Invasion of Privacy by Use of Plaintiffs Name or Likeness in Advertising

Morgan, Austin 9/9/2019
For Educational Use Only
Invasion of privacy by use of plaintiff's name or likeness..., 23 A.L.R.3d 865...
23 A.L.R.3d 865 (Originally published in 1969)
American Law Reports | The ALR databases are made current by the weekly addition of relevant new cases.
ALR3d
I. J. Schiffres.
Invasion of privacy by use of plaintiff's name or likeness in advertising
TABLE OF CONTENTS
Article Outline
Index
Table of Cases, Laws, and Rules
Research References
ARTICLE OUTLINE
I Preliminary Matters
§ 1[a] Introduction—Scope
§ 1[b] Introduction—Related matters
§ 2[a] Summary—Generally
§ 2[b] Summary—Practice pointers
§ 3 General principles
§ 4[a] What constitutes use of name or likeness for advertising or trade purposes—Held to be for advertising
or trade purposes
§ 4[b] What constitutes use of name or likeness for advertising or trade purposes—Held not to be for advertising
or trade purposes
II Extent of, and Limitations Upon, Right of Action
A Generally
§ 5 Who may sue and be sued
§ 5.5 Representatives of deceased persons
§ 6 Sufficiency of plaintiff's identification
§ 7 Effect of mere incidental use of plaintiff's name
§ 8 Effect of presence or absence of malice
B Consent and Waiver
III Particular uses of plaintiff's name or likeness as constituting invasion of privacy
§ 14 Use of name on product
§ 15 Use of name as part of corporate name
§ 16 Misrepresenting plaintiff's authorship or statements
§ 17 Alteration of picture
§ 18 Mistaken use of picture
§ 19 Use of name or likeness to increase circulation of publication
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 20[a] Other uses of name—Recovery allowed

§ 20[b] Other uses of name—Recovery denied
§ 21[a] Other uses of picture—Generally; for display purposes
§ 21[b] Other uses of picture—In newspapers or other printed publications
§ 21[c] Other uses of picture—On television or in motion pictures
§ 22 Advertising a nonactionable publication
Research References
INDEX
Accident victim, magazine publication of photograph of § 4[b]

Actor, name or picture of § 12[a]
Actress—
use of name of—
as signer of apparently personal letter distributed to promote motion picture patronage § 20[a]
in advertisement of motion picture §§ 6, 10[b]
to advertise camera § 21[b]
use of picture of §§ 4, 9[b], 12[b], 22
in burlesque theater §§ 12[a], 21[a]
in lockets sold in stores §§ 4[a], 21[a]
to advertise camera § 21[b]
to advertise motion picture appeared in §§ 10[b], 17
exaggerated sketches used § 17
to advertise motion picture not appeared in § 6
Advertising a nonactionable publication of name or picture § 22
Advertising purposes, what constitutes use for § 4
Advertising standards of motion picture industry as factor §§ 10[b], 17
Allegation that unauthorized use was for trade or advertising purposes, lack of § 4[b]
Altered letter or writing—
letter from plaintiff, published in altered form §§ 10[a], 13, 15, 16
physician's research paper published in altered form in medical magazine § 16
Altered photograph or picture §§ 6, 12[b], 17
use as exceeding consent given § 10[a]
Apology by publisher of advertisement mistakenly using plaintiff's picture, damages as affected by § 8
Architect's illustration bearing his name, advertisement reproducing § 20[b]
Artist, name of §§ 4[a], 12[a], 20[a]
Assumed business name of plaintiff, use of § 5
Attorney, automobile dealer misinforming credit rating publisher that attorney was treasurer and a director of dealership § 4[a]
Authorship, use misrepresenting §§ 4[b], 16
altered letter or writing, supra
Baseball player. Sports personalities, infra
Beer–advertising calendar, use of professional athlete's picture on § 10[b]
Biography or biographical sketch of plaintiff—
fictionalized biography of baseball player § 4[a]
newspaper advertisement of § 22
use of subject's name and picture in publishing of § 4[b]

in advertising unauthorized biography § 22

Blind girl, dog food advertisement referring to and using photograph of § 13
Book introduction and note misrepresenting plaintiff's opinion as literary critic §§ 4[a], 16
Bread advertisement, use of bathing suit picture of plaintiff in, by mistake, with caption naming different person § 18
Cesarean operation, commercial exhibition of motion picture showing plaintiff undergoing § 10[a]
Camera manual publishing photographs of plaintiff actress and statement as to her use of particular camera § 4[a]
Caption misnaming person shown in picture §§ 6, 18
Cartoon made from photograph of plaintiff, use of §§ 4[a], 21[b]
Cigar, use of nationally prominent third person's name as name of § 14
Circulation of publication, use of name or likeness to increase §§ 4[a], 19
Clothing, advertisement of § 3
Coat of arms, unauthorized use of, on wine labels § 6
Comic book, re–creation of news story in § 4[b]
"Composite" picture of plaintiff, use of § 12[b]
Concert singer, use of name of §§ 6, 12[b], 20[a]
Consent to use—
as precluding right of action—
generally § 9[a]
under New York statute § 9[b]
broad terminology of terms of consent or release given § 10[b]
consideration for consent or release—
lack of § 11[b]
plaintiff receiving § 10[b]
duration of consent §§ 11, 15
termination of employment as affecting § 11[a]
forged consent or release instrument §§ 9[a], 20[a], 21[a]
given through plaintiff's agent § 9[a]
implied consent § 10[b]
lack of consent by contestant on television program, where he participated without knowledge that program was
"rigged," § 4[a]
minor's name or picture—
lack of consent by parents of minor § 19
oral consent of parent or guardian as partial defense § 9[b]
oral consent, effect of §§ 9, 21[c]
person appearing in motion picture or television broadcast, release or consent by §§ 4[a], 10, 17, 21[c]
general release as controlling although film shown to different audience than that contracted for § 21[c]
public personages, special rules as to, § 12 release as authorizing use of picture §§ 9- 11
revocation or revocability of consent § 11[b]
gratuitous nature of consent as affecting § 11[b]
scope of consent §§ 10, 12[a], 13, 15- 17, 21[c]
commercial showing of film of plaintiff undergoing operation as exceeding consent given § 10[a]
use of surname in trade name of corporation § 15
waiver of right of privacy, infra
written consent, necessity of § 9
statute expressly requiring § 9[b]
Consideration for consent or release permitting use of name or picture, receipt or lack of §§ 10[b], 11[b]
Constitutional law—

constitutionality of statute providing remedy for unauthorized use of name or likeness in advertising § 3
freedom of press §§ 3, 8
freedom of speech §§ 3, 8
Contest entrant's letter, publishing after altering so as to indorse product §§ 10[a], 13, 15, 16
Corporate name, use of plaintiff's name as or in § 15
continuing after plaintiff sold all interest in corporation § 15
Corporation, capacity to sue for unauthorized use of name of § 5
Cosmetics advertising, use of plaintiff's photograph in §§ 10[b], 11[b], 12[a], 15
Cover of book or magazine, picture used on §§ 4[b], 19
Criminal trial of plaintiff, fictionalized magazine account published two years after homicide trial § 19
Customary literary techniques, defense based on use of § 4[a]
Customer in store, advertising display of motion pictures showing, 21[c]
Custom of actresses to permit names and photographs to be used for advertising purposes §§ 9[b], 12[b]
Damages—
exemplary or punitive damages § 8
mistake or lack of malice as precluding allowance of § 8
lack of malice as affecting amount recoverable § 8
mitigation of damages—
apology for use of picture by mistake § 8
custom of theatrical profession as to permitting use of name and pictures in advertisements as partial defense
§§ 9[b], 12[b]
oral consent to use of name or picture as ground for § 9[b]
plaintiff's public recommendation of magazine article as tending to mitigate damages for magazine's
unauthorized advertisement of recommendation § 13
nominal damages, infra
plaintiff's desire for publicity as factor in assessing § 12[b]
special damages, lack of any proof of § 8
Dancer—
mistaken use of photograph of, in club advertisement §§ 8, 12[a], 18
use of picture of, in book about dancing § 4[b]
use of pictures of, in newspaper advertisements and on display cards in stores § 21[b]
Deceased entertainer, motion picture portraying life of § 4[a]
Definition of right of privacy § 3
Demagogue, magazine article referring to plaintiff as, in discussing political affairs of foreign country § 4[b]
Designer of equipment for defendant, use of name of, in advertisement of equipment § 16
Dope peddling, use of plaintiff's picture with article on § 19
Dress designer—
use of assumed name of, in selling patterns of dress § 14
use of surname of § 20[a]
Duration of consent to use §§ 11, 15
Editor of set of books, use of name of, in publishing cheaper edition § 14
Electrologist, use of name and picture of, by contest sponsor § 16
Employee—
consenting to pose for picture with airplane under construction by employer § 10[b]
employer's continued use of name of, after termination of employment—
name as salesman carried on business statements and delivery tickets § 11[a]
signature stamp of plaintiff's name § 11[a]

employer's use of picture of, after termination of employment §§ 10[b], 11[a], 18

Endorsement of product—
use of name in purported statement of § 13
use of picture as being that of endorser §§ 8, 13, 18
Estoppel to assert lack of consent to publication of name, course of conduct as raising §§ 9[b], 16
Expenditures in developing business in reliance upon consent to use of name or picture, where consent amounted to merely
gratuitous license § 11[b]
Extent of right of action §§ 5- 12
Family of murdered man, magazine publication of picture of, with slecial account of homicide § 4[b]
Fictional character in published story, plaintiff's name used as name of § 4[a]
Fiction article in newspaper, publication of plaintiff's photographs in connection with § 4[a]
Financial rating publication, business misusing plaintiff's name as officer and director in reporting to § 4[a]
Flour advertising posters, use of plaintiff's picture on § 21[a]
Forged consent or release §§ 9[a], 20[a], 21[a]
Freedom of press §§ 3, 8
Freedom of speech §§ 3, 8
Frontispiece of textbook, using photograph of plaintiff as § 4[b]
Game including biographical facts about numerous professional golfers, sale of §§ 12[b], 20[a]
General principles § 3
Golfer §§ 12[b], 20[a]
Gratuitous license, when consent to use of name or picture is § 11[b]
Hair coloring product, employer's continued use of plaintiff's picture in advertisements for, after termination of employment
§ 18
Hair culture book, use of plaintiff's picture in advertising § 21[b]
Half–time show at football game, unauthorized televising of trained animal act presented at § 4[b]
Handbills—
reference to plaintiff in § 20[a]
use of plaintiff's photographs on § 4[a]
Hatcheck girl in public club, use of pictures of, in club advertisements § 10[b]
Hat designer, use of name of § 14
Health studio patron, duration of consent to use of "before" and "after" pictures of §§ 11[b], 13
History of strikebreaking, publishing plaintiff's photograph and name in volume comprising § 4[b]
Homicide, magazine article about, published without consent of parents of victim § 4[b]
Identification of plaintiff, sufficiency of § 6
Implied consent to use of picture § 10[b]
Incidental use of name or picture—
advertisement publicizing article or film of public interest as making only incidental use of name or picture § 22
effect of incidental use of name § 7
Injunctive restraint of use of name or picture—
circumstances not warranting §§ 9[b], 21[b]
circumstances warranting §§ 9[b], 14, 15, 21[c]
Inquiring photographer newspaper column, use of name and picture in § 4[b]
Intention or malice of defendant as factor §§ 3, 4, 8
Introduction § 1
Inventor—
use of name of, as part of defendant's corporate name § 15
use of picture of, and purported certificates by, on labels of medical preparations § 14

Irrelevance of photograph to accompanying newspaper article as indicating use to promote sale of publication § 19
Knowledge. Mistake, use of picture by, infra
Labels of product, name or picture used on §§ 6, 14
Labor union's handbills or posters, use of plaintiff's picture on § 4[a]
"Land yacht" vehicle, picture of plaintiff standing next to, published in science–type magazine § 4[b]
Lawyer, using name of § 4[a]
in advertising copying machine § 13
Limitation upon right of action §§ 5- 12
Literary critic's opinion of book, publisher's book introduction misrepresenting §§ 4[a], 16
Lockets sold by five–and–ten cent stores, use of plaintiff's photographs in §§ 4[a], 21[a]
Magazine—
article describing forthcoming Broadway play as being based on true events involving plaintiff § 4[a]
confession–type fiction magazine, publishing plaintiff's picture in § 4[a]
detective–type magazine §§ 4[b], 19
name of plaintiff used as name of character in fiction story in § 4[a]
picture of plaintiff published in connection with article in §§ 4, 21[b]
to illustrate article dealing with recent medical development § 4[b]
police gazette–type publication, picture published in § 4[b]
Malice, effect of presence or absence of § 8
Manikin—
as "portrait or picture" within meaning of statute § 6
model posing for manikin for use by employer § 10[a]
unauthorized sale of copies of §§ 6, 10[a]
Marriage of plaintiff, newspaper twice publishing advertisement mentioning § 13
Medical journal or magazine—
picture of plaintiff used to illustrate article by physicians in §§ 4[a], 21[b]
publication of physician's research paper in altered form in, under his name as author § 16
unauthorized use of physician's name as co–author of article in § 16
Medical preparation—
advertisement using picture and purported indorsement of pills by prominent person § 13
use of famous inventer's picture and purported certificate on labels of § 14
Minor's name or picture §§ 9[b], 19, 21[a]
consent to use, supra
Misrepresentation of authorship or statements §§ 4, 16
Mistake, use of picture by §§ 8, 12[a], 13, 18
newspaper publisher using advertisement supplied by advertiser, without knowing that picture was not that of person
named in text § 13
Mitigation of damages. Damages, supra
Model—
arrangement with modeling agency as waiver of right of privacy against use of picture in advertisement § 10[b]
scope and effect of release or consent given by §§ 10, 12[a], 17
publication of picture with publicity item concerning entry of beauty contest as within scope of agreement with
modeling agency § 10[b]
studio's manufacture and sale of duplicate copies of manikin for which model posed § 10[a]
use of picture of §§ 10[b], 12[a]
in substantially altered condition § 17
Motion picture—

consent of plaintiff. Consent to use, supra film relating to White Slave Traffic showing factory building with sign
bearing name of plaintiff §§ 4[b], 7
letters promoting, unauthorized signing of, with name of plaintiff §§ 6, 16, 20[a]
newsreels—
containing plaintiff's picture and name in reporting solution of murder mystery in which plaintiff aided police
§ 4[b]
posters advertising, use of plaintiff's name or picture on § 22
reference to plaintiff's gymnasium spoken by character in § 7
semi–fictional portrayal of deceased entertainer in § 4[b]
shipwreck, reconstructed story about, repeatedly exhibiting name and purported likeness of ship's wireless operator
§ 4[a]
showing performance of cesarean section operation upon plaintiff §§ 4[a], 10[a]
Musician §§ 12[b], 20[a]
Newspaper—
advertisement in, using name or picture of plaintiff §§ 7, 8, 10[b], 11- 13, 17, 18, 20[b], 21[b], 22
news or general article or illustration therewith §§ 4, 19
news item printed in paid advertising space in newspaper but otherwise unrelated to accompanying advertising
matter § 7
sale of cartoon made from photograph of plaintiff to other newspapers §§ 4[a], 21[b]
Newsworthy event, use made as within permissible treatment of § 4[b]
Nominal damages—
circumstances warranting § 21[a]
circumstances warranting nominal damages only §§ 8, 9[b], 11[a]
mistake in using plaintiff's picture in advertisement as limiting liability to only nominal damages § 8
Non–actionable prior publication, use of name or picture in advertising of § 22
Oral consent. Consent to use, supra
Particular uses of name or likeness as invasion of privacy §§ 13- 22
Patterns, use of artist's name in advertising §§ 4[a], 20[a]
Pen name of author identical to plaintiff's name, accident and coincidence in use and advertising of § 8
Perfume, plaintiff consenting to use of her name and portrait in promotion of § 11[b]
Phonograph records, use of performing musician's name in connection with sale of reproductions made from § 20[a]
Photographer employed by plaintiff—
permitting patron's photograph to be displayed by merchant for advertising purposes § 21[a]
sale of patron's photograph to newspaper § 4[a]
using patron's photograph on advertising postcards and enlargements used by own salesmen § 21[a]
Physical training instructor, photograph of, in magazine article discussing relationship between muscular development and
virility § 4[b]
Physician—
publishing photograph of patient as part of article on disease or condition §§ 4[a], 21[b]
unauthorized use of name of § 16
Pianist, use of name of § 20[a]
Pleadings in litigation, unauthorized use of name in § 4[b]
Posed night club scene in sensational magazine, use of young woman's picture in § 4[b]
Posters, use of plaintiff's picture on §§ 4[a], 21[a], 22
slightly altered picture of actress § 6
Practice pointers § 2[b]
Preliminary matters §§ 1- 4

Press book synopsis of motion picture, use of plaintiff's name in § 7

Primary purpose of use as being to increase circulation of defendant's publication § 19
Printed fabric with pattern reproducing portions of newspaper articles including mention of plaintiff, defendant marketing § 7
Product—
purported endorsement of § 13
use of name on § 14
Program of sporting event, publication of picture in § 4[a]
Public interest, use as report of matter of § 4[b]
Public personages—
right of privacy held not waived by § 12[b]
right of privacy held waived by § 12[a]
special rules as to consent or waiver by § 12
Purported endorsement of product or services, use in connection with § 13
Radio broadcast, use of plaintiff's stage name in advertising message on § 6
Railway company's advertisement showing safe way to enter and leave car, use of plaintiff's picture in § 4[a]
Real estate company's advertising, use of picture of client's family in § 21[a]
Related matters § 1[b]
Release. Consent to use, supra
Reprinting picture from news story and supplying copies to defendant's salesman for use in making sales § 21[a]
Republishing newsworthy picture of plaintiff for purpose of advertising magazine in which it originally appeared § 22
Revocation or revocability of consent § 11[b]
Risque story, use of minor girl's photograph in negligee to illustrate § 19
Safes, use of motel keeper's name in advertisement of § 20[a]
Sale of picture or likeness—
newspaper's sale of cartoon made from photograph of plaintiff to other newspapers §§ 4[a], 21[b]
photographer's sale of patron's photograph to newspaper § 4[a]
Sales kit material, defendant's unauthorized use of photographs of customer's family in § 21[a]
School principal, magazine's unauthorized advertisement of recommendation of article expressed by § 13
Scope of annotation § 1[a]
Services of defendant, purported endorsement of § 13
Shipwreck, fictionalized motion picture story about, with actor appearing as plaintiff wireless operator § 4[a]
Sight–seeing motion picture showing plaintiff at work of vending food § 4[a]
Signature of plaintiff, employer's continued use of, on correspondence, after termination of employment § 11[a]
Sign denoting plaintiff's business location, motion picture showing §§ 4[b], 7
Single brief reference to plaintiff as owner of gymnasium, spoken in course of fictional motion picture § 7
Soldier's picture, originally published by Army in furthering war information policy, corporation's use of § 12[a]
Sports personalities—
baseball player—
pictures of, included in or with packages of gum, popcorn, or like §§ 4[b], 12, 13
publication of fictionalized biography of § 4[a]
basketball player § 10[b]
boxer §§ 4[b], 19
name of, used repeatedly as name of prominent character in fiction story in magazine § 4[a]
football player §§ 10[b], 12[a], 21[a]
professional golfer §§ 12[b], 20[a]
Stage name—
misnaming picture of performer by captioning with stage name of another person § 6

unauthorized use of § 6
State as subject to suit for unauthorized use of individual's name for advertising or trade purposes § 5
Statement of plaintiff, use misrepresenting §§ 4[a], 16
Store customer, showing picture of, in motion picture advertising store § 21[c]
Suggestive letters from woman, apparently signed by plaintiff, motion picture producer's transmittal of great number of §§
16, 20[a]
Summary § 2[a]
Surgical operation upon plaintiff, motion picture showing performance of § 4[a]
Surname only, use of §§ 6, 15, 20[a]
Telephone directory advertising section, use of plaintiff's photograph in § 21[b]
Television broadcast—
consent or release by person hired to appear in film for use on § 10[b]
contestant appearing without knowledge that program was "rigged," § 4[a]
use of plaintiff's name or picture on §§ 4, 9[b], 10[b], 21[c]
character representing and bearing name of plaintiff, program including § 21[c]
using fictitious names in dramatizing plaintiff's conviction and subsequent pardon § 4[b]
Trade, what constitutes use for purposes of § 4
Trade name of corporation, use of plaintiff's name in § 15
Trade newspaper for clothing industry, fashion illustrating photographs in § 4[b]
Trained animal act, televising without authorization, when performed at half time of commercially sponsored televised
football game § 4[b]
Undertaker, newspaper advertisement by § 21[b]
Vendor of food, sight–seeing motion picture showing view of § 4[a]
Voice, cartoon character in television commercial provided with voice imitating well known voice of plaintiff § 6
Waiver of right of privacy—
by giving consent to use of name or picture §§ 9- 11
consent to use of surname in trade name of corporation § 15
by seeking public acclaim or becoming a public personage § 12
failure to make timely objection to use § 16
soldier in United States Army as not waiving right against private advertising use of picture originally published by
Army authorities § 12[a]
Whisky advertisements, use of woman's picture as indorser of product §§ 8, 13, 18
Who may be sued § 5
Who may bring suit § 5
Written consent. Consent to use, supra
Table of Cases, Laws, and Rules
United States
U.S. Const. Amend. I. See 4[b], 5, 21[a]
Supreme Court
Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967) — 2[b], 3, 8, 22
First Circuit
Lahr v. Adell Chemical Co., 300 F.2d 256 (1st Cir. 1962) — 3, 6, 20[a]

McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006) — 3

Sperry Rand Corp. v. Hill, 356 F.2d 181, 23 A.L.R.3d 853 (1st Cir. 1966) — 16
Second Circuit
Allen v. National Video, Inc., 610 F. Supp. 612 (S.D. N.Y. 1985) — 6
Fignole v. Curtis Pub. Co., 247 F. Supp. 595 (S.D. N.Y. 1965) — 4[b]
Galella v. Onassis, 353 F. Supp. 196 (S.D. N.Y. 1972) — 21[a]
Gardella v. Log Cabin Products Co., 89 F.2d 891 (C.C.A. 2d Cir. 1937) — 6
Grant v. Esquire, Inc., 367 F. Supp. 876 (S.D. N.Y. 1973) — 4[a]
Levey v. Warner Bros. Pictures, 57 F. Supp. 40 (S.D. N.Y. 1944) — 6
Lohan v. Perez, 924 F. Supp. 2d 447 (E.D. N.Y. 2013) — 7, 20[b]
Man v. Warner Bros. Inc., 317 F. Supp. 50 (S.D. N.Y. 1970) — 21[c]
Manger v. Kree Institute of Electrolysis, 233 F.2d 5 (2d Cir. 1956) — 16
Negri v. Schering Corp., 333 F. Supp. 101 (S.D. N.Y. 1971) — 4[a]
Neyland v. Home Pattern Co., 65 F.2d 363 (C.C.A. 2d Cir. 1933) — 4[a], 20[a]
Sidis v. F-R Pub. Corporation, 113 F.2d 806, 138 A.L.R. 15 (C.C.A. 2d Cir. 1940) — 22
Third Circuit
Eagle's Eye, Inc. v. Ambler Fashion Shop, Inc., 627 F. Supp. 856 (E.D. Pa. 1985) — 5
Fourth Circuit
Falwell v. Flynt, 797 F.2d 1270, 21 Fed. R. Evid. Serv. 401 (4th Cir. 1986) — 20[b], 21[b]
Fifth Circuit
Colgate-Palmolive Co. v. Tullos, 219 F.2d 617 (5th Cir. 1955) — 18
Faloona by Fredrickson v. Hustler Magazine, Inc., 607 F. Supp. 1341 (N.D. Tex. 1985) — 4[b]
Mahaffey v. Official Detective Stories, Inc., 210 F. Supp. 251 (W.D. La. 1962) — 4[b]
O'Brien v. Pabst Sales Co., 124 F.2d 167 (C.C.A. 5th Cir. 1941) — 21[a]
Sixth Circuit
Bosley v. Wildwett.com, 310 F. Supp. 2d 914 (N.D. Ohio 2004) — 21[a]
Carson v. Here's Johnny Portable Toilets, Inc., 498 F. Supp. 71 (E.D. Mich. 1980) — 6
Seventh Circuit
Branson v. Fawcett Publications, 124 F. Supp. 429 (E.D. Ill. 1954) — 4[a]
Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 18 Fed. R. Evid. Serv. 273 (7th Cir. 1985) — 21[b]
Leto v. RCA Corp., 355 F. Supp. 2d 921 (N.D. Ill. 2004) — 21[a]
Leto v. RCA Corp., 341 F. Supp. 2d 1001 (N.D. Ill. 2004) — 21[c]
Peck v. Tribune Co., 154 F. 330 (C.C.A. 7th Cir. 1907) — 8, 18
Winterland Concessions Co. v. Sileo, 528 F. Supp. 1201 (N.D. Ill. 1981) — 14
Eighth Circuit
Carson v. National Bank of Commerce Trust and Sav., 356 F. Supp. 811 (D. Neb. 1973) — 20[b], 21[a]

Ninth Circuit
Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996) — 6, 7
Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998) — 19
Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) — 17
Page v. Something Weird Video, 960 F. Supp. 1438 (C.D. Cal. 1996) — 21[b], 22
Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) — 21[c]
Perkins v. Linkedin Corporation, 53 F. Supp. 3d 1222 (N.D. Cal. 2014) — 20[a]
Pooley v. National Hole-In-One Ass'n, 89 F. Supp. 2d 1108 (D. Ariz. 2000) — 7
Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002) — 3
Tenth Circuit
Donahue v. Warner Bros. Pictures, 194 F.2d 6 (10th Cir. 1952) — 4[a], 4[b]
District of Columbia Circuit

Bernstein v. National Broadcasting Co., 129 F. Supp. 817 (D. D.C. 1955) — 4[b]
Klein v. McGraw-Hill, Inc., 263 F. Supp. 919 (D. D.C. 1966) — 4[b]
Lane v. Random House, Inc., 985 F. Supp. 141 (D.D.C. 1995) — 4[b], 7
Alabama
Kyser-Smith v. Upscale Communications, Inc., 873 F. Supp. 1519 (M.D. Ala. 1995) (applying Ala law) — 21[b]
Minnifield v. Ashcraft, 903 So. 2d 818 (Ala. Civ. App. 2004) — 3
Schifano v. Greene County Greyhound Park, Inc., 624 So. 2d 178 (Ala. 1993) — 6, 21[b]
Arkansas
Olan Mills, Inc. of Tex. v. Dodd, 234 Ark. 495, 353 S.W.2d 22 (1962) — 21[a]
Stanley v. General Media Communications, Inc., 149 F. Supp. 2d 701 (W.D. Ark. 2001) (applying Arkansas law) — 4[b]
California
Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996) (applying Cal law) — 20[a]
Baugh v. CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993) (applying Cal law) — 4[b], 21[c]
Cher v. Forum Intern., Ltd., 692 F.2d 634 (9th Cir. 1982) (applying Cal law) — 19
Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090 (N.D. Cal. 2011) (applying California law) — 3
Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 106 Cal. Rptr. 2d 126, 21 P.3d 797 (2001) — 14
De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 230 Cal. Rptr. 3d 625 (2d Dist. 2018) — 22
Eastwood v. Superior Court, 149 Cal. App. 3d 409, 198 Cal. Rptr. 342 (2d Dist. 1983) — 19
Fairfield v. American Photocopy Equipment Co., 138 Cal. App. 2d 82, 291 P.2d 194 (2d Dist. 1955) — 8
Kerby v. Hal Roach Studios, 53 Cal. App. 2d 207, 127 P.2d 577 (2d Dist. 1942) — 6, 16, 20[a]
Maheu v. CBS, Inc., 201 Cal. App. 3d 662, 247 Cal. Rptr. 304 (2d Dist. 1988) — 4[b]
Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) (applying California law) — 6
Page v. Something Weird Video, 960 F. Supp. 1438 (C.D. Cal. 1996) (applying Cal law) — 21[a]

Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) (applying California law) — 3, 21[b]
Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318, 79 Cal. Rptr. 2d 207 (2d Dist. 1997) — 22
Stilson v. Reader's Digest Assn., Inc., 28 Cal. App. 3d 270, 104 Cal. Rptr. 581 (1st Dist. 1972) — 5
White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992) (applying Cal law) — 21[b]
Colorado
Donchez v. Coors Brewing Co., 392 F.3d 1211 (10th Cir. 2004) (applying Colorado law) — 6, 20[b]
Fitzsimmons v. Olinger Mortuary Ass'n, 91 Colo. 544, 17 P.2d 535 (1932) — 21[b]
Joe Dickerson & Associates, LLC v. Dittmar, 34 P.3d 995 (Colo. 2001) — 3, 21[b]
McCreery v. Miller's Grocerteria Co., 99 Colo. 499, 64 P.2d 803 (1936) — 21[a]
Connecticut
Korn v. Rennison, 21 Conn. Supp. 400, 156 A.2d 476 (Super. Ct. 1959) — 21[b]
District of Columbia
Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580 (D.C. 1985) — 21[c]
Florida
Byrd v. Hustler Magazine, Inc., 433 So. 2d 593 (Fla. 4th DCA 1983) — 17
Epic Metals Corp. v. CONDEC, Inc., 867 F. Supp. 1009 (M.D. Fla. 1994) (applying Fla law) — 6, 21[b]
Facchina v. Mutual Benefits Corp., 735 So. 2d 499 (Fla. 4th DCA 1999) — 14
Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002) (applying Florida law) — 3, 21[c]
Loft v. Fuller, 408 So. 2d 619 (Fla. 4th DCA 1981) — 3, 4[b], 5.5, 19
Tyne ex rel. Tyne v. Time Warner Entertainment Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002) (applying Florida law) — 19
Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. 4th DCA 2004) — 5, 20[a]
Georgia
Bullard v. MRA Holding, LLC, 292 Ga. 748, 740 S.E.2d 622 (2013) — 21[c]
Cabaniss v. Hipsley, 114 Ga. App. 367, 151 S.E.2d 496 (1966) — 6, 8, 18
Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., 250 Ga. 135, 296 S.E.2d 697
(1982) — 3, 5
Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 508 F. Supp. 854 (N.D. Ga.
1981) (construing Georgia law) — 5.5
Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905) — 21[b]
Somerson v. McMahon, 956 F. Supp. 2d 1345 (N.D. Ga. 2012) (applying Georgia law) — 3
Tanner-Brice Co. v. Sims, 174 Ga. 13, 161 S.E. 819 (1931) — 15
Illinois
Buzinski v. DoAll Co. (State Report Title: Buzinski v. DoAll Co.), 31 Ill. App. 2d 191, 175 N.E.2d 577 (1st Dist. 1961) — 4[b]
Dabbs v. Robert S. Abbott Pub. Co., 44 Ill. App. 2d 438, 193 N.E.2d 876 (1st Dist. 1963) — 21[b]
Leopold v. Levin, 45 Ill. 2d 434, 259 N.E.2d 250 (1970) — 19, 20[b]

Smith v. WGN, Inc., 47 Ill. App. 2d 183, 197 N.E.2d 482 (1st Dist. 1964) — 21[c]
Kansas
Johnson v. Boeing Airplane Co., 175 Kan. 275, 262 P.2d 808 (1953) — 21[b]
Kunz v. Allen, 102 Kan. 883, 172 P. 532 (1918) — 21[c]
Kentucky
Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001) — 5
Louisiana
Slocum v. Sears Roebuck & Co., 542 So. 2d 777 (La. Ct. App. 3d Cir. 1989) — 21[a]
Tooley v. Canal Motors, Inc., 296 So. 2d 453 (La. Ct. App. 4th Cir. 1974) — 8, 20[a]
Maine
Dempsey v. National Enquirer, 702 F. Supp. 934 (D. Me. 1989) (applying Me law) — 4[b], 19
Maryland
Comins v. Discovery Communications, Inc., 200 F. Supp. 2d 512 (D. Md. 2002) (applying Maryland law) — 3
Massachusetts
Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E.2d 736 (1966) — 3
Shepard's Pharmacy, Inc. v. Stop & Shop Companies, Inc., 37 Mass. App. Ct. 516, 640 N.E.2d 1112 (1994) — 20[a], 21[b]
Michigan
Battaglieri v. Mackinac Center For Public Policy, 261 Mich. App. 296, 680 N.W.2d 915, 188 Ed. Law Rep. 497 (2004) — 3, 4[a]
Pallas v. Crowley-Milner & Co., 334 Mich. 282, 54 N.W.2d 595 (1952) — 21[b]
Minnesota
Stubbs v. North Memorial Medical Center, 448 N.W.2d 78 (Minn. Ct. App. 1989) — 21[b]
Mississippi
American Guarantee and Liability Ins. Co. v. 1906 Co., 273 F.3d 605 (5th Cir. 2001) (applying Mississippi law) — 3
Gales v. CBS Broadcasting, Inc., 269 F. Supp. 2d 772 (S.D. Miss. 2003) (applying Mississippi law) — 3
Harbin v. Jennings, 734 So. 2d 269 (Miss. Ct. App. 1999) — 21[a]
Missouri
Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) — 3
Munden v. Harris, 153 Mo. App. 652, 134 S.W. 1076 (1911) — 21[a]
Montana
Bennett v. Gusdorf, 101 Mont. 39, 53 P.2d 91 (1935) — 21[a]
Gilham v. Burlington Northern, Inc., 514 F.2d 660 (9th Cir. 1975) (applying Mont law) — 21[b]
Nebraska
Carson v. National Bank of Commerce Trust and Sav., 501 F.2d 1082 (8th Cir. 1974) (applying Neb law) — 3
Wilkinson v. Methodist, Richard Young Hosp., 259 Neb. 745, 612 N.W.2d 213 (2000) — 20[b]

Nevada
People for Ethical Treatment of Animals v. Bobby Berosini, Ltd., 110 Nev. 78, 867 P.2d 1121 (1994) — 3, 20[a], 21[a]
New Hampshire
Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 2008 DNH 58 (D.N.H. 2008) (applying New Hampshire law) — 3
New Jersey
Canessa v. J. I. Kislak, Inc., 97 N.J. Super. 327, 235 A.2d 62 (Law Div. 1967) — 20[a], 21[a]
Castro v. NYT Television, 370 N.J. Super. 282, 851 A.2d 88 (App. Div. 2004) — 4[b]
Edison v. Edison Polyform Mfg. Co., 73 N.J. Eq. 136, 67 A. 392 (Ch. 1907) — 14, 15
Faber v. Condecor, Inc., 195 N.J. Super. 81, 477 A.2d 1289 (App. Div. 1984) — 4[a]
Palmer v. Schonhorn Enterprises, Inc., 96 N.J. Super. 72, 232 A.2d 458 (Ch. Div. 1967) — 20[a]
Tellado v. Time-Life Books, Inc., 643 F. Supp. 904 (D.N.J. 1986) (applying NJ law) — 4[a], 22
New York
Adrian v. Unterman, 281 A.D. 81, 118 N.Y.S.2d 121 (1st Dep't 1952) — 6, 20[a]
Albert v. New York Tel. Co., 28 Misc. 2d 296, 204 N.Y.S.2d 36 (Sup 1960) — 21[b]
Alfano v. NGHT, Inc., 623 F. Supp. 2d 355 (E.D. N.Y. 2009) (applying New York law) — 21[a]
Allen v. Men's World Outlet, Inc., 679 F. Supp. 360 (S.D. N.Y. 1988) (applying New York law) — 3
Almind v. Sea Beach Ry. Co., 157 A.D. 230, 141 N.Y.S. 842 (2d Dep't 1913) — 4[a], 21[a]
Alvarado v. K-III Magazine Corp., 203 A.D.2d 135, 610 N.Y.S.2d 241 (1st Dep't 1994) — 4[b]
Antonetty v. Cuomo, 131 Misc. 2d 1041, 502 N.Y.S.2d 902 (Sup 1986) — 5.5
Association for Preservation of Freedom of Choice, Inc. v. Nation Co., 35 Misc. 2d 42, 228 N.Y.S.2d 628 (Sup 1962) — 4[a]
Bement v. N.Y.P. Holdings, Inc., 307 A.D.2d 86, 760 N.Y.S.2d 133 (1st Dep't 2003) — 4[b]
Bernham v. Bernham-Stein Furs, Inc., 123 N.Y.S.2d 872 (Sup 1953) — 15
Beverley v. Choices Women's Medical Center, Inc., 78 N.Y.2d 745, 579 N.Y.S.2d 637, 587 N.E.2d 275 (1991) — 4[a], 21[b]
Beverley v. Choices Women's Medical Center, Inc., 141 A.D.2d 89, 532 N.Y.S.2d 400 (2d Dep't 1988) — 4[a]
Binns v. Vitagraph Co. of America, 210 N.Y. 51, 103 N.E. 1108 (1913) — 4[a]
Blumenthal v. Picture Classics, 235 A.D. 570, 257 N.Y.S. 800 (1st Dep't 1932) — 4[a], 21[c]
Booth v. Curtis Pub. Co., 15 A.D.2d 343, 223 N.Y.S.2d 737 (1st Dep't 1962) — 22
Bowerman v. Tomhave, 414 F. Supp. 7 (E.D. Pa. 1975) (applying New York law) — 22
Brinkley v. Casablancas, 80 A.D.2d 428, 438 N.Y.S.2d 1004 (1st Dep't 1981) — 21[a]
Brociner v. Radio Wire Television, Inc., 15 Misc. 2d 843, 183 N.Y.S.2d 743 (Sup 1959) — 16
Bytner v. Capital Newspaper, Div. of Hearst Corp., 112 A.D.2d 666, 492 N.Y.S.2d 107 (3d Dep't 1985) — 4[b]
Cafferty v. Scotti Bros. Records, Inc., 969 F. Supp. 193 (S.D. N.Y. 1997) (applying New York law) — 20[b]
Callas v. Whisper, Inc., 198 Misc. 829, 101 N.Y.S.2d 532 (Sup 1950) — 4[b]
Cardy v. Maxwell, 9 Misc. 2d 329, 169 N.Y.S.2d 547 (Sup 1957) — 4[b]
Chimarev v. TD Waterhouse Investor Services, Inc., 280 F. Supp. 2d 208 (S.D. N.Y. 2003) (applying New York law) — 3
Cohn v. National Broadcasting Co., Inc., 67 A.D.2d 140, 414 N.Y.S.2d 906 (1st Dep't 1979) — 20[b]

Coleman v. Ted's Auto Sales, Inc., 33 Misc. 2d 739, 34 Misc. 2d 100, 227 N.Y.S.2d 693 (Sup 1962) — 4[a], 20[a]
Colon v. City of Rochester, 307 A.D.2d 742, 762 N.Y.S.2d 749 (4th Dep't 2003) — 3
Colyer v. Richard K. Fox Pub. Co., 162 A.D. 297, 146 N.Y.S. 999 (2d Dep't 1914) — 4[b]
Costanza v. Seinfeld, 279 A.D.2d 255, 719 N.Y.S.2d 29 (1st Dep't 2001) — 4[b], 6
Costanza v. Seinfeld, 181 Misc. 2d 562, 693 N.Y.S.2d 897 (Sup 1999) — 20[b]
Creel v. Crown Publishers, Inc., 115 A.D.2d 414, 496 N.Y.S.2d 219 (1st Dep't 1985) — 4[b]
Cuccioli v. Jekyll & Hyde Neue Metropol Bremen Theater Produktion GmbH & Co., 150 F. Supp. 2d 566 (S.D. N.Y. 2001)
(applying New York law) — 5
Dache v. Abraham & Straus, 39 N.Y.S.2d 981 (Sup 1942) — 14
Dahl v. Columbia Pictures Corp., 12 Misc. 2d 574, 166 N.Y.S.2d 708 (Sup 1957) — 17
Dallesandro v. Henry Holt & Co., 4 A.D.2d 470, 166 N.Y.S.2d 805 (1st Dep't 1957) — 4[b]
D'Altomonte v. New York Herald Co., 208 N.Y. 596, 102 N.E. 1101 (1913) — 4[b], 16
D'Andrea v. Rafla-Demetrious, 146 F.3d 63 (2d Cir. 1998) (applying New York law) — 7
Delinger v. American News Co., 6 A.D.2d 1027, 178 N.Y.S.2d 231 (1st Dep't 1958) — 4[b]
Doe v. Darien Lake Theme Park & Camping Resort, Inc., 277 A.D.2d 967, 715 N.Y.S.2d 825 (4th Dep't 2000) — 7
Donohue v. McCall Corp., 51 N.Y.S.2d 727 (Sup 1944) — 4[b]
Durgom v. Columbia Broadcasting System, Inc., 29 Misc. 2d 394, 214 N.Y.S.2d 752 (Sup 1961) — 21[c]
Eliah v. Ucatan Corp., 433 F. Supp. 309 (W.D. N.Y. 1977) (applying New York law) — 3
Eliot v. Jones, 66 Misc. 95, 120 N.Y.S. 989 (Sup 1910) — 14
Emanuel v. Free Lance Photographers Guild, Inc., 28 Misc. 2d 503, 219 N.Y.S.2d 626 (App. Term 1960) — 8, 18
Everett v. Carvel Corp., 70 Misc. 2d 734, 334 N.Y.S.2d 922 (Sup 1972) — 21[b]
Feeney v. Young, 191 A.D. 501, 181 N.Y.S. 481 (1st Dep't 1920) — 4[a]
Felice v. Delporte, 136 A.D.2d 913, 524 N.Y.S.2d 919 (4th Dep't 1988) — 21[a]
Fisher v. Murray M. Rosenberg, Inc., 175 Misc. 370, 23 N.Y.S.2d 677 (Sup 1940) — 21[a], 21[b]
Fleischer v. W.P.I.X. Inc., 30 Misc. 2d 17, 213 N.Y.S.2d 632 (Sup 1961) — 4[b]
Flores v. Mosler Safe Co., 7 N.Y.2d 276, 196 N.Y.S.2d 975, 164 N.E.2d 853 (1959) — 7, 20[a]
Foster v. Svenson, 128 A.D.3d 150, 7 N.Y.S.3d 96 (1st Dep't 2015) — 21[a]
Francica v. Fun World, 138 Misc. 2d 628, 524 N.Y.S.2d 612 (Sup 1988) — 21[a]
Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 480 N.E.2d 349 (1985) — 4[b], 19
Friedan v. Friedan, 414 F. Supp. 77 (S.D. N.Y. 1976) (applying New York law) — 19, 21[c]
Fullerton v. Kennedy, 19 Misc. 2d 502, 187 N.Y.S.2d 213 (Sup 1959) — 8, 20[b]
Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485 (1952) — 4[b]
Gavrilov v. Duell, Sloane & Pearce, 84 N.Y.S.2d 320 (Sup 1948) — 4[b]
Geisel v. Poynter Products, Inc., 295 F. Supp. 331 (S.D. N.Y. 1968) (applying New York law) — 5, 14
Gieseking v. Urania Records, Inc., 17 Misc. 2d 1034, 155 N.Y.S.2d 171 (Sup 1956) — 20[a]
Goldberg v. Columbia Broadcasting System, Inc., 25 Misc. 2d 129, 205 N.Y.S.2d 611 (Sup 1960) — 4[a]
Grant v. Esquire, Inc., 367 F. Supp. 876 (S.D. N.Y. 1973) (applying New York law) — 17, 21[b]
Griffin v. Law Firm of Harris, Beach, Wilcox, Rubin and Levey, 112 A.D.2d 514, 490 N.Y.S.2d 919 (3d Dep't 1985) — 4[b]
Griffin v. Medical Soc. of State of N.Y., 7 Misc. 2d 549, 11 N.Y.S.2d 109 (Sup 1939) — 4[a], 21[b]
Groden v. Random House, Inc., 61 F.3d 1045, 143 A.L.R. Fed. 721 (2d Cir. 1995) (applying New York law) — 7

Guerrero v. Carva, 10 A.D.3d 105, 779 N.Y.S.2d 12 (1st Dep't 2004) — 3, 4[b]
Harris v. H.W. Gossard Co., 194 A.D. 688, 185 N.Y.S. 861 (1st Dep't 1921) — 21[a]
Hemingway's Estate v. Random House, Inc., 23 N.Y.2d 341, 296 N.Y.S.2d 771, 244 N.E.2d 250, 32 A.L.R.3d 605 (1968)
— 4[b]
Hill v. Hayes, 18 A.D.2d 485, 240 N.Y.S.2d 286 (1st Dep't 1963) — 4[a], 19
Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D. N.Y. 2002) (applying New York law) — 4[b]
Holmes v. Underwood & Underwood, 225 A.D. 360, 233 N.Y.S. 153 (1st Dep't 1929) — 4[a]
Holt v. Columbia Broadcasting System, Inc., 22 A.D.2d 791, 253 N.Y.S.2d 1020 (2d Dep't 1964) — 4[a]
Humiston v. Universal Film Mfg. Co., 189 A.D. 467, 178 N.Y.S. 752 (1st Dep't 1919) — 4[b], 22
Ippolito v. Ono-Lennon, 139 Misc. 2d 230, 526 N.Y.S.2d 877 (Sup 1988) — 4[a]
Ivory v. Widaben Realty Corp., 5 A.D.2d 266, 171 N.Y.S.2d 431 (1st Dep't 1958) — 4[b]
Jaccard v. R.H. Macy & Co., 265 A.D. 15, 37 N.Y.S.2d 570 (1st Dep't 1942) — 14
Jaggard v. R.H. Macy & Co., 176 Misc. 88, 26 N.Y.S.2d 829 (Sup 1941) — 5
James v. Delilah Films, Inc., 144 Misc. 2d 374, 544 N.Y.S.2d 447 (Sup 1989) — 21[c]
Jansen v. Hilo Packing Co., 116 N.Y.S.2d 251 (Sup 1952) — 4[b]
Jeffries v. New York Evening Journal Pub. Co., 67 Misc. 570, 124 N.Y.S. 780 (Sup 1910) — 4[b]
John-Frederics, Inc., v. Abraham & Straus, 269 A.D. 693, 53 N.Y.S.2d 658 (2d Dep't 1945) — 14
Kamakazi Music Corp. v. Robbins Music Corp., 534 F. Supp. 69, 34 Fed. R. Serv. 2d 693 (S.D. N.Y. 1982) (applying New
York law) — 19
Kane v. Orange County Publications, 232 A.D.2d 526, 649 N.Y.S.2d 23 (2d Dep't 1996) — 4[b]
Koussevitzky v. Allen, Towne & Heath, 188 Misc. 479, 68 N.Y.S.2d 779 (Sup 1947) — 22
Krieger v. Popular Publications, 167 Misc. 5, 3 N.Y.S.2d 480 (Sup 1938) — 4[a]
Kunz v. Bosselman, 131 A.D. 288, 115 N.Y.S. 650 (2d Dep't 1909) — 21[a]
Ladany v. William Morrow & Co., Inc., 465 F. Supp. 870 (S.D. N.Y. 1978) (applying New York law) — 7, 20[b]
LaForge v. Fairchild Publications, Inc., 23 A.D.2d 636, 257 N.Y.S.2d 127 (1st Dep't 1965) — 4[b]
Lane v. F.W. Woolworth Co., 171 Misc. 66, 11 N.Y.S.2d 199 (Sup 1939) — 4[a], 21[a]
Leary v. Punzi, 179 Misc. 2d 1025, 687 N.Y.S.2d 551 (Sup 1999) — 4[b], 6
Lerman v. Chuckleberry Pub., Inc., 544 F. Supp. 966 (S.D. N.Y. 1982) (applying New York law) — 4[a], 19
Leviston v. Jackson, 43 Misc. 3d 229, 980 N.Y.S.2d 716 (Sup 2013) — 3
Loftus v. Greenwich Lithographing Co., 192 A.D. 251, 182 N.Y.S. 428 (1st Dep't 1920) — 6, 17
Lombardo v. Doyle, Dane & Bernbach, Inc., 58 A.D.2d 620, 396 N.Y.S.2d 661 (2d Dep't 1977) — 6, 21[c]
MacIver v. George Braziller, Inc., 32 Misc. 2d 477, 224 N.Y.S.2d 364 (Sup 1961) — 8
Marks v. Elephant Walk, Inc., 156 A.D.2d 432, 548 N.Y.S.2d 549 (2d Dep't 1989) — 7, 20[b]
McGraw v. Watkins, 49 A.D.2d 958, 373 N.Y.S.2d 663 (3d Dep't 1975) — 21[c]
McNulty v. Press Pub. Co., 136 Misc. 833, 241 N.Y.S. 29 (Sup 1930) — 4[a], 21[b]
Merle v. Sociological Research Film Corporation, 166 A.D. 376, 152 N.Y.S. 829 (1st Dep't 1915) — 4[b], 7
Middleton v. News Syndicate Co., 162 Misc. 516, 295 N.Y.S. 120 (Sup 1937) — 4[b]
Miller v. Madison Square Garden Corp., 176 Misc. 714, 28 N.Y.S.2d 811 (Sup 1941) — 4[a], 21[b]
Moglen v. Varsity Pajamas, Inc., 13 A.D.2d 114, 213 N.Y.S.2d 999 (1st Dep't 1961) — 7
Molina v. Phoenix Sound Inc., 297 A.D.2d 595, 747 N.Y.S.2d 227 (1st Dep't 2002) — 21[a]
Molony v. Boy Comics Publishers, 277 A.D. 166, 98 N.Y.S.2d 119 (1st Dep't 1950) — 4[b]
Morse v. Studin, 283 A.D.2d 622, 725 N.Y.S.2d 93 (2d Dep't 2001) — 4[a]

Myskina v. Conde Nast Publications, Inc, 386 F. Supp. 2d 409 (S.D. N.Y. 2005) (applying New York law) — 21[b]
Namath v. Sports Illustrated, 80 Misc. 2d 531, 363 N.Y.S.2d 276 (Sup 1975) — 19
Negri v. Schering Corp., 333 F. Supp. 101 (S.D. N.Y. 1971) (applying New York law) — 6, 21[b]
New York Magazine, Div. of Primedia Magazines, Inc. v. Metropolitan Transit Authority, 987 F. Supp. 254 (S.D. N.Y. 1997)
(applying New York law) — 19
Oma v. Hillman Periodicals, Inc., 281 A.D. 240, 118 N.Y.S.2d 720 (1st Dep't 1953) — 4[a], 19
Orsini v. Eastern Wine Corp., 190 Misc. 235, 73 N.Y.S.2d 426 (Sup 1947) — 6, 14
Pagan v. New York Herald Tribune, Inc., 32 A.D.2d 341, 301 N.Y.S.2d 120 (1st Dep't 1969) — 4[b]
People on Complaint of Maggio v. Charles Scribner's Sons, 205 Misc. 818, 130 N.Y.S.2d 514 (Magis. Ct. 1954) — 1[a]
People, on Complaint of Stern v. Robert R. McBride & Co., 159 Misc. 5, 288 N.Y.S. 501 (Magis. Ct. 1936) — 4[b]
Pittera v. Parade Publications, Inc., 15 A.D.2d 882, 225 N.Y.S.2d 478 (1st Dep't 1962) — 4[b]
Pittera v. Parