina.
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C. Plaintiff's Claim of a Right to Publicity
In her complaint, plaintiff also included a cause of
action based upon her common law right to publicity on
which the district court granted her summary judgment.
It is unnecessary to determine the precise outlines of that
right under New York law because it is not implicated.
Here, the right to publicity is essentially identical to the
right to be free from commercial appropriation. See, e.2.,
Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.
$62, 571-72 (1979); see Winterland Concessions Co. v.
Sileo, 528 F. Supp. 1201, 1213 (N.D. Ill. 1981). In light of
the proof, a claim for commercial appropriation or viola-
tion of the right to publicity does not lie. “[M]Juch
confusion shrouds the so-called ‘right to publicity.’ ”
Factors Etc., inc. v. Pro Arts, Inc,, $79 F.2d 215, 220 (2d
Cir. 1978), cert. denied, 440 U.S. 908 (1979). In Factors,
we expressly equated this “separate tort” with Dean
Prosser’s privacy tort of appropriation of name or like-
ness. Jd. at 220-22. Accord, Carson v. Here's Johnny
Portable Toilets, Inc., 698 F.2d 831, 834 (6th Cir. 1983). ht
is a right of relatively recent origin having been first
applied by us in Haelan Laboratories v. Topps Chewing
Gum, Inc., 202 F.2d 866 (2d Cir.), cert. denied, 346 U.S.
816 (1953). The right is one designed to encourage intel-
lectual and creative works and to prevent unjust enrich-
ment. .
In a publicity case the plaintiff is not so concerned that
the use occurs; he simply wants to be the one to decide
when and where, and to be paid for it. The essence of the
right is the plaintiff's substantial property interest in his
“entire act,” Zacchini, supra, 433 U.S. at $74, his like-
ness, Grant v. Esquire, 367 F. Supp. 876, 880 (S.D.N-Y.
6160
19a
1973), or even his “style,” Groucho Marx v. Day and
Night Co., 689 F.2d 317 (2d Cir. 1982). The action is
based upon defendant's attempt “to broadcast or publish
that for which the performer normally gets paid.” P.
Samuelson, Reviving Zacchini: Analyzing First Amend-
ment Defenses in Right of Publicity and Copyright Cases,
57 Tulane L. Rev. 836, 868 n.120 (1983) (citing Grant v.
Esquire, supra).
Because the plaintiff must generally have developed a
property interest with financial value in order to prove
that he suffered damages, the right is most frequently
invoked by public figures or celebrities. Estate of Presley
v. Russen, $13 F. Supp. 1339 (D. N.J. 1981); Hicks v.
Casablanca Records, 464 F. Supp. 426, 429 (S.D.N_Y.
1978). Thus, Ms. Lerman’s insistence that she is a private
person insofar as these Adelina articles are concerned
does not square with her claim that her right to publicity
was appropriated. Plaintiff did not establish a prima facie
cause of action for violation of her right to publicity. She
has never exploited the value of her nude appearance and
obviously cannot claim to have developed a property
interest in the subject matter of this alleged infringement.
Moreover, proof that this is not a right to publicity case is
in plaintiff's demand for relief—she sought to enjoin
publication and to salve her wounded feelings—neither of
which are the kinds of injuries that the publicity tort is
designed to remedy. There is simply no evidence that any
defendant deliberately exploited plaintiff's fame and for-
tune. Inasmuch as the facts fail to establish a violation of
plaintiff's right to publicity as a matter of law, her cause
of action on that theory should have been dismissed.
616!
20a
D. False Light Tort Distinguishable from Right to
Publicity
Despite this conclusion, we undertake a brief analysis
of the false light togt because it is essential to an under-
standing of the application of the First Amendment to
§ 51. While not specifically alleged in her complaint, Ms.
Lerman’s action presents a classic false light claim, which
is distinguishable from her right to publicity cause of
action. In Time, Inc. v. Hill, 38S U.S. 374 (1967), the
* Supreme Court observed that New York Courts have
construcd the language of § 5! broadly enough to encom-
pass false light claims. /d. at 381, 384-85. In Time, Inc. v.
fill, Life magazine had printed a story stating that the
play, The Desparate Hours, was a reenactment of the Hill
family’s highly publicized orceal with a group of escaped
convicts. While based on the incident, the play had
fictionalized the event. New York courts granted recovery
to Hill under § $1 based on Life's false statement that the
play was a factual reenactment of the ordeal. The Su-
preme Court reversed holding that claims under New
York's statute based on a fictitious or falsified report
which would otherwise be privileged are not actionable,
absent proof of knowledge of falsity or reckless disregard
of the truth, The Court stressed that where falsity ts the
gravamen of a § 51 claim, First Amendment guaranices
permit imposition of liability only where actual malice is
shown. /d. at 387-88. As the Supreme Court said in Time,
Inc. v. Hill, and later implied in Zacchini v. Scripps-
Howard Broadcasting, supra, 433 U.S. at $73, it is
essential to analyze “trade purposes” claims under § 51 to
determine whether First Amendmeni concerns surround-
ing this false light tort are implicated. If not, the press is
entitied only to the limited First Amendment protection
afforded under Zacchini.
6162
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In examining the false light tort, we turn to section
6S2E of the Restatement (2d) of Torts that provides:
One who gives publicity to a matter concerning
another that places the other before the public in a
false light is subject to liability to the other for
invasion of his privacy, if
(a) the false light in which the other was placed
would be highly offensive to a reasonable person,
and
(b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter
and the false light in which the other would be
placed.
Assuming the requisite proof of fault, the facts of this
case state a cause of action under section 652E. The nude
actress pictured was not Ms. Lerman. Whether or not this
misidentification is defamatory to Ms. Lerman, of. Mc-
Graw v. Watkins, 49 A.D.2d 958, 989 (3d Dep't 1975)
(film with nude scene of plaintiff “does not necessarily
impute unchastity to plaintiff"), we cannot conclude that
such publicity is not “highly offensive to a reasonable
person.” See Arrington v. The New York Times, supra, 55
N.Y.2d 433, 442 (taking and publishing plaintiff's picture
without his knowledge or consent in connection with an
article on the “Black Middle Class” was not “highly
offensive to persons of ordinary sensibilities” under the
Restatement § 652E formulation). Hence, if a false light
claim under the Restatement rubric is recognized in New
York, Ms. Lerman has stated a claim under it.’
: The dwtrict count addressed the June 1980 and January 198!
subsorppnen solctations and found m ty June 3, 1982 decision they
“would appear to fa squarely within the caception for advertising
modental to the news medium except that plamtufl!l was aot properly
and tawily prevented im the May 1980 insuc of ‘Adelina.’ ” $44 F. Supp
6163
22a
in a false light case, however styled under a state
statute or common law, the gravamen of the tort is
falsity; not, as here, simply a factual error. Further,
regardless of whether Ms. Lerman’s cause of action is
cast in terms of libel or false light or under the falsified
trade purposes prong of § 51, the same constitutional
protections apply. See Meeropol v. Nizer, 560 F.2d 1061,
1066 (2d Cir. 1977) (rejecting Rosenberg children’s claims
that book about their parents had both defamed them
and portrayed them in a false light), cert. denied, 434
U.S. 1013 (1978). Accord, Braun v. Flynt, 726 F.2d 245,
250 (Sth Cir. 1984); Rinsley v. Brandt, 700 F.2d 1304,
1307 (10th Cir. 1983); Berry v. National Broadcasting
Co., 480 F.2d 428, 431 (8th Cir. 1973), cert. dismissed,
418 U.S. 911 (1974); Dresbach v. Doubleday & Co., 518
F. Supp. 1285, 1288 (D.D.C. 1981). Therefore, we must
address the federal constitutional question to determine
the appropriate standard of fault plaintiff should have
been required to meet and to evaluate plaintiff's proof
under that constitutional standard. In what follows we
explain why plaintiff's proof falls short, defeating her
cause against defendant.
lil Constitutional Issues
A. Public or Private Figure
To begin, the district court erroneously ruled in 1980
that the public figure question had application only to
plaintiff’s dismissed libel claim. Moreover, when Flynt
Distributing attempted to reopen this question on the
remaining causes of action prior to trial, the district court
refused to reconsider its earlier ruling. In our view the
971. Thus, the trial court implicitly recognized that the gravamen of
plaintiff's complaint for those publications was grounded in false light,
not commercial appropriation or right to publicity.
6164
23a
trial judge wrongly determined that Ms. Lerman was not
a public figure under Gertz v. Robert Welch, inc., 418
U.S. 323 (1974), and its progeny.
To decide whether Ms. Lerman is a public figure, we .
first consider the applicable rules. Discussion begins as it
must with New York Times Co., v. Sullivan, 376 U.S. 254
(1964). There, the Court held that a state cannot award
damages to a “public official” for a defamatory false-
hood concerning his official conduct, absent proof that
the statement was published with “actual malice.” Jd. at
279-80. In Curtis Publishing Co. v. Butts, 388 U.S. 130
(1967), the same standard of proof for recovery under
state libel laws was extended to plaintiffs who are “public
figures.” Jd. at 162-63 (Warren, C.J., concurring). When
a private individual seeks compensation for publication
of a defamatory falsehood, the states may define for
themselves the appropriate standard of fault, subject to
the constitutional minimum of negligence. Gertz v.
Robert Welch, Inc., supra, 418 U.S. at 347.
In rejecting the argument that Elmer Gertz, a reputable
lawyer, was a public figure, the Court held that only those
individuals who voluntarily inject themselves into a par-
ticular public controversy are considered limited purpose
public figures, /d. at 351-52. Emphasizing that the New
York Times standard does not hinge on whether the
Statement concerns a matter of public interest, the Su-
preme Court held that a cause celebre divorce in Florida
involving a prominent and wealthy couple was not a
“public controversy.” Time, Inc. v. Firestone, 424 U.S,
448, 454 (1975). Moreover, the fact that Mrs, Firestone
sought to obtain marital redress through a court proceed-
ing is not the kind of voluntary act or assumption of
prominence in the resoiution of public questions as to
render her a “public figure.” /d. at 454-55. Four years
later, the Court ruled that a person was not a public figure
6165
24a
merely because he refused to appear before a grand jury,
fully realizing that his refusal might attract publicity,
because he was believed to have information of interest to
the government relating to Soviet espionage. Wolston v.
Reader’s Digest Assn., Inc., 443 U.S. 157 (1979). Rather
than thrusting himself to the forefront of the public
controversy surrounding the extent of Soviet espionage in
the United States, the petitioner in Wolston was dragged
unwillingly into the controversy. /d. at 166. Again, be-
coming the recipient of Senator Proxmire’s Golden Fleece
Award as a result of the receipt of federal funds for
research projects did not make plaintiff a limited public
figure. Hutchinson v. Proxmire, 443 U.S. 111 (1979).
Although, like the petitioner in Gertz, Hutchinson was a
writer for professional journals, he did not thrust himself
or his views into the public eye to influence others, nor
did he invite public attention or have regular and continu-
ing access to the media. /d. at 135-36. The question in
each case is what is “the nature and extent of an individ-
ual’s participation in the particular controversy giving rise
to the defamation.” Gertz v. Robert Welch, Inc., 418
U.S. at 352; Wolston v. Reader’s Digest Assn., Inc., 443
U.S. at 167.
These holdings provide a frame to determine what
constitutes a “limited purpose sublic figure.” A defen-
dant must show the plaintiff has: (1) successfully invited
public attention to his views in an effort to influence
others prior to the incident that is the subject of litiga-
tion; (2) voluntarily injected himself into a public con-
troversy related to the subject of the litigation; (3)
assumed a position of prominence in the public con-
troversy; and (4) maintained regular and continuing ac-
cess to the media. Having ascertained what the basic test
is, we apply it.
The record before us reveals that Ms. Lerman has
achieved international renown as the author of nine
6166
ints
hte Sh
ie ad
25a
novels. Her books are decidedly controversial in nature
because of her firm conviction—made the focal point of
her comments to the press—that there is a pervasive
inequality in the treatment accorded females vis-a-vis
males. This topic greatly appeals to the public since her
books sell in the millions, are full of descriptions of sex,
including deviate sex and orgies, and are heavily laden
with four-letter words. Ms. Lerman is quick to point out
that some of her novels have been banned in Australia—a
distinction similar to being banned in Boston. She has
achieved a world-wide following, frequently appears as a
guest on national TV and readily grants interviews to the
mass media. On such occasions, one example of sexual
inequality that Ms. Lerman uses refers to the fact that
women more frequently than men appear unclad in films
and magazines. This is unfair she claims because men
have more opportunity to view undressed women than
vice versa. She advocates “equal nudes for all.”
Ms. Lerman’s photograph is prominently displayed on
the jackets of her novels that enjoy good reviews de-
spite—or perhaps, because of—their description as
“shocking,” “racy,” “sexy” and the like. She admits her
books are considered “pornographic.” Her first novel was
translated into 32 languages. Movies have been made of
several and, as earlier noted, the picture of the nude
actress that is the subject of this litigation came from the
film based on her novel “The World is Full of Married
Men.” Quite plainly Ms. Lerman is today in the forefront
of women writing about sex and what is perceived of as a‘
continuing double-standard in sexual mores. Thus, for
plaintiff, seeking publicity both for herself and her books
is part and parcel of her professional endeavors as a
writer. The record plainly reflects her undoubted success
in this effort. Her organized and ongoing effort to main-
tain media access, in order to call attention to her writings
and disseminate her views on current sexual standards,
6167
26a
helps to sell her novels and screenplays like the one
“commented upon” in the May 1980 Adelina.
No doubt defendant has shown that plaintiff success-
fully invited public attention to her views and has main-
tained continuing access to the media. Nonetheless, we
agree with the district court that Ms. Lerman is not that
rare person the’ Gertz decision identifies as an ali purpose
public figure. As the Court there noted, “Absent clear
evidence of general fame or notoriety in the community,
and pervasive involvement in the affairs of society, an
individual should not be deemed a public personality for
all aspects of his life.” Gertz v. Robert Welch, Inc., 418
U.S. at 351-52.
But, we believe Ms. Lerman is a limited purpose public
figure required to satisfy the New York Times standard of
fault. By voluntarily devoting herself to the public’s
interest in sexual mores, through extensive writing on this
topic, reaping profits and wide notoriety for herself in the
process, Ms. Lerman must be deemed to have purpose-
fuliy surrendered part of what would otherwise have been
her protectable privacy rights, at least those related in
some way to her involvement in writing her books and
screenplays. See James v. Gannett Co., 40 N.Y.2d 415,
423 (1976) (“The essential element underlying the cate-
gory of public figures is that the publicized person has
taken an affirmative step to attract public attention”).
The difficult question is whether Ms. Lerman injected
herself into a “public controversy” related to the offend-
ing publication. The district court rejected defendants’
argument that Ms. Lerman was a public figure for the
limited purpose of commenting on sex and nudity in
films. The court reasoned that such a topic is merely a
matter of interest, but not a true public controversy. We
disagree. The relations between the sexes and public
6168
Pe ET eT
27a
nudity are topics of continued and general public interest
and may be considered “public controversies” even
though not involving political debate or criticism of
public officials. A public “controversy” is any topic upon —
which sizeable segments of society have different,
strongly held views. Certainly various groups today have
vastly divergent views on the propriety of female or male
nudity in films and in the print media generally. In the
public controversies that daily swirl about—be they poli-
tics, pocketbook issues, or, as: here, contemporary stan-
dards regarding nudity—some plunge into the arena and
enter the fray. Plaintiff, as a controversial, outspoken
authoress and screenwriter advocating equal nudity, was
such a willing participant in this public controversy. Other
similarly situated individuais have been held to be limited
purpose public figures, Rose v. Koch, 278 Minn. 235, 154
N.W. 2d 409, 426 (1967) (a well-known author); Maule v.
NYM Corp., 76 A.D.2d 58, 62 (Ist Dep’t 1980) (writer
for Sports Illustrated), rev’d on other grounds, 54 N.Y.2d
880 (1981); Atkins v. Friedman, 49 A.D.2d 852 (1st Dep’t
1975) (physician who wrote books on dieting). We con-
clude therefore that plaintiff must be held to be a limited
purpose public figure. Bruno & Stillman, Inc. v. Globe
Newspaper Co., 633 F.2d 583, 592 (Ist Cir. 1980); Re-
liance Insurance Co. v. Barron’s, 442 F. Supp. 1341, 1346
(S.D.N.Y. 1977).
B. Newsworthiness for First Amendment Purposes
The district court adopted plaintiff’s argument that an
actual malice standard of fault does not apply even if
plaintiff is a public figure because the use was “com-
pletely exploitive” and outside the broad category of
matters of oublic interest and therefore not newsworthy.
This led it erroneously to conclude that the distributor
6169
28a
could be held strictly liable for disseminating the maga-
zine without treading on the First Amendment. On the
contrary, Adelina falls far short of crossing the line that
would cause it to forfeit First Amendment protection. It
contains no obscenity, Roth v. United States, 354 U.S.
476 (1957), child pornography, New York v. Ferber, 458
U.S. 747 (1982), or matters inciting to riot, Brandenburg
v. Ohio, 395 U.S. 444 (1969). The factual error in this
case would be actionable only if the distribution of
Adelina loses First Amendment protection under a stan-
dard analogous to that which causes libelous speech to
lose such protection. See Beauharnais v. Illinois, 343 U.S.
250, 266 (1952). We cannot accept a view that a publica-
tion must meet an independent standard of newsworthi-
ness to stand under the umbrella of First Amendment
protection. Even “vulgar” publications are entitled to
such guarantees. Winters v. New York, 333 U.S. 507, 518
(1948). It makes no difference that Adelina may have few
redeeming features, that it may express a point of view
far afield from what one might consider the community's
standard of decency, or that an ordinary reader may find
it distasteful. The compass of the First Amendment
covers a vast specirum of tastes, views, ideas and expres-
sions. Pring v. Penthouse Internationai, Lid., 695 F.2d
438, 443 (10th Cir. 1982), cert. denied, 103 S. Ct. 312
(1983). Accord, Jenkins v. Dell Publishing Co., 251 42d
447, 451 (3d Cir.), cert. denied, 357 U.S. 921 (1958);
Goelet v. Confidential, Inc., 5 A.D.2d 226, 229 (Ist Dep't
1958) (magazine capitalizing on intimate details of lives of
prominent individuals). To hold otherwise would draw a
tight noose around the throat of public discussion chok-
ing off media First Amendment rights.
The Adelina article unquestionably would have been
within the broad definition of a newsworthy matter or a
6170
29a
335-36 (“subjective awareness of probable falsity”). The
essential inquiry is whether those in charge of Flynt
Distributing had serious doubts about the accuracy of the
identification of Ms. Lerman in Adelina. See Pep v.
Newsweek, 553 F. Supp. 1000 (S.D.N.Y. 1983); Pirre v.
Printing Developments, Inc., 468 F. Supp. 1028, 1038-39
(S.D.N.Y. 1979). See also Vandenburg v. Newsweek, Inc.,
507 F.2d 1024, 1026 (Sth Cir. 1975) (actual malice “is not
a proposition that can be supported by a normative
conclusion that the publisher should have known of the
falsity of the statement”). Inasmuch as the district court
failed to instruct the jury that it must find Flynt Distrib-
uting to have acted with actual malice, the jury’s verdicts
must be reversed. Nevertheless, since the record is com-
plete with regard to Flynt Distributing’s knowledge and
conduct, both of which are necessary to prove a “know-
ing use” for punitive damages under § 51, we examine the
evidence to etermine whether a new trial is warranted.
2. Actual Malice in This Case
Although the trial court granted the plaintiff’s motion
for summary judgment and did not instruct the jury on
actual malice, it did put Ms. Lerman on notice of the
need for her to prove a “knowing use” under the statute
itself. Thus, plaintiff and her experienced counsel had
every incentive to uncover facts during discovery and to
present evidence at trial showing Flynt Distributing’s
knowledge or reckless disregard of the publisher’s false
report concerning Ms. Lerman. Such evidence of “know!
ing use” is identical to the evidence of actual malice.
Accordingly, we “make an independent examination of
the whole record ‘in order to make sure that a [verdict
finding actua! maiice] would not constitute a forbidden
6173
30a
Whether a distributor is held liable for false and defama-
tory matter or for false matter invading privacy, the
imposition of liability without adequate proof of fault
would unquestionably chill the exercise of distributors’
First Amendment rights. See Time, Inc. v. Hill, supra,
385 U.S. at 388-89; Geiger v. Dell Publ. Co., 719 F.2d
515, 518 (ist Cir. 1983); Bargar v. Playboy Enterprise,
Inc., 564 F. Supp. 1151, 1157 (N.D. Cal. 1983).
Obviously, the national distributor of hundreds of pe-
riodicals has no duty to monitor each issue of every
periodical it distributes. Such a rule would be an imper-
missible burden on the First Amendment. At the same
time a distributor as an integral part of the movement of
information from the creator to the reader—the distribu-
tor here was to receive 46% of the protit from the sale of
the magazine—cannot be entirely immune from liability.
When a distributor acts with the requisite scienter in
distributing materials defaming or invading the privacy of
a private figure it must be subject to liability. Lewis v.
Time, Inc., 83 F.R.D. 455, 464 (E.D.Cal. 1979). See
Suarez v. Underwood, 103 Misc.2d 445, 447 (Queens Cty.
Sup. Ct. 1980), aff'd, 84 App. Div.2d 787 (2d Dep't
1981). But, a public figure plaintiff may only recover
compensatory damages where a distributor acts with
“actual malice,” and no plaintuiff—public figure or
private individual—may recover punitive damages unless
the New York Times v. Sullivan standard is met.
To have acted with constitutional or actual malice, the
defendant must be shown to have had “a high degree of
awareness of [the statement’s] probable falsity,” Garrison
v. Louisiana, 379 U.S. 64, 74 (1964), or to have “in fact
entertained serious doubts as to the truth of his publica-
tion,” St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
See also Gertz v. Robert Welch, Inc., supra, 418 U.S. at
6172
en
3la
maiter of public interest or concern had Ms. Lerman in
fact been the “starlet” pictured. Ann Margret v. High
Society, 498 F. Supp. 401, 405 (S.D.N.Y. 1980); Davis v.
High Society, supra, 90 A.D. 2d at 383. That there was a —
factual error does not alter the subject matter of the
offending publication. As noted earlier, New York law
must yield in this context to First Amendment concerns
which protect the media from liability for such errors,
absent proof of fault. Courts are, and should be, reluc-
tant to attempt to define newsworthiness. Gaeta v. New
York News Inc., _.. N. Y.2d ___. (1984). The Supreme
Court in Gertz expressly warned against “committing this
task to the conscience of judges.” Gertz v. Robert Welch,
Inc., supra, 418 U.S. at 346. Cf. Regan v. Time, Inc., 52
U.S.L.W. 5084, 5086-87 (U.S. 1984) (nor should the task
be undertaken by legislators since a statute that attempts
to prohibit reproductions of United States obligations
unless made for newsworthy purposes is held violative of
the First Amendment). Rather, the factual error is only
actionable against defendant distributor if made with the
Gertz required fault. What then is the appropriate stan-
dard of fault in cases involving distributors?
C. Proof of Actual Malice
1. Actual Malice of Distributors
First Amendment guarantees have long been recognized
as protecting distributors of publications. Smith v. Cali-
fornia, 361 U.S. 147, 150 (1959); Winters v. New York,
supra, 333 U.S. at 509; Lovell v. City of Griffin, 303 U.S.
444, 452 (1937); Ex Parte Jackson, 96 U.S. 727, 733
(1877) (“Liberty of circulating is as essential to that
freedom as liberty of publishing; indeed, without the
circulation, the publication would be of little value.”)
6171
32a
intrusion on the field of free expression.’ " Bose Corpora-
tion v. Consumers Union of United States, 52 U.S.L.W.
4513, 4517 (1984) (quoting New York Times v. Sullivan,
supra). See Time v. Pape, 401 U.S. 279, 284 (1971); Hunt
v. Liberty Lobby, 720 F.2d 631, 643 (lith Cir. 1983);
Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.),
cert. denied, 434 U.S. 834 (1977); Buckley v. Littell, 539
F.2d 882, 888 (2d Cir. 1976), cert. denied, 429 U.S. 1062
(1977). While that constitutional duty does not permit us
to substitute our views for legitimate jury findings, see
Time, Inc. v. Hill, supra, 385 U.S. at 394 n.11, it does
require us to scrutinize the record closely. The question to
decide is whether the trial judge should have granied
summary judgment to the defendant based on the lack of
evidence of actual malice.
in the first place, plaintiff failed to offer proof suffi-
cient even to impose a duty on defendant Flynt Distribut-
ing to inquire as to the May 1980 issue and the district
court specifically found that there was no “knowing” use
under § 51 by defendant of plaintiff's name in that issue.
Further, there was no proof that any of defendant's
employees had reason to believe that Chuckleberry (the
publisher) would misidentify Ms. Lerman as the actress
pictured. Because we have determined that plaintiff is a
limited purpose public figure required to prove actual
malice for compensatory damages, the claim arising from
the May !980 issue must be dismissed.
Similarly, with respect to the June 1980 and January
1981 issues there is no evidence in the record showing that
Flynt Distributing knew or recklessly disregarded whether
these editions contained any mention of plaintiff, let
alone any factual error concerning her. As noted, “actual
malice” as is implied in that expression is a subjective test
focused on defendant's state of mind. See Herbert v.
6174
33a
Lando, 441 U.S. 153, 160 (1979). Flynt Distributing may
be held liable only if plaintiff presented clear and con-
vincing evidence that some high level employee of the
corporation acted with reckless disregard of the fact that
false matter had been published by Chuckleberry. The
only evidence pointing in that direction is the conceded
fact that Fiynt Distributing knew of plaintiff's lawsuit
against Chuckleberry and Publishers Distributing for the
May 1980 issue, plus a claimed failure thereafter by it to
investigate. Plaintiff cites no other evidence in her brief,
and careful examination of the voluminous record in this
case reveals none.
Absent are any facts demonstrating that anyone in the
defendant distributing company had a subjective aware-
ness of probable falsity. Notice of the lawsuit regarding
the May issue standing alone certainly is not clear and
convincing evidence as to knowledge for June and Janu-
ary, especially given the miniscule mention of plaintiff in
those issues. Moreover, mere failure to investigate, while
relevant, is also not itself sufficient to show actual malice.
See Hotchner v. Castilio-Puche, supra, 5$\ F.2d at 913;
Washington Post Co. v. Keough, 365 F.2d 965, 971 (D.C.
Cir. 1966), cert. denied, 385 U.S. 1011 (1967). Failure to
investigate is an especially weak criterion in the case of a
distributor of hundreds of publications. While distribu-
tors may know something of the contents of publications
that they contract to distribute, there is ordinarily little
reason for them to examine the scores of magazines
distributed. In sum, there is simply no evidence—which ‘
plaintiff had every incentive to develop to obtain punitive
damages—that any Flynt Distributing employee was
aware that the publisher's errors would reoccur. Conse-
quenily, we hold as a matter of law that a properly
instructed jury could not fairly and rationally conclude
6175
34a
upon clear and convincing evidence that this defendant's
uses were knowing or made with actual malice.
1V The Damage Awards
The jury awarded plaintiff a total of seven million
in compensatory damages, which the trial court
refused to reduce. No doubt such an enormous verdict
chills media First Amendment rights. But a verdict of this
size does more than chill an individual defendant's rights,
it deep-freezes that particular media defendant per-
manenily. Putting aside First Amendment implications of
“megaverdicts” frequently imposed by juries in media
cases, the compensatory damages awarded shock the
conscience of this Court. They are grossly excessive and
obviously a product of plaintiff's counsel's appeals to the
passion and prejudice of the jury. It cannot seriously be
contended that Ms. Lerman's lacerated feelings are worth
anything close to $7 million. No proof was offered that
she sought or needed professional help because of these
publications and the fact she completed a novel between
March and September in 1980 refutes her contentiva that
she was unable to work. In any event, damages under the
New York statute often are only nominal since they are
designed primarily to compensate for injury to feelings.
See Lombardo v. Doyle, Dane and Bernbach, inc., 58
A.D.2d 620, 621 (2d Dep't 1977). Applying California
law on facts somewhat analagous to those in the instant
case, $25,000 was found to be “substantial compensation
for mental anguish.” Clark v. Celeb. Publi. Inc., 530 F.
Supp. 979, 983 (S.D.N.Y. 1981). See also Pirre v. Printing
Development, inc., 468 F. Supp. 1028, 1038 (S.D.N-Y.
1979) (extremely sensitive plaintiff entitled to no more
than $45,000 for mental anguish); Myers v. U.S. Camera
6176
35a
Publi. Corp., 9 Misc. 2d 765, 768 (1957) ($1500 total
damages for publishing unauthorized full body nude
photograph of plaintiff).
Finally, we note that reputational damage to Ms. Ler-
man could not have been great. Only the readers of
Adelina, a magazine of relatively modest circulation that
Ms. Lerman describes as “sordid” and “obscene” would
have seen the offending material. In fact, given the
number of famous persons portrayed in this fashion, one
wonders whether such pictures are even capable of pro-
ducing genuine reputational harm. Even assuming the
word would get around to those whose esteem of plaintiff
would be diminished, the main source of publicity for the
pictures came not from the magazine's publication, but
from Ms. Lerman’s lawsuit and statements to the press.
The jury also awarded a total of $33 million in punitive
damages, more than plaintiff demanded in her complaint
and over six times greater than plaintiff's counsel re-
quested in his summation. This award also shocks our
conscience and reinforces our conclusion that the verdicts
represent appeals to passion or prejudice.
V CONCLUSION
The availability of damages depends on plaintiff's
ability to satisfy the actual malice standard of New York
Times v. Sultiven that plaintiff as a limited purpose
public figure was required to meet. Since Ms. Lerman
cannot present clear and convincing evidence of defen,
dant’s requisite fault with respect to the factual error
disseminated, the judgment awarding her ten million
dollars in compensatory and punitive damages is reversed
as a matter of law and her complaint against Flynt
Distributing is dismissed.
_
6177
36a
BonSAL, District Judge, concurring and dissenting.
I concur in much of the majority’s excellent opinion. |
agree that the plaintiff must be considered a limited
purpose public figure who has voluntarily injected herself
into an on-going controversy through her writings and
media appearances. I also agree with the majority that the
case of Davis v. High Society Magazine, Inc., 90 A.D.2d
374 (2d Dept. 1982) is “strikingly similar to this one.” In
Davis, as here, the trial court granted summary judgment
for the plaintiff without considering whether the defen-
dant had acted with actual malice. The Appellate Division
held that, as a limited purpose public figure, the plaintiff
had to establish that the defendant had acted with actual
malice in order to recover under New York Civil Rights
Law § 51. Finding insufficient evidence in the record to
establish that the defendant had acted with actual malice,
it reversed the trial court’s grant of summary judgment,
Stating:
[T]here is an element of plaintiff’s cause of action
which is in dispute and which cannot be resolved on
this motion. It is incumbent upon plaintiff to prove
at trial that defendants published the subject issue of
Celebrity Skin with actual malice . . . . Davis, at
383.
The court in Davis noted that “[t}he existence or absence
of actual malice ‘does not lend itself to summary disposi-
tion’ since it pertains to ‘a defendant’s state of mind.’ ”
Davis, at 384 (quoting Hutchinson v. Proxmire, 443 U.S.
111, 120 n.9 (1979)).
While I agree with the majority that the plaintiff here
has a heavy burden to establish actual malice, | do not
think that is sufficient reason to deny her the opportunity
a
6178
37a
to-do so. Therefore, | would remand the case to the trial
court to give her an opportunity for further discovery and
a trial on the issue of actual malice—whether defendant
acted with knowledge of falsity or in reckless disregard of
the truth.
6179
38a
Opinion of the United States District Court Southern
District of New York, dated July 31, 1980.
UNITED STATED DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK.
JACKIE COLLINS LERMAN,
Plaintiff,
against
CHUCKLEBERRY PUBLISHING INC., and PUBLISHERS
DISTRIBUTING CORPORATION,
Defendants.
80 Civ. 1658 (HFW)
728 Dated: 7/31/80
Appearances: (See last page).
HENRY F. WERKER, D.J.
This action for libel, invasion of privacy and violation
of the right of publicity was commenced by plaintiff
Jackie Collins Lerman against defendants Chuckleberry
Publishing Inc. (‘‘Chuckleberry’’) and Publishers
39a
Distributing Corporation (‘‘Publishers’’.' This case is
presently before the court on plaintiff’s motion for partial
summary judgment on her claim of invasion of privacy
under sections 50 and 51 of the New York Civil Rights
Law (McKinney 1976 & Supp. 1979-1980). Plaintiff also
moves for an expedited trial on the issue of damages.
Chuckleberry cross-moves to compel discovery.
FACTS
Chuckleberry and Publishers are, respectively, the
publisher and national distributor of a magazine entitled
Adelina. The cover of the May 1980 issue of Adelina bears
the headline ‘‘In the Nude From the Playmen Archives,”’
and lists, among others, the plaintiff’s name. At pages
117-20 of the issue, there is a section headed ‘‘Archives’’
which contains erotic and nude photographs of purport-
edly well-known actresses. At page 119, plaintiff’s name
appears in bold lettering accompanying photographs of a
naked woman and an orgy scene with two men and three
women. Underneath the ‘‘Jackie Collins’’ caption is the
statement that ‘‘Jackie is a newcomer to films and her fist
was the The World Is Full Of Married Men, from the
novel by the late Jacqueline Susann. There is an orgy scene
. .. [aJnd after that, what can a starlet do for an encore?’’
It is clear that plaintiff does not in fact appear in any of
i?
'Piaintiff is a citizen of the United Kingdom residing in London,
England. Chuckleberry and Publishers are New York corporations.
Jurisdiction is premised on diversity of citizenship with an amount in
controversy exceeding $10,000. 28 U.S.C. § 1332. Although defend-
ants claim that a question of fact exists as to plaintiff’s citizenship,
they have not adduced any evidence that would dispute plaintiff's
claim that she is a British citizen.
40a
the photographs,’ and it is undisputed that plaintiff is not
an actress but rather a successful novelist and screen-
writer. She wrote the screenplay for the film The World Is
Full Of Married Men which was based on a novel written
by her and not by the late Jacqueline Susann.
Plaintiff asserts that she never granted defendants con-
sent, written or otherwise, to use her name. The defen-
dants do not deny that they never obtained a written
release from plaintiff, Chuckleberry, however, states that
the material which is the subject of this lawsuit was
previously published in Italy by its Italian licensor, Tattilo
Editrice SPA, in the August 1979 issue of Playmen.
Chuckleberry’s Italian licensor purportedly obtained the
photographs and text in precisely the form in which they
appear in Adelina from the Luxembourg office of Media
Press International (‘‘MPI’’), a public relations firm. The
material allegedly was received and distributed by MPI in
connection with the promotion of the film The World Is
Full Of Married Men. Chuckleberry states that it assumed
that MPI had releases for the use of this material. Accord-
ing to Chuckleberry, MPI insists that all necessary releases
were obtained with respect to the distribution of the pic-
tures in question. However, MPI apparently refuses to
furnish Chuckleberry with any such release by plaintiff.
Affid. of Walter Zacharius, President of Chuckleberry,
sworn to May 12, 1980, at 3-4.
This action was commenced by the filing of a complaint
on March 24, 1980. An order to show cause was issued the
?Although defendants in their Rule 9(g) statement claim that a
question of fact exists as to whether or not the magazine in question
contains photographs of plaintiff, since they have not adduced any
material to seriously dispute plaintiff’s sworn statement that she is not
in any of the photographs in the magazine, defendants have not
demonstrated that such a question of fact does indeed exist. Fed. R.
Civ. P. 56(e); SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d
Cir. 1979).
4la
same day, and following a hearing on March 31, 1980, a
preliminary injunction was granted by this court.
Thereafter, plaintiff filed and served an amended com-
plaint. The instant motions followed.
DISCUSSION
In moving for summary judgment on her invasion of
privacy claim, plaintiff argues that the defendants used
her name in the May 1980 issue of Adelina for purposes of
trade without her consent. In opposing the motion, the
defendants rely principally on two arguments: (1) because
the plaintiff is a public figure and because her name was
used in connection with a ‘‘newsworthy’’ event, they can-
not be liable for publishing her name unless the plaintiff
establishes malice, citing inter alia Time, Inc. v. Hill, 385
U.S. 374 (1967), and (2) the plaintiff purportedly delivered
a release in connection with similar or identical material
published in an Italian magazine. In connection with the
latter argument, defendants contend that plaintiff has
refused to cooperate with discovery requests, and that they
therefore have not been able to ascertain certain facts, in-
cluding whether or not a prior release had been granted to
MPI.
‘Section 51 of the Civil Rights Law provides in pertinent
part:
Any person whose name, portrait or picture is
used within this state for advertising purposes or
for the purposes of trade without the written con-
sent first obtained [of such person] 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 sus-
tained by reason of such use....
42a
N.Y. Civil Rights Law § 51 (McKinney Supp. 1979-1980).
To make out a claim under section 51, a plaintiff must
establish (1) that the defendant used plaintiff’s name, por-
trait or picture within the state, (2) for purposes of adver-
tising or trade, and (3) without first obtaining plaintiff's
written consent.
It is clear that the defendants did use plaintiff’s name
within the state. The May 1980 issue of Adelina bore
plaintiff’s name on the cover and her name was used again
on page 119 of that issue. The issue was published and
distributed throughout the United States, including New
York. Hence, the first element of a section 51 cause of ac-
tion has been established.
Defendants’ use of plaintiff’s name on the cover of
Adelina and associated in the ‘‘Archives’’ section with
photographs of a nude woman and an orgy scene purport-
ing to include plaintiff is unquestionably a commercial use
for the purpose of trade within the meaning of the statute.
In Wallace v. Weiss, 82 Misc. 2d 1053, 372 N.Y.S.2d 416
(Sup. Ct. Mon. Co. 1975), the court observed that:
Where a photograph is not used in connection
with an advertisement and does not illustrate an ar-
ticle on a matter of public interest, but appears in a
periodical primarily to enhance the sales of the
periodical, the use may be considered a commercial
one for the purpose of trade. Thus, it camnot be
doubted that the subject of a centerfold has a cause
of action against a magazine for the unauthorized
use of his photograph.
82 Misc. 2d at 1055, 372 N.Y.S.2d at 419 (citation omit-
ted).
It is the established law of New York that the
unauthorized use of an individual’s name or picture is not
for ‘‘a trade purpose,”’ and thus not violative of section
43a
51, if the name or picture is used in connection with an
item of news or some other newsworthy event. Gautier v.
Pro-Football, Inc., 304 N.Y. 354, 359, 107 N.E.2d 485,
488 (1952). Accord, Sidis v. F-R Pub. Corp., 113 F.2d 806
(2d Cir.), cert. denied, 311 U.S. 711 (1940). In the instant
action, however, there is no such informational or
newsworthy dimension to Chuckleberry’s unauthorized
use of plaintiff’s name. Rather, the plaintiff’s name was
used solely for the purpose of enhancing the sales of the
magazine.
In Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y.
1978), which involved the unauthorized use of plaintiff
Muhammed Ali’s likeness in Playgir/ magazine, the court
stated that:
The picture is a dramatization, an illustration
falling somewhere between representational art and
cartoon, and is accompanied by a plainly fictional
and allegedly libellous bit of doggerel. Defendants
cannot be said to have presented ‘the unem-
broidered dissemination of facts’ or ‘the unvar-
nished, unfictionalized truth . . . .” The nude por-
trait was clearly included in the magazine solely
‘**for purposes of trade—e.g., merely to attract at-
tention.”’
427 F. Supp. at 727 (citiations omitted). In the instant
case, Chuckleberry’s use of plaintiff’s name is similarly
fictionalized in that plaintiff does not appear in any of the
photographs which were represented to be her, and the use
of her name was for a commercially exploitive effect
rather than for the purpose of informing the public about
a newsworthy event. There is no question that plaintiff’s
name was used for purposes of trade.
44a
The third and final element is the absence of consent. It
is undisputed that plaintiff did not give the defendants any
consent, written or otherwise, to use her name in Adelina,
and in my opinion it is irrelevant whether or not plaintiff
gave a release to MPI. Even if it is assumed that plaintiff
did give a release to MPI in Luxemburg for material
published in Italy, that release could not be relied on by
defendants with respect to their publication of a different
magazine in New York. Sections 50 and 51 clearly require
a person or company desiring to use a person’s name, por-
trait or picture for trade or advertising purposes to /irst
obtain that person's written consent. In the case at bar, the
defendants did not first obtain the plaintiff’s written con-
sent to their usage of her name; the fact that she may have
granted a release to some other company is immaterial.
Although the issue is not pursued in the defendants’
joint memorandum of law, the defendant Publishers
maintains that since it merely distributed the issue of
Adelina in question, it did not ‘‘use’’ plaintiff’s name
within the meaning of section 51 and therefore is not sub-
ject to liability. This position, however, must be rejected.
Publishers presumably distributed the magazine for
profit; since plaintiff’s name appeared on the cover of and
in the magazine, Publishers ‘‘used’’ her name. The fact
that Publishers may not have known that the plaintiff’s
name was being used without her consent and in the man-
ner in which it was used is irrelevant to the questions of
compensatory damages and injunctive relief. That
knowledge is not an element of a cause of action for
damages and injunctive relief is clear from the fact that the
statute expressly requires knowledge for exemplary
damages:
[Ijf the defendant shall have knowingly used
such person’s name, portrait or picture [for adver-
tising or trade purposes without first obtaining
4Sa
written consent], the jury, in its discretion, may
award exemplary damages.
N.Y. Civil Rights Law §51 (McKinney Supp. 1979-1980).
The clear inference is that a plaintiff need not establish
knowledge to obtain compensatory and injunctive relief.
Accordingly, Publishers is not relieved of liability merely
because it purportedly did not know that plaintiff’s name
was used without ‘consent and in the manner that it was
used.
CONCLUSION
The plaintiff having submitted a sworn affidavit and ex-
hibits demonstrating that she is entitled to relief, and the
defendants having failed to show that genuine issues of
fact exist as to the claim of statutory invasion of privacy,
the motion for partial summary judgment is granted.
Chuckleberry’s cross-motion to compel discovery is
granted. Plaintiff is directed to appear for the taking of
her deposition and to produce or object to the documents
requested by Chuckleberry by September 15, 1980.
Plaintiff’s request for an expedited trial is at this junc-
ture denied. Counsel for the parties are directed to appear
for a pretrial conference on September 26, 1980 at 12 noon
in Room 2603 of the U.S. Courthouse.
So ordered.
Dated: New York, New York
July 31, 1980
HENRY F. WERKER
U.S.D.J.
46a
Memorandum Decision, United States District Court,
Southern District of New York, dated September 2, 1980.
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF NEW YORK.
JACKIE COLLINS LERMAN,
Plaintiff,
against
CHUCKLEBERRY PUBLISHING, INC., and PUBLISHERS
DISTRIBUTING CORPORATION,
Defendarts.
80 Civ. 1658 (HFW)
7285 Dated: 9/2/80
7
Appearances: (See last page).
HENRY F. WERKER, D. J.:
This is a motion for reconsideration of that portion of
my opinion and order dated July 31, 1980 which granted
summary judgment for the plaintiff Jackie Collins Ler-
man on her invasion of privacy claim against the defend-
ant Publishers Distributing Corporation (‘‘Publishers’’).
Publishers contends that a defendant cannot be liable
47a
under section 51 of the New York Civil Rights Law unless
he has knowledge that a plaintiff’s name or likeness is be-
ing used without consent for trade purposes. Publishers
thus finds fault with the court’s holding that it is liable
under section 51 even though it may not have known all
the circumstances surrounding the publication of
plaintiff's name in Adelina magazine.
At the outset, the court notes that the authorities relied
on by Publishers in support of this motion were not
brought to the court’s attention in the papers in support of
the original motion. Indeed, the argument that Publishers
cannot be liable since its role was merely that of a
distributor was not pursued at all in the memorandum of
law accompanying the original motion papers. Yet, most
of the authorities presently relied on by Publishers were
available to it at that time, and Publishers certainly had an
opportunity then to raise the arguments raised now.’
Hence, Publishers current efforts to avoid liability are
somewhat untimely, and this would be reason enough to
deny the motion.
In any event, the arguments presently raised must be re-
jected even when considered on their merits. In contending
that a distributor’s liability is narrowly limited, Publishers
relies primarily on defamation cases and authorities. Since
the court’s July 31st opinion was concerned only with
plaintiff’s statutory invasion of privacy claim, these
defamation cases and authorities are not on point.
Publishers has not cited any case involving the liability of
a distributor (who was not also the publisher) under sec-
tions 50 and $1 of the New York Civil Rights Law.
Moreover, Publishers fails to address the fact that while
the language of section 51 expressly requires knowledge
for exemplary damages, no such requirement is set forth
‘It should be pointed out that Publishers’ attorneys on this mo-
tion for reconsideration were not involved on the original motion.
48a
for compensatory and injunctive relief. In the absence of
caselaw holding otherwise, section 51 can only be read to
require knowledge for exemplary damages but not for
compensatory and injunctive relief.
Publishers argues strenuously that there cannot be
liability under sections 50 and 51 absent proof of fault.
The court does not disagree with this proposition.
However, it is clear that fault has been established. The
issue of fault or intent to capitalize on a plaintiff's name is
part of the element of use for purposes of advertising or
trade. A defendant who uses a plaintiff's name coinciden-
tally has no intent to capitalize on the plaintiff's name,
and thus is not using the name for purposes of trade within
the meaning of the statute. In the instant case, the defend-
ant Chuckleberry Publishing, Inc. (‘‘Chuckleberry’’) did
indeed use the plaintiff's name for purposes of trade,
clearly with the intent to capitalize on her name. To the ex-
tent that Publishers was involved as an agent of Chuckle-
berry in distributing the magazine, Chuckleberry’s fault
must be imputed to Publishers and Publishers must be
responsible for any injury to the plaintiff. If, as between
Publishers and Chuckleberry, Publishers is the less
culpable party, that fact will be reflected in any award and
apportionment of damages.
Publishers renews the argument pressed on the original
motion that the plaintiff is a public figure and that conse-
quently recovery is barred absent a showing of actual
malice. Even assuming the plaintiff is a public figure, this
argument must nevertheless be rejected. To recover under
the New York invasion of privacy statute, a public figure
who is the subject of a false news report or other incorrect
informational presentation must indeed prove knowledge
of the falsity or a reckless disregard of the truth. Time,
Inc. v. Hill, 385 U.S. 374, 387-88 (1967); Spahn v. Julian
Messner, Inc., 21 N.Y .2d 124, 127, 233 N.E.2d 840, 842,
49a
286 N.¥.S.2d 832, 834 (1967), appeal dismissed, 393 U.S.
1046 (1969). However, a person is not stripped of his right
of privacy merely because he becomes a public figure,
Reilly v. Rapperswill Corp., 50 App. Div. 2d 342, 345, 377
N.Y.S.2d 488, 491-92 (ist Dep't 1975); Youssoupoff v.
Columbia Broadcasting System, Inc., 48 Misc. 2d 700,
703, 265 N.Y.S.2d 754, 758 (1965), and the actual malice
requirement does not extend to situations where, as here,
the name of a public figure is being used in a completely
exploitive, commercial fashion. See Ali v. Playgirl, Inc.,
447 F. Supp. 723, 727-28 (S.D.N.Y. 1978), and cases cited
therein. Compare Ann-Margaret v. High Society Maga-
zine, Inc., No. 80 Civ. 27 (GLG) (S.D.N.Y. Aug. 27,
1980) (plaintiff, a well-known actress, chose to appear
partially nude in a motion picture; reprint of a photograph
of that scene in defendants’ ‘‘tacky’’ but not ‘‘porno-
graphic’’ magazine did not give rise to a cause of action
under section 51).
The motion for reconsideration is denied.
So Ordered.
Dated: New York, New York
September 2, 1980
HENRY F. WERKER
U.S.D.J.
Appearances:
Attorneys for Plaintiff, Grutman & Schafrann, £05
Park Aver ..> New York, New York 10022 and Felix C.
Ziffer, 122 « ast 78th Street, New York, New York 10021
by: Jeffrey H. Daichman of counsel.
Attorneys for Publishers, Greenbaum, Wolff & Ernst,
437 Madison Avenue, New York, New York 10022 by:
Marci B. Paul, Jerry Simon Chasen of counsel.
)
50a
Opinion of the United States District Court, Southern
District of New York, dated August 17, 1981.
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF NEW YORK.
@
JACKIE COLLINS LERMAN,
Plaintiff,
against
CHUCKLEBERRY PUBLISHING, INC., and PUBLISHERS
DISTRIBUTING CORPORATION,
Defendants.
80 Civ. 1658
August 17, 1981
e
Appearances: (See last page).
HENRY F. WERKER, D. J.:
This action for libel, invasion of privacy and violation
of the right of publicity was brought by plaintiff Jackie
Collins Lerman, a citizen of the United Kingdom, against
New York defendants Chuckleberry Publishing Inc.
(‘‘Chuckleberry’’) and Publishers Distributing Corpora-
tion (‘‘PDC’’). This Court granted plaintiff’s motions for
‘ee ee ees
Sla
a preliminary injunction on March 31, 1980 and for partial
summary judgment on her invasion of privacy claims
against defendants under §§ 50 and 51 of the New York
Civil Rights Law on July 3, 1980. Subsequently, this Court
denied defendants’ motion for reconsideration on
September 2, 1980. Lerman v. Chuckleberry Publishing
Co., 496 F. Supp. 1105 (S.D.N.Y. 1980).
This case is presently before the court on several mo-
tions. First, plaintiff moves for leave to amend her
original complaint pursuant to Fed. R. Civ. P. 15(a).
Second, defendants PDC and Chuckleberry move for
summary judgment pursuant to Fed. R. Civ. P. 56 on the
issues Of libel and violation of the right of publicity.
Third, plaintiff moves, pursuant to Fed. R. Civ. P. 37 for
an order striking the answer and counterclaim of defend-
ant Chuckleberry, entering a default judgment against
Chuckleberry and awarding plaintiff the reasonable ex-
penses, including attorney’s fees, caused by the failure of
Chuckleberry to comply with discovery orders in this ac-
tion. Finally, defendant PDC cross moves for ai. order,
pursuant to Fed. R. Civ. P. 37, 30, 42, 45 and 55 to
preclude co-defendant Chuckleberry from opposing
PDC’s cross-claim for indemnity and ordering that judg-
ment be entered thereupon if PDC is found liable to plain-
tiff; awarding PDC attorneys’ fees in the amount of
$1,000; severing the claims of plaintiff against PDC from
plaintiff’s claims against Chuckleberry for trial; and stay-
ing trial against PDC pending an inquest on damages
against Chuckleberry.
This action arises from the publication of a picture of a
nude woman, incorrectly identified as plaintiff, in the
May, 1980 issue of Adelina, and the publication of plain-
tiff’s name on the cover of Adelina under the heading ‘‘In
the Nude’’ from the Playmen Archives.’’ The May, 1980
issue of Adelina was published and distributed by defend-
52a
ants Chuckleberry and PDC respectively. The details of
the dispute between these parties are set forth in this
court’s decision dated July 3, 1980, Lerman vy.
Chuckleberry Publishing Co., 496 F.Supp. 1105
(S.D.N.Y., 1980), and this decision assumes familiarity
with the prior opinion.
PLAINTIFF’S MOTION TO AMEND THE COMPLAINT
Plaintiff’s Rule 15(a) motion for leave to amend the
complaint is based on the republication, without
plaintiff’s consent, of the cover of the May, 1980 issue of
Adelina, subsequent to the commencement of this lawsuit,
in advertisements for the sale of Adelina in the June, 1980
and January, 1981 issues of Adelina and in the
February/March, 1981 issue of Rooster, the new title of
Adelina. The statement ‘‘in the Nude from the Playmen
Archives . . . Jackie Collins’’ is clearly visible in the adver-
tisements.
Although plaintiff has moved to amend the complaint it
appears that the causes of action she seeks to assert are
based on events arising after the date the first amended
pleading was filed. Thus, the motion to amend will be
treated as a motion to serve a supplemental! pleading pur-
suant to Fed. R. Civ. P. 15(d).
Defendant PDC opposes plaintiff’s motion on four
grounds: (1) that plaintiff failed to comply with Civil Rule
3(b) by bringing her motion by notice and affidavit with
no supporting memorandum of law; (2) that the additional
claims are legally insufficient; (3) that plaintiff has unduly
delayed in filing this motion; and (4) that PDC will suffer
prejudice if this court grants plaintiff leave to amend. I do
not find any of these grounds sufficiently compelling and
grant plaintiff leave to supplement her original complaint.
Under Rule 15(d), the court in its determination may grant
53a
leave to file a supplemental pleading at any time during
which the proceeding is before the court, when to do so
‘‘will promote the economic and speedy dispositiou of the
entire controversy between the parties, will not cause un-
due delay or trial inconvenience, and will not prejudice the
rights of any of the other parties to the action.’’ C. Wright
& A. Miller, 6 Federal Practice and Procedure § 1504
(1971).
While a failure to ‘‘serve and file with the motion papers
a memorandum setting forth the points and authorities
relied on . . . may be deemed sufficient cause for the denial
of the motion’”’ in appropriate cases, Civil Rule 3(b), I do
not find this to be such a case. This motion was brought to
the court’s attention by letter and subsequently discussed
at a pretrial conference held on March 27, 1981 at which
time the court indicated that plaintiff’s motion to amend
would be favorably entertained. Under the circumstances,
denial of the motion would be inappropriate.
PDC’s arguments addressing the sufficiency of the pro-
posed supplements to the complaint are unavailing on the
instant motion. Unless a proposed amendment is clearly
frivolous or legally insufficient on its face, the substantive
merits of a claim or defense should not be considered on a
moticn to amend. Nyscoseal, Inc. v. Parke, Davis & Co.,
28 F.R.D. 24, 25 (S.D.N.Y. 1961). None of plaintiff’s
claims here appear to be frivolous. Moreover, PDC’s
argument that it was not the distributor of the June, 1980
issue of Adelina is a question of fact to be determined on
the merits and not at this stage of the litigation.
In addition, it does not appear that plaintiff has unduly
delayed in making this motion. The cover of Adelina on
which plaintiff’s name appeared was republished three
times subsequent to the granting of the preliminary injunc-
tion and the filing of the original complaint, with the last
republication occurring in January 1981. Plaintiff's claims
54a
concerning the republications hardly present new issues as
PDC argues. Rather, these additional claims arise out of
the same series of transactions and simply conform the
pleadings to the evidence subsequently brought to light.
Furthermore, as the motion to amend was made while
summary judgment motions were pending before the
court, PDC’s allegation that plaintiff has purposely
waited ‘‘until the eve of trial’’ to move for leave to amend
is without merit. Finally, PDC does not claim that it will
be prejudiced in any particular way such as extensive addi-
tional discovery, inability to prepare a case on the issues,
or the added expense or burden of a more complicated and
lengthy trial. In light of the above, plaintiff’s motion to
supplement the complaint is granted.
MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is to be granted only where there is
no genuine issue of material fact. SEC v. Research
Automation Corp., 585 F.2d 31 (2d Cir. 1978). The
evidence presented must be considered in the light most
favorable to the nonmoving party ‘‘with the burden on the
moving party to demonstrate the absence of any factual
issue genuinely in dispute.’’ Heyman v. Commerce and In-
dustry Insurance Co., 524 F.2d 1317, 1320 (2d Cir. 1975).
RIGHT OF PUBLICITY
Courts in this circuit, interpreting New York law, have
recognized a common law ‘“‘right of publicity’’ as distinct
from the statutory right of privacy under §§50 and 51 of
the New York Civil Rights Law. Haelan Laboratories,
Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.),
cert. denied, 346 U.S. 816 (1953); Ali v. Playgirl, Inc., 447
F. Supp. 723, 728 (S.D.N.Y. 1978); Nimmer, The Right of
5Sa
Privacy, 19 Law & Contemp. Prob. 203 (1954). The right
of publicity comprises a person’s right to own, protect and
commercially exploit his own name, likeness and persona.
In Zacchini v. Scripps-Howard Broadcasting Co., 433
U.S. 562, 576 (1977), the Supreme Court noted that the
State’s interest in protecting an individual’s right of
publicity ‘‘ ‘is the straightforward one of preventing un-
just enrichment by the theft of good will. No social pur-
pose is served by having the defendant get free some aspect
of the plaintiff that would have market value and for
which he would normally pay.’ ’’ Jd. (quoting Kalven,
Privacy in Tort Law—Were Warren and Brandeis
Wrong?, 31 Law and Contemp. Prob. 326, 331 (1966)).
An individual claiming a violation of his right of
publicity must show: (1) that his name or likeness has
publicity value; (2) that he himself has ‘‘exploited’’ his
name or likeness by acting ‘‘in such a way as to evidence
his . . . own recognition of the extrinsic commercial value
of his . . . name or likeness, and manifested that recogni-
tion in some overt manner . . .’’ Hicks v. Casablanca
Records, 464 F. Supp. 426, 429 (S.D.N.Y. 1978); see Fac-
tors Etc., Inc. v. Creative Card Co., 444 F. Supp. 279, 283
(S.D.N.Y. 1977); Factors, Etc., Inc. v. Pro Arts, Inc., 444
F. Supp. 288 (S.D.N.Y. 1977), aff'd, 579 F.2d 215 (2d Cir.
1978), cert. denied, 440 U.S. 908 (1979); and (3) that
defendant has appropriated this right of publicity, without
consent, for advertising purposes or for the purposes of
trade. Ann-Margret v. High Society Magazine, Inc., 498
F. Supp. 401, 406 (S.D.N.Y. 1980).
A close scrutiny of the numerous press releases, inter-
views, and newspaper and magazine articles written about
plaintiff Jackie Collins Lerman leads me to conclude that
the name and persona of this celebrated novelist and
screenwriter, whose picture, at one time, graced even the
subway stations of New York, is commercially valuable,
56a
or, stated differently, has publicity value. Thus, plaintiff
has established the first element of the cause of action.
Plaintiff’s use of her name and likeness on posters, on the
jackets of her novels and in interviews in connection with
the marketing of her books and screenplays sufficiently
establishes the second element of the cause of action, self-
exploitation for the purposes of her claimed right of pub-
licity.
The third element of plaintiff’s claim, use of plaintiff’s
likeness by defendants for purposes of trade, has already
been determined by this court. In granting plaintiff’s mo-
tion for partial summary judgment on the issue of inva-
sion of privacy, defendants’ use of plaintif®’s name in the
May, 1980 issue of Adelina was found to be ‘solely for the
purpose of enhancing the saies of the magazines .. . fora
commercially exploitive effect rather than for the purpose
of informing the public about a newsworthy event.’’ Ler-
man v. Chuckleberry Publishing, Inc., 496 F.Supp. at
1108.
Having concluded that no genuine issues of fact exist
with regard to plaintiff’s cause of action for violation of
wer right of publicity, I grant summary judgment in favor
of plaintiff on this claim as a matter of law. PDC’s motion
and Chuckleberry’s cross-motion' for summary judgment
pursuant to Fed. R. Civ. P. 56 on the issue of right of
publicity are denied.
LIBEL
Whether the plaintiff in a libel action is a public or
privaie figure is a question of law to be determined by the
court. Wolston v. Reader’s Digest Association, 578 F.2d
427, 429 (D.C. Cir. 1978), rev’d on other grounds, 443
‘Chuckleberry has not submitted its own arguments or legal
authorities but relies instead on the papers submitted by PDC.
a
—
57a
U.S. 157 (1979); Hotchner v. Castillo-Puche, 404 F. Supp.
1041, 1045 (S.D.N.Y. 1975), rev’d on other grounds, $51
F.2d 910 (2d Cir. 1977).
Defendant PDC contends that Jackie Collins Lerman is
a public figure for purposes of her libel claim and thus the
standard to be applied in determining defendants’ poten-
tial liability is that of ‘‘actual malice’’ as set forth in New
York Times v. Sullivan, 376 U.S. 254, 279-80 (1964); see
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
Under the New York Times test, a public figure may
recover damages for libel only if he can prove with ‘‘con-
vincing clarity’? that the defamatory publication ‘‘was
made with ‘actual malice’ - that is, with knowledge that it
was false or with reckless disregard of whether it was false
or not.’’ /d. Characterizing ‘‘(t)hose who, by reason of the
notoriety of their achievements or the vigor and success
with which they seek the public’s attention’’ as public
figures, the Court, in Gertz v. Robert Welch, Inc., 418
U.S. 323, 342 (1974), delineated two classes of public
figures to which the ‘‘actual malice’’ standard applies. The
first is public figures for all purposes, or those who have
achieved ‘‘pervasive fame or notoriety.’’ The second is
public figures ‘‘for a limited range of issues,’’ or those
who voluntarily inject themselves or are drawn into the
forefront of a ‘‘public controversy.’’ [In this latter class of
‘limited purpose’’ public figures, the relevant examina-
tion turns on ‘“‘the nature and extent of an individual’s
participation in the particular controversy giving rise to
the defamation.’ Gertz v. Robert Weich, Inc., 418 U.S. at
352; Wolston v. Reader’s Digest Association, Inc., 443
U.S. 157, 167 (1979).
PDC concedes that although Jackie Collins Lerman is
well-known in some circles, not having achieved ‘“‘general
fame or notoriety in the community and pervasive involve-
ment in the affairs of society,’’ Gertz v. Robert Welch,
58a
Inc., 418 U.S. at 351-52, she cannot be considered ‘‘one of
that small group of individuals who are public figures for
all purposes.’’ Wolston v. Reader’s Digest Association,
Inc., 443 U.S. 157, 165 (1979). Instead, PDC argues that
plaintiff is a limited purpose public figure because she has
“thrust [herself] to the forefront of [a] particular public
[controversy] in order to influence the resolution of the
issues involved.’’ Gertz v. Robert Welch, Inc., 418 U.S. at
345. According to PDC, plaintiff’s status as the writer of
standard, rather pedestrian pornography and her frank
discussions of sexuality in interviews in connection with
her books make plaintiff a public figure for the limited
purpose of promoting, publicizing and selling sex.
As recently reiterated by the Supreme Court, is it the
‘‘particular controversy giving rise to the defamation’’
that must be considered in analyzing a libel plaintiff's
status. Wolston v. Reader’s Digest Association, Inc., 443
U.S. at 167. In this case the defamation arose from a pic-
torial essay entitled ‘‘Archives’’ in the May, 1980 issue of
the magazine Adelina. The article purports to display
erotic and nude photographs of well-known actresses who,
‘in the coming of age of American film-making - and
American audiences - . . ., were given the opportunity to
free their natural ability to express sexuality.’’ Thus was
presented ‘‘the pleasing result of this liberated attitude.’’
This introduction to the pictorial essay indicates that the
particular public controversy giving rise to the defamation
in this case, if it can be said that one exists at all, concerns
the sexual liberation of actresses in American film. We
must now examine whether this can be considered a public
controversy and if so, whether plaintiff has thrust herself
to the forefront of the controversy.
A public controversy is not simply a matter of in-
terest to the public; it must be a real dispute, the
59a
outcome of which affects the general public or
some segment of it in an appreciable way... .
[E}ssentially private concerns or disagreements do
not become public controversies simply because
they attract attention. Time Inc. v. Firestone, 424
U.S. 448, 454-55 . . . (1976). Rather, a public con-
troversy is a dispute that in fact has received public
attention because its ramifications will be felt by
persons who are not direct participants.
Courts must exercise care in deciding what is a
public controversy. Newsworthiness alone will not
suffice, ....
Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287,
1296 (D.C. Cir. 1980), cert. denied, 101 S. Ct. 266 (1980).
It is difficult to conclude that the issue of sexual libera-
tion of actresses in American film is more than a matter of
general public interest that may be newsworthy. In my
opinion, it simply cannot be said that there is a real dispute
with respect to this matter, the outcome of which affects
the general public or some segment in an appreciable way.
Indeed, public concern about the sexual liberation of ac-
tresses in American film certainly is no greater than the
concern ‘‘shared by most’’ about the expenditure of public
funds by federal agencies which was held to be insufficient
to make the plaintiff in Hutchinson v. Proxmire, 443 U.S.
111 (1979), a public figure.
Furthermore, Lerman ‘‘at no time assumed any role of
public prominence in the broad question of concern,”’ id.
at 135, if one can be said to exist, about the sexuality of ac-
tresses in American film. Lerman did not write about the
sexual liberation of actresses on the screen and certainly
did not inject her views into a controversy on this topic.
Lerman herself never modeled and although she had a
brief acting career, it does not appear that she ever ap-
60a
peared nude on the stage or the screen. Finally, although
Lerman was photographed on several occasions for
publicity purposes, she was never photographed in the
nude.
Defendant's contention that plaintiff is a public figure
for the limited purpose of promoting, publicizing and sell-
ing sex must be rejected. First, as discussed above, such a
general characterization of the public controversy does not
isolate with the required particularity, the controversy
which gave rise to the defamation in this case. Second, the
consequence of adopting defendants’ analysis would be to
expose any prominent author of novels about human sex-
uality who engages in conventional promotional activities
to publicize them to the risk that intimate details of his
personal life may be disclosed falsely by a news media
clethed with the protections of 7imes v. Sullivan and its
progeny. This result would be improper where the author
has not injected his personal conduct or his own nudity
into the public discussion. Furthermore, such an approach
would undermine the legitimate interests of the states in
protecting their citizenry from ‘‘the harm inflicted . . . by
defamatory falsehood.’’ Gertz v. Robert Welch, Inc., 418
U.S. at 341.
**had acquired the materials from an. . . agent of
Media Press International. . . . Our licensor has
dealt with this company over a period of ten years
and has never had an incident in which a claim was
made with respect to materials published that a
prior consent had not been obtained. Therefore,
when our licensor published the materials in
August 1979, they had every reason to believe that
said publication was in all respects legally proper.
When we rep iblished said materials, we, likewise
had reason to believe that we had a full and com-
plete legal right to do so. . . .”"
6la
Id. at 4 9.
From the foregoing, it appears that Chuckleberry was
the republisher of the defamation originally published in
Playmen. Accordingly, under New York law, it was en-
titled to rely on the research of the publisher, Tatillo
Editrice SPA, unless it is demonstrated that Chuckleberry
**had or should have had substantial reasons to question
the accuracy of the article.’ Karaduman v. Newsday,
Inc., 51 N.Y.2d at 550, 416 N.E.2d at 566, 435 N.Y.S. 2d
at 565-66. Although the president of Chuckleberry has
stated that Chuckleberry believed it had every right to
republish the photographs in the May, 1980 issue of
Adelina and did so in good faith, I find this an insuffi-
cient basis upon which to grant a motion for summary
judgement. As the Supreme Court has noted in an
analogous situation:
[t]he defendant in a defamation action brought by
a public official cannot . . . automatically insure a
favorable verdict by testifying that he published
with a belief that the statements were irue. The
finder of fact must determine whether the publica-
tion was indeed made in good faith.
St. Amant v. Thompson, 390 U.S. 727, 732 (1968). In this
case, it appears that there is a factual question as to
whether Chuckleberry should have had substantial reason
to question the accuracy of the article, especially because
the caption under the picture misidentified the author of
the novel and screenplay ‘“The World is Full of Married
Men.”’ In addition, numerous factual questions exist con-
cerning Chuckleberry’s use of the cover of the May, 1980
issue Of Adelina in advertisements in subsequent issues
since it appears that this action was pending at the time the
latter issues were published.
62a
On the other hand, plaintiff has not disputed the af-
fidavit of Julius L. Ross, President of PDC, which
establishes that PDC neither knew nor had notice of the
defamation contained in the May, 1980 issue of Adelina.
Futhermore, | find that plaintiff has failed to raise a ques-
tion of fact as to whether PDC, under the circumstances,
should have been on notice that the publisher was
unreliabl- See Affid. of Julius L. Ross, sworn to March
28, 1980 at # 6. Consequently, summary judgment is
granted for PDC on this issue.
With respect to the issues of Adelina tha’ contained the
advertisement using the cover of the May 198 ‘issue, PDC
contends that it was no longer the distributor and cannot
be held liable for any damages arising from these publica-
tions. While this may be the case, the deposition
statements of Eugene Ford do not establish with certainty
the date on which Flynt assumed total responsibility for
distribution of Adelina. Thus, the nature and extent of
PDC’s role in the distribution of the June, 1980 issue of
Adelina as well as the subsequent issues which are claimed
to be defamatory are unclear. In addition, I find that ques-
tions of fact clearly are presented with respect to whether
special circumstances existed requiring PDC to review the
content of the issues of Adelina published after the May
1980 issue. In light of the foregoing, summary judgment
must be denied with respect to plaintiff's claims concern-
ing the June, 1980, and January 1981 issues of Adelina
and the February/March 1981 issue of Rooster magazine.
A comparison of the facts in this case with those in
Gertz v. Robert Weich, Inc., 418 U.S. 323 (1974), is in-
structive. Gertz was a well-known attorney who had long
been active in community and professional affairs, had
published numerous books and articles on legal, political
and literary subjects, was the subject of countless inter-
views, and consequently was well-known in certain circles.
’
:
63a
Nevertheless, he was found to be a private figure because
he had not thrust himself to the forefront of the particular
controversy which gave rise to the defamation. Similarly,
in this case, although plaintiff is a successful novelist
among a limited circle of readers, and has achieved some
notoriety as a result of her views and works, she cannot be
considered a public figure because she did not thrust
herself to the forefront of a controversy concerning the
sexual liberation of actresses in American film. See Time
Inc. v. Firestone, 424 U.S. 448, 453 (1976).
Thus, although plaintiff has a ‘‘public image’’ which
has been exploited for the purpose of marketing her
popular novels, defendants have not shown that plaintiff
has thrust herself to the forefront of a public controversy
such as to render her a limited purpose public figure for
first amendment purposes. I, therefore, must conclude
that plaintiff is a private figure for purposes of determing
defendants’ liability on the issue of libel.
Having determined that plaintiff is a private figure for
purposes of first amendment analysis, the court must turn
to New York law for the standards by which PDC’s and
Chuckleberry’s conduct must be examined. Under New
York law, publishers of defamatory falsehoods about a
private individual! in matters of legitimate public interest,
may be held liable upon a showing that ‘‘the publisher
acted in a grossly irresponsible manner without dve con-
sideration for the standards of information gathering and
dissemination ordinarily followed by responsible parties."’
Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y .2d
196, 199, 341 N.E.2d 569, 571, 379 N.Y.S.2d 61, 63-64
(1975).
The New York courts have further limited the respon-
sibility of republishers and distributors of defamatory
statements. ‘With a respect to republishers, the New York
courts hold that ‘ta company or concern which simply
64a
republishes a work is entitled to place its reliance upon the
research of the original publisher, absent a showing that
the republisher ‘had, or should have had, substantial
reasons to question the accuracy of the articles or the bona
fides of [the] reporter.’ ’’ Karaduman v. Newsday, Inc.,
51 N.Y.2d 531, 550, 416 N.E.2d 557, 566, 435 N.Y.S.2d
556, 565-66 (1980) (quoting Rinaldi v. Holt, Rinehart &
Winston, Inc., 42 N.Y.2d 369, 383, 366 N.E.2d 1299,
1307, 397 N.Y.S.2d 943, 952, cert. denied, 434 U.S. 969
(1977)).
With respect to distributors, the New York courts have
long held that vendors and distributors of defamatory
publications are not liable if they neither know nor have
reason to know of the defamation. Balabanoff v. Fossani,
192 Misc. 615, 81 N.Y.S.2d 732 (1948); see Lewis v. Time,
Inc. 83 F.R.D. 455 (E.D. Cal. 1979); Restatement (Sec-
ond) of Torts § 581 (1976). As discussed in the Restate-
ment:
[A] news dealer is not liable for defamatory
state.ients appearing in the mewspapers or
magazincs that he sells if he neither knows nor has
reason to know of the defamatory article. The
dealer is under no duty to examine the various
publications that he offers for sale to ascertain
whether they contain any defamatory items. Unless
there are special circumstances that should warn
the dealer that a particular publication is
defamatory, he is under no duty to ascertain its in-
nocent or defamatory character. On the other
hand, when a dealer offers for sale a particular
paper or magazine that notoriously persists in
printing scandalous items, the vendor may do so at
the risk that any particular issue may contain
defamatory language.
65a
Id. at Comment d.
The conduct of Chuckleberry and PDC must be
evaluated in accordance with these standards and if any
genuine issues exist as to the material facts, summary
judgement must be denied.
According to the affidavit of Walter Zacharias, the
former President of Chuckleberry, the pictures which pur-
port to be photographs of plaintiff that were published in
the May, 1980 issue of Adelina were acquired by
Chuckleberry from its licensor Tattilo Editrice SPA, the
publisher of the Italian magazine, Playmen. The pictures
previously had been published in the August 1979 issue of
Playmen and Chucklieberry published them ‘‘by reason of
the prior publication of materiais by its licensor.’’ Affid.
of Walter Zacharias, sworn to March 28, 1980 at 4 2. As
stated by Zacharias, Tattilo Editrice SPA:
RULE 37 MOTIONS
Plaintiff has moved for #2 order pursuant to Fed. R.
Civ. P. 37(d), striking thuckleberry’s answer and
counterclaim. PDC similarly has moved for an order pur-
suant to Rule 37 precluding Chuckleberry from opposing
PDC’s cross-claim for indemnity and severing plaintiff’s
claims against PDC from its claims against Chuckleberry
for triai pursuant to Fed. R. Civ. P. 42(b) and for other
and further related relief. These motions are the result of
the continued inability of plaintiff to obtain the deposition
ot Chuckleberry’s president, Seymour Butan, PDC claims
that its ability to prepare its defense for trial and its
arguments in support of its motion for summary judgment
have been substantially impaired as a result of
Chuckleberry’s failure to submit to deposition by plain-
tiff.
66a
Plaintiff attempted unsuccessfully to obtain Chuckle-
berry’s deposition from September, 1980 through
January, 1981. On January 16, 1981, a pretrial conference
was held before this court. Richard Waxman, Esq. of
Goldschmidt, Fredericks, Kurzman & Oshatz, appeared
on behalf of Chuckleberry. The court directed plaintiff at
this conference to serve Mr. Butan with a subpoena and
stated that a motion to strike Chuckleberry’s answer
would be entertained if the subpoena was not obeyed.’
The subpoena was served setting a deposition date of
February 20, 1981. This subsequently was adjourned at
Chuckleberry’s request to March 5, 1981 and then to
March 10, 1981. Attorneys for Chuckleberry and PDC
and the court reporter arrived at plaintiff’s attorney’s of-
fice at the scheduled time on March 10, 1981 but Mr.
Butan failed to appear and also failed to telephone to ex-
plain his absence.
Chuckleberry’s affidavit in opposition to plaintiff’s mo-
tion to strike its answer and counterclaim states that Mr.
Butan’s non-appearance was based on a ‘‘medical
emergency’’.’ Chuckleberry, however, did not submit a
doctor’s report or any other proof to document the nature
and extent of this emergency.
Under Fed. R. Civ. P. 37, the court, in its discretion,
may impose ‘‘just’’ sanctions against a party who ‘‘fails to
obey an order to provide or permit discovery’’. Only
where a party has acted willfully, in bad faith or with
deliberate disregard of a court order should the sanction
of judgment by default for failure to comply with a
discovery order be employed. This remedy should not be
*Mr. Waxman claims in his affidavit that he is ‘‘not aware of any
order compelling the deposition of Mr. Butan.’’ Such an order was
made by this court at the pretrial conference on January 16, 1981.
*This ‘‘medical emergency’’ allegedly resulted from a ‘‘severe
hemorrhoidal condition, making it impossible for him to sit for any
extended period of time.’”’
67a
invoked where failure to comply is due to inability to com-
ply. Societe Internationaie v. Rogers, 357 U. S. 197, 212
(1958).
In view of the foregoing, Chuckleberry is ordered to
submit an affidavit of Mr. Butan’s treating physician set-
ting forth the nature and extent of his purported March
10, 1981 ‘‘medical emergency.’’ Failure to submit this af-
fidavit within twenty days of the filing of this opinion will
result in the dismissal of Chuckleberry’s answer and
counterclaim to plaintiff’s complaint. In the event that
such medical proof is satisfactory to this court,
Chuckleberry will be given one further opportunity to sub-
mit to deposition.
Because of Chuckleberry’s persistent forestalling of the
discovery proceedings and for the failure of Mr. Butan to
telephone plaintiff’s attorney on March 10, 1981,
reasonable costs, including attorneys’ fees, are imposed on
Chuckleberry. Plaintiff and PDC are to submit affidavits
to this court setting forth expenses and fees incurred at the
March 10 aborted depositions in accordance with the
above.
PDC’s motion to preclude Chuckleberry from opposing
its cross-claim for indemnity, for severance of plaintiff’s
claims against it pursuant to Fed. R. Civ. P. 42(b), for a
stay of trial against PDC pending a hearing on inquest
against Chuckleberry pursuant to Fed. R. Civ. P. 55(b)
and for entry of judgment against Chuckleberry pursuant
to Fed. R. Civ. P. 54(b) are denied. While the inconve-
nience to PDC caused by Chuckleberry’s failure to submit
to deposition by plaintiff is not disputed, it does not ap-
pear that PDC has been significantly prejudiced by
Chuckleberry’s failure to submit to the March 10, 1981
deposition. First, it does not appear that PDC has been
hampered in its defense to plaintiff’s claims. Second, since
PDC’s claims against Chuckleberry for indemnity involve
68a
issues that are separate and distinct from plaintiff’s claims
against Chuckleberry, it is unlikely that Chuckleberry’s
failure to appear for deposition by plaintiff has adversely
affected PDC’s case against Chuckleberry. Finally,
although it appears that Chuckleberry is reluctant to ap-
pear for a deposition by the plaintiff, there is no indication
that Chuckleberry would fail to respond to a deposition
noticed by PDC. Thus, PDC’s motion for sanctions is
denied.
CONCLUSION
In accordance with the above, plaintiff’s motion to
amend her complaint is granted. PDC’s and
Chuckleberry’s motions for summary judgment on plain-
tiff’s right of publicity claim are denied and summary
judgment is granted for plaintiff on this claim. PDC’s and
Chuckleberry’s motions for summary judgment on plain-
tiff’s libel claims are denied. PDC’s motion for sanctions
against Chuckleberry is denied. However, plaintiff’s mo-
tion for sanctions against Chuckleberry is granted unless
Chuckleberry submits satisfactory proof, as directed
above, that its failure to appear for the March 10, 1981
deposition noticed by plaintiff was in fact the result of a
medical emergency.
SO ordered.
Dated: New York, New York
August 17, 1981
HENRY F. WERKER
U.S.D.J.
69a
Appearances:
Attorneys for Plaintiff, Grutman Schafrann & Miller,
505 Park Avenue, New York, New York 10022 by Jeffrey
H. Daichman of counsel.
Attorneys for Chuckleberry, Goldschmidt, Fredericks,
Kurzman & Oshatz, 655 Madison Avenue, New York,
New York 10021 by: Richard Waxman of counsel.
Attorneys for PDC, Greenbaum, Wolff & Ernst, 437
Madison Avenue, New York, New York 10022 by: Marcia
B. Paul, Jerry Simon Chasen of counsel.
70a
Memorandum Decision of the United States District
Court, Southern District of New York, dated June 3,
1982.
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF NEW YORK.
»
JACKIE COLLINS LERMAN,
Plaintiff,
against
CHUCKLEBERRY PUBLISHING, INC., and PUBLISHERS
DISTRIBUTING CORP.,
Defendants.
# 897
80 Civ. 1658 (HF W)
.
JACKIE COLLINS LERMAN,
Plaintiff,
against
FLYNT DISTRIBUTING CO., INC.,
Defendant.
81 Civ. 2281 (HFW)
@
Appearances: (See last page).
HENRY F. WERKER, D. J.:
These two actions are before the court on (1) plaintiff's
motions to amend the complaint in Lerman y.
Chuckleberry, No. 80 Civ. 1658 to add Flynt Distributing
Company (‘‘Flynt’’) as a party defendant; (2) plaintiff's
motion to consolidate the two actions; and (3) plaintiff's
and Flynt’s cross-motions for partial summary judgment
in Lerman v. Flynt Distributing Co., No. 81 Civ. 2281.
7la
BACKGROUND
The first of these two actions, Lerman v. Chuckleberry
Publishing Inc., No. 80 Civ. 1658 (the ‘‘Chuckleberry ac-
tion’’) was commenced by plaintiff in March, 1980,
against Chuckleberry Publishing Inc. (‘‘Chuckleberry’’)
and Publishers Distributing Co. (‘‘PDC’’), for libel, viola-
tion of the right of publicity and invasion of privacy aris-
ing from the publication of the May 1980 issue of
**Adelina’’ magazine. That action has been the subject of
two prior opinions and reader familiarity with them is
assumed. '
The second action was commenced by plaintiff in April,
1981, against Flynt to recover damages for libel, violation
of the right of publicity and invasion of privacy. The ac-
tion arises from Flynt’s ‘alleged role in distributing the
June 1980 and January 1981 issues of ‘‘Adelina’’ which,
as part of an advertisement for the sale of ‘‘Adelina’’,
contained reprints of the allegedly libelous cover of the
May, 1980, issue of ‘‘Adelina’’.
PLAINTIFF'S MOTION TO
AMEND THE COMPLAINT
Plaintiff has moved in the Chuckleberry action to
amend the complaint to assert causes of action against
Flynt for libel, invasion of privacy under sections 50 and
51 of the N. Y. Civil Rights Law, and violation of the right
of publicity based upon Flynt’s alleged participation in the
distribution of the May 1980 issue of ‘‘Adelina’’. For the
reasons that follew, this motion is granted.
Plaintiff asserts that she commenced this action against
Chuckleberry and PDC on the basis of the Table of Con-
tents of ‘‘Adelina’’ which states that ‘‘Adelina’’ was
published by Chuckleberry and distributed by PDC. She
' See Lerman v. Chuckleberry Publishing, Inc., 321 F. Supp. 228
(S.D.N.Y. 1981) and Lerman v. Chuckleberry Publishing, Inc., 496 F.
Supp. 1105 (S.D.N.Y. 1980).
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further asserts that it was not until she received Flynt’s
response to interrogatories in September 1981, in the Fiyni
action that she became aware of Fliynt's role in the
distribution of the May 1980 issue of ‘‘Adelina’’. See Ex-
hibit D to affid. of Jeffrey Daichman, sworn to December
24, 1981.
Flynt has opposed the motion to amend on the ground
that plaintiff should not be permitted to avoid the one year
statute of limitations on her claims arising from publica-
tion of the May 1980 issue of ‘‘Adelina’’ by amending the
complaint in the Chuckleberry action and relying on the
relation-back provision of Rule 15(c).
Flynt further argues that the motion to amend should be
denied because (1) the amendment is unsupported factu-
ally; (2) it is a tactical effort to circumvent the possible
denial of plaintiff’s motion to consolidate; and (3) amend-
ment at this juncture would be prejudicial to Flynt.
Flynt’s argument that the proposed amendment is un-
supported factually is unpersuasive. Unless a proposed
amendment is clearly frivolous or legally insufficient on its
face, the substantive merits of a claim or defense should
not be considered on a motion to amend. Nyscoseal, /nc.
v. Parke, Davis & Co., 28 F.R.D. 24, 25 (S.D.N.Y. 1961).
Plaintiff’s claims here are not frivolous. They are based on
an admission contained in Flynt’s answers to inter-
rogatories. In light of that admission, the affidavit of
Gerald Awang, sworn to January 28, 1981, merely raises
questions of fact and credibility to be determined on the
merits and not at this stage of the litigation.
Flynt’s contentions with respect to consolidation also
are without merit. The court’s analysis must rest on the
relative merits of the parties’ contentions with an eye to
judicious resolution of their claims rather than on an
evaluation of the tactical manueverings of their attorneys.
Similarly, Flynt’s allegation of prejudice from amend-
ment at this point in the proceedings is unavailing. The
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fact that the amendment may add another issue to the case
and require further pre-trial proceedings is an insufficient
basis to deny amendment under the circumstances
presented by this case. In the absence of specific and com-
pelling allegations of prejudice, such as some undue disad-
vantage in the presentation of a defense to the claims
sought to be asserted, leave to amend should be granted.
See lodice v. Calabrese, 345 F. Supp. 248, 259 (S.D.N.Y.
1972), aff'd in part, rev'd in part on other grounds, 512 F.
2d 383 (2d Cir. 1975).
Flynt’s contention with respect to the statute of limita-
tions also is unavailing. If plaintiff had never commenced
the subsequent action against Flynt for the June, 1980,
and January, 1981, issues of ‘‘Adelina’’ there would be lit-
tle doubt that plaintiff could now move to amend her
original complaint to add Flynt as a party defendant in the
Chuckleberry action and rely on the relation-back doc-
trine. Simply because she has commenced a separate ac-
tion against Flynt should not preclude her from benefiting
from the liberal relation-back provisions of Rule 15(c).
Fed. R. Civ. P. 15(a) provides that leave of court to
amend a complaint shall be freely given when justice so re-
quires. Rule !5(c) provides:
Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, trans-
action, or occurrence set forth or attempted to be
set forth in the original pleading, the amendment
relates back to the date of the original pleading. An
amendment changing the party against whom a
claim is asserted relates back if the foregoing provi-
sion is satisfied and, within the period provided by
law for commencing the action against him, the
party to be brought in by amendment (1) has re-
ceived such notice of the institution of the action
that he will not be prejudiced in maintaining his
T4a
defense on the merits, and (2) knew or should have
known that, but for a mistake concerning the iden-
tity of the proper party, the action would have been
brought against him.
It is beyond dispute that the amendment here arises
from the occurrence set forth in the original pleading.
Flynt also received notice of the institution of the action
against Chuckleberry within the one year statute of limita-
tions. See Exhibit E to affid. of Jeffrey Daichman, sworn
to December 24, 1981. Finally, it is apparent that Flynt
knew or should have known that, but for plaintiff's
misapprehension of the proper party based on the infor-
mation contained in the Table of Contents of the May
1980 issue of ‘‘Adelina’’, that the action would have been
commenced against Flynt.
CONSOLIDATION
Plaintiff moves to consolidate this action with a prior
action commenced against Chuckleberry Publishers, Inc.
and Publishers Distributing Corporation (‘‘PDC’’) for
libel, violation of the right of publicity and invasion of
privacy arising from the publication of the May 1980,
June 1980 and January 1981 issues of Adelina. PDC has
not opposed the motion to consolidate. Flynt, however,
has opposed consolidation on the grounds that consolida-
tion at this stage of the litigation will unfairly prejudice
Flynt, particularly because different factual and legal
questions are presented by the two complaints. For the
reasons that follow, the motion is granted.
Fed. R. Civ. P. 42(a) provides that ‘‘when actions in-
volving a common question of law or fact are pending, . . .
the court . . . may order . . . the actions consolidated . . .
.”’ “Consolidation may be denied where no common ques-
tion of law or fact is involved, where the rights of the par-
7Sa
ties would not be adequately protected, where in a jury ac-
tion the jury would be confused, or when consolidation
weuld not effect any appreciable saving of time or ex-
pense.’’ 5 Moore’s Federal Practice §42.02 at 42-17 (2d ed.
1981).
Flynt’s contention that the complaints present different
factual and legal issues is meritless. Fiynt and PDC both
are national distributors of magazines and participated in
the distribution of the controversial issues of ‘‘Adelina’’.
Thus, it is clear that common questions of law will be
presented as to the liability of a magazine distributor for
libel, invasion of privacy and violation of the right of
publicity. Indeed, Flynt concedes that the jury will be
presented with (1) similar legal theories of recovery against
Flynt and PDC; (2) similar testimony from both PDC and
Flynt as to their duties and responsibilities as distributors
not involved in the publication of the magazines and (3)
similar testimony from both PDC and Flynt as to the
workings and nature of the national magazine industry.
Flynt’s Memo in Opposition to Consolidation at 5. See
Lioyd v. Industrial Bio-test Laboratories, Inc., 454 F.
Supp. 807, 812 (S.D.N.Y. 1978).
One of the primary factual disputes presented by this
litigation is which distributor is liable for the distribution
of the various issues since Flynt’s purchase of PDC’s
assets on March 17, 1980 was followed by a transitional
period during which both Flynt and PDC apparently par-
ticipated in the distribution of ‘‘Adelina’’. It is clear that
the issue of which of the two distributors was responsible
for the distribution of the May and June 1980 issues is one
that should be resolved in one lawsuit to avoid the
possibility of inconsistent jury decisions.
Flynt’s arguments concerning prejudice arising from
possible jury confusion and ‘“‘guilt by association with
PDC”’ are unavailing. The factual issues presented in this
lawsuit are fairly straightforward. It is unlikely that Flynt
76a
would be the victim of “guilt by association with PDC.”’
On the other hand, the goal of judicial economy will be
served by consolidation in that duplication of testimony
concerning the alleged defamation, plaintiff's damages
and the responsibilities of magazine distributors will be
avoided.
Flynt’s final contention that consolidation is premature
is without merit. The totality of the record in this case
raises a question of fact as to which of the two publishers
was responsible for distributing the May and June 1980
issues of ‘‘Adelina.’’ To await the outcome of further
discovery before ordering consolidation would serve no
useful purpose. See Lioyd v. Industrial Bio-tesi
Laboratories, Inc., 454 F. Supp. 807, 812 (S.D.N.Y.
1978). Accordingly, the motion to consolidate the two ac-
tions is granted.
SUMMARY JUDGMENT
Flynt has moved for partial summary judgment pur-
suant to Fed. R. Civ. P. 56 on plaintiff's claims for inva-
sion for privacy under N.Y. Civ. Rights Law §§ 50-5!
(McKinney Supp. 1981-1982) and the right of publicity
arising from the use of plaintiff's name in advertisements
in the June 1980 and January 1981 issues of ‘‘Adelina’’.
Plaintiff has cross-moved for summary judgment on these
claims.
The advertisements appear at page 99 of the 120 page
June 1980 issue and page 98 of the 114 page January issue
of ‘*‘Adelina’’. They are composed of the reproduction of
four covers of back issues of ‘‘Adelina’’ reduced from
their original size to 2-7/8ths x 3-13/16ths inches, aiong
with a mail order form for prospective subscribers. The
cover of tse May 1980 issue of *‘Adelina’’ containing the
words ‘‘in the Nude From the Playmen Archives . .
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Jackie Collins," in type 1/16th of an inch high is displayed
in the lower left hand corner of both pages.
Flynt contends that the solitary or infrequent use of an
individual's name in the context of a total work is exempt
from the purview of sections $0 and 51. It also contends
that the use of plaintiff’s name is protected by the exemp-
tion accorded to the incidental advertisement of the news
medium.
Under New York law, the use of a name or
likeness incidental to the dissemination of news or
“from ‘incidental advertising’ of the news medium
in which [the plaintiff} was properly and fairly
presented” is not violate of the right of publicity or
the right of privacy. Namath v. Sports Iilustrated,
80 Misc. 2d $31, $33, 363, N.Y.S.2d 276, 278 (Sup.
Ct. N.Y. County), aff'd, 48 App. Div. 2d 487, 371
N.Y.S.2d 10 (ist Dep't 1975), aff'd 39 N.Y.2d 897,
352 N.B.2d 584, 386 N.Y.S.2d 397 (1976). As
stated in Booth v. Curtis Publishing, Co., 15 App.
Div. 2d 343, 350, 223 N.Y.S.2d 737, 744 (ist
Dep't), aff'd, 11 N.Y. 2d 907, 182 N.B.2d 812, 228,
N.Y.S.2d 468 (1962):
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 . . . for purposes
of advertising the periodical.
The requirement of proper portrayal in the first instance
has been repeatedly specified in the case law. For example,
in Sidis v. F.R. Publishing Corp., 113 F.2d 806, 810 (2d
Cir.), cert. denied, 311 U.S. 711 (1940), the court stated:
78a
the newspaper advertisement announcing the
August 14 article . . . was undoubtedly inserted in
the World-Telegram ‘for advertising purposes ’
But since it was to advertise the article on Sidis, and
the article itself was unobjectionable, the advertise-
ment shares the privilege enjoyed by the article.”’
See Friedan v. Friedan, 414 F. Supp. 77, 79 (S.D.N.Y.
1977).
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 . . . for purposes
of advertising the periodical.
The requirement of proper portrayal in the first instance
has been repeatedly specified in the case law. For example,
in Sidis v. F.R. Publishing Corp., 113 F.2d 806, 810 (2d
Cir.), cert. denied, 311 U.S. 711 (1940), the court stated:
the newspaper advertisement announcing the
August 14 article . . . was undoubtedly inserted in
the World-Telegram ‘for advertising purposes.’
But since it was to advertise the article on Sidis, and
the article itself was unobjectionable, the advertise-
ment shares the privilege enjoyed by the article.”’
See Friedan v. Friedan, 414 F. Supp. 77, 79 (S.D.N.Y.
1977).
The advertisements at issue in this case would appear to
fit squarely within the exception for advertising incidental
to the news medium except that plaintiff was not properly
and fairly presented in the May 1980 issue of ‘‘Adelina.”’
In this case, it is clear that the May 1980 issue of
‘**Adelina’’ incorrectly identified the plaintiff as one of the
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Starlets appearing in the ‘‘Archives’’ section of the
magazine and incorrectly attributed authorship of the
novel The World is Full of Married Men to the late Jac-
queline Susann, rather than plaintiff. See Lerman vy.
Chuckleberry Publishing, Inc., 496 F. Supp. 1105, 1107
(S.D.N.Y. 1980). Thus, Flynt may not rely on the defense
of use incidental to advertisement of the news medium.
The next basis upon which Flynt seeks summary judg-
ment is that the advertisements contained in the June 1980
and January 1981 issues of ‘‘Adelina’’ are protected under
the doctrine of incidental use. Under that doctrine, the
‘‘incidental, monetary, and isolated use’’ of an
individual’s name when ‘‘viewed in the context of the
main purpose and subject’’ of the work as a whoie is not
actionable under §§ 50 and 51 of the Civil Rights Law.
Ladany v. William Morrow and Co., 465 F. Supp. 870,
880-82 (S.D.N.Y. 1978). This doctrine has been applied to
preclude recovery to individuals mentioned or portrayed
incidentally in novels or motion pictures even if the use is
unauthorized or fictionalized. See id. Thus, in Meervpol
v. Nizer, 381 F. Supp. 29, 38 (S.D.N.Y. 1974), aff’d on
other grounds, 560 F.2d 1061 (2d Cir. 1977), cert. denied,
434 U.S. 1013 (1978), the court found:
Plaintiff’s are not entitled to recover for an inva-
sion of privacy because references to them as the
Rosenburg children are highly incidental to the
main purpose and subject of the book. Twenty-
nine isolated references of a fleeting and peripheral
nature are insufficient to support a claim under §
51.
Flynt contends that the various sections of a magazine
are analogous to the subplots and digressions found in
films, novels and plays and that the advertisement
— 80a
therefore is incidental to the magazine as a whole. It fur-
ther contends that the size of plaintiff’s name as it appears
in the advertisements coupled with the obscure position of
the name in the lower left hand corner of the pages clearly
establishes its incidental relationship to the subscription
solicitation as a whole.
Neither of these contentions is persuasive. A magazine
as a whole cannot be analogized to works such as novels or
films for its many sections lack the integration of a novel,
film or play which can only be understood in the context
of the whole. Indeed, it is difficult to analyze a magazine
in terms of its main purpose or subject except by analysis
of a general theme such as news, literary, pornography,
entertainment or sports. Analysis in terms of such a
general theme clearly is not what is contemplated by the
Ladany line of cases.
Flynt’s argument that the minute size of the print and
the obscure placement of plaintiff's name in the adver-
tisements renders the use incidental to the subscription
solicitation as a whole also is frivolous. There can be no
doubt that the covers of prior issues of ‘‘Adelina’’ were
utilized in the subscription solicitation to demonstrate the
content and quality of ‘‘Adelina.’’ Each cover included in
the advertisement was designed to play a significant role in
arousing the interest of the reader in ‘‘Adelina’’ magazine.
While reduced in size, the covers were plainly visible and
comprised an integral part of the advertisement and the
print certainly was legible. Accordingly, the use of the
cover of the May 1980 issue of ‘*Acelina’’ in the subscrip-
tion solicitation was not incidental to the solicitation as a
whole.
For the foregoing reasons, Flynt’s motion for summary
judgment is denied.
Plaintiff has crosssmoved for summary judgment
against Flynt on her claims for invasion of privacy and
8la
violation of her right of publicity based on the publication
of the advertisements in the June 1980 and January 1981
issues of ‘‘Adelina’’. For the reasons that follow, the mo-
tion is granted.
As discussed in Lerman v. Chuckleberry Publishing
Inc., 496 F. Supp. 1105 (S.D.N.Y. 1980), the elements of a
cause of action for invasion of privacy under the N.Y.
Civ. Rights L § 5) are (1) that the defendant used
plaintiff’s name, portrait or picture within the state, (2)
for purposes of advertising or trade, and (3) without first
obtaining plaintiff’s written consent.
There is no dispute as to the following material facts.
Defendant used plaintiff’s name within the state when it
distributed copies of the June 1980 and January 1981
issues of ‘‘Adelina’’ throughout the United States, in-
cluding New York. The purpose of including the cover of
the May 1980 issue of ‘‘Adelina’’ which contained plain-
tiff’s name in the subscription solicitation was advertising
or the promotion of trade. Plaintiff did not give her oral
or written consent to the use of her name. See Lerman v.
Chuckleberry Publishing, Inc., 496 F. Supp. at 1108-09.
As discussed above, defendant may not rely on the defense
of incidental use. Accordingly, there being no issues of
jaterial fact in dispute, see Lerman and Flynt’s
Statements pursuant to Civil Rule 3(g), and each element
of the cause of action having been established, judgment is
granted for plaintiff as a matter of law on her claim for in-
vasion of privacy.
This circuit has long interpreted New York law to
recognize a common law right of publicity. The elements
of a cause of action for violation of an individuai’s com-
mon law right of publicity are: (1) that his name or
likeness has publicity value; (2) that he has exploited his
name or likeness in a way that evidences his recognition of
its extrinsic commercial value; and (3) that defendant has
82a
appropriated this right of publicity, without consent, for
advertising purposes or for the purposes of trade. Lerman
v. Chuckleberry Publishing, Inc., 521 F. Supp. 228, 232
(S.D.N.Y. 1981).
Recently, one New York appellate court has opined that
the right of publicity is not derived from the common law
but ‘‘is subsumed in sections 50 and 51 of the Civil Rights
Law.’’ Brinkley v. Casablancas, 80 App. Div. 2d 428, 438
N.Y.S.2d 1004, 1012 (Ist Dep’t 1981). To establish a claim
under §§ 50 and 51 for violation of the right of publicity,
three elements must be established: (1) the use of a
person’s name or photograph; (2) for a commercial pur-
pose; and (3) the failure to procure the person’s written
consent for such use. /d.
Under either the common law or the statutory standard,
plaintiff is entitled to summary judgment on her claim for
violation of the right of publicity. If the standard set forth
in Brinkley is utilized, plaintiff must prevail for the same
reasons she prevailed on her claim for invasion of privacy
for the elements of the causes of action are the same.
If the common law standard which has evolved from the
case law is employed, plaintiff also is entitled to summary
judgment. That plaintiff’s name has publicity value and
that she has exploited her name in a manner which evinces
her recognition of its value was determined as a matter of
law in my decision in Lerman v. Chuckleberry Publishing,
Inc., 521 F. Supp. 228, 232 (S.D.N.Y. 1981). The final ele-
ment, that defendant used plaintiff’s name, without con-
sent, for purposes of trade or advertising was determined
in the discussion, supra, of plaintiff’s motion for sum-
mary judgement on her claim for violation of her right of
privacy. Thus, plaintiff has established that she is entitled
to judgment as a matter of law under either the common
law or statutory approach to the right of publicity.
83a
CONCLUSION
In accordance with the above, in Lerman v. Flynt
Distributing Co., No. 81 Civ. 2281, Flynt’s motion for
partial summary judgment is denied. Plaintiff’s cross-
motion for partial summary judgment is granted as to the
issue of Flynt’s liability on her claims for violation of her
rights of privacy and publicity.
In addition, plaintiff’s motion to consolidate Lerman v.
Flynt Distributing Co., No. 81 Civ. 2281 with Lerman v.
Chuckleberry Publishing, Inc., No. 80 Civ. 1658 is
granted. Plaintiff’s motion to amend her complaint in
Lerman v. Chuckleberry Publishing, Inc., No. 80 Civ.
1658 also is granted.
So ordered.
Dated: New York, New York
June 3, 1982
HENRY F. WERKER
U.S.D.J.
Appearances:
Attorneys for Plaintiff, Grutman Schafrann & Miiier,
505 Park Avenue, New York, New York 10022 by: Jeffrey
H. Daichman of counsel.
Attorneys for Flynt, Zane & Teitler, One Rockefeller
_ Plaza, New York, New York 10020 by: Edward S. Rudof-
sky, Frederick A. Polatsek of counsel.
84a
Constitutional and Statutory Provisions.
Constitution of the United States
AMENDMENT |
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
* * *
AMENDMENT IV
Section 1. Ail persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protec-
tion of the laws.
AMENDMENT V
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indict-
ment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person be sub-
ject for the same offence to be twice put in jeopardy of life
85a
or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private
property be taken for public use, without just compensa-
tion.
New York Civil Rights Law
§ 50 Right of privacy
A person, firm or corporation that uses for advertising
purposes, or for the purposes of trade, the name, portrait
or picture of any living person without having first ob-
tained the written consent of such person, or if a minor of
his or her parent or guardian, is guilty of a misdemeanor.
§ 51 Action for injunction and for damages
Any person whose name, portrait or picture is used
within this state for advertising purposes or for the pur-
poses of trade without the written consent first obtained as
above provided may maintain an equitable action in the
supreme court of this state against the person, firm or cor-
poration 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
and if the defendant shall have knowingly used such per-
son’s name, portrait or picture in such manner as is for-
bidden or declared to be unlawful by the last section, the
jury, in its discretion, may award exemplary damages. But
nothing contained in this act shall be so construed as to
prevent any person, firm or corporation, practicing the
profession of photography, from exhibiting in or about
his or its establishment specimens of the work of such
establishment, unless the same is continued by such per-
86a
son, firm or corporation after written notice objecting
thereto has been given by the person portrayed; and
nothing contained in this act shall be so construed as to
prevent any person, firm or corporation from using the
name, portrait or picture of any manufacturer or dealer in
connection with the goods, wares and merchandise
manufactured, produced or dealt in by him which he has
sold or disposed of with such name, portrait or picture
used in connection therewith; or from using the name,
\portrait or picture of any author, composer or artist in
connection with his literary, musical or artistic produc-
tions which he has sold or disposed of with such name,
portrait or picture used in connection therewith.
IN THE NUDE
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in Dor Gaowornm 1973 @ Roger Vadten fir whch also marred Brgene
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89a
Plaintiff's Exhibit 6
KATZ, LEAVY, ROSENSWEIG & SINDLE
ATTORNEYS AT LAW
1211 Avenue of the Americas
New York, N.Y. 10036
(212) 730-0808
April 11, 1980
Mark Fishman, Esq.
Larry Flynt Publications
2029 Century Park East
Los Angeles, California 90067
Re: Jackie Collins Lerman
Vv.
Chuckleberry Publishers, Inc. and
Publishers Distributing Corporation -
80 Civ. 1658 (HFW)
Dear Mr. Fishman:
Consistent with and further to our office’s and PDC’s
conversations with Michael Parnes, Esq., Mr. Jay Kohls
and Mr. Jim Gustafson, I am writing to give you the
details concerning the above captioned matter.
Chuckleberry Publishing, Inc. (“‘CPI’’) and Publishers
Distributing Corporation (‘‘PDC’’) entered into a
distribution agreement pursuant to which PDC distributes
the magazine ‘‘Adelina’’.
On March 24, 1980 this office, on behalf of PDC, was
served with an Order to Show Cause, Summons and Com-
Wa
plaint by the attorneys for Jackie Collins Lerman (‘‘Ler-
man’’). Said papers sought a preliminary injunction en-
joining the above referenced defendants from publishing,
advertising, printing and distributing the May 1980 issue
of ‘‘Adelina’’ (the ‘‘Magazine’’). Said Magazine had a
suggested on sale date of March 25, 1980.
On March 31, 1980 a hearing in connection with Ler-
man’s preliminary injunction application was conducted
in the United States Courthouse before Judge Henry F.
Werker. After entertaining oral argument, Judge Werker
granted Lerman’s application and preliminarily enjoined
the defendants from printing, publishing, advertising and
distributing the Magazine. At the conclusion of the hear-
ing Judge Werker requested Lerman’s counsel to submit
an order based on the Judge's decision.
Defendants were not served with an order until April 3,
1980; and defendants did not receive a copy of the
transcript of the oral decision of Judge Werker until April
2, 1980. Thus, it was not until late in the afternoon of
Wednesday, April 2nd, that defendants could comply with
the Judge’s direction.
Upon receipt of the order on April 3, 1980, defendants
filed a Notice of Appeal, Pre-Argument Statement and
Notice of Motion to the Second Circuit Court of Appeals
requesting a stay of Judge Werker’s Order and seeking an
appeal of the Court's decision.
On April 8, 1980 the Second Circuit, United States
Court of Appeals, entertained oral argument with regard
to the request for a stay and summarily denied the request.
Likewise on April 8, !980, as a result of plaintiff's
counsel’s motion to hold the defendants in contempt for
an alleged failure to comply with the Court's Order of
April 3, the Court entertained oral argument at the United
States Courthouse. As a result of said hearing Judge
Werker denied the contempt motion and directed the
Sila
defendants to issue a third telegram to wholesalers direct-
ing the wholesalers to withdraw the Magazine from the
market place. (A first telegram was sent out to wholesalers
on March 26th advising them of the pendency of the
lawsuit and a second telegram was forwarded to thc
wholesalers on April 2nd advising of Judge Werker's deci-
sion to grant the preliminary injunction motion.)
The Distribution Agreement between PDC and CPI
contains an indemnification of PDC by CPI, with regard
to all claims such as those involved in the instant matter.
For your information and edification, Lerman has in-
stituted suit on the basis of alleged invasion of privacy,
alleged violation of the right of publicity, alleged libel and
a violation of Sections $0 and $1 of the New York Civil
Rights Law.
The above facts are merely illustrative and recite the
proceedings involved in this matter to date. In view of the
fact Flynt Distributing Company, Inc. (‘‘Flynt’’) finalized
its acquisition of certain assets of PDC on March 17, 1980,
it would seem that Flynt should properly shoulder the
responsibility with regard to said Magazine and the above
action. | would appreciate your thinking in this regard. In
the interim we are, of course, continuing to defend this
matter and stand ready to aid you in the defense of same.
If you should have any questions at all in connection
with this matter, please do not hesitate to call me.
Sincerely,
STEPHEN R. STERN
SRS:FMN
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.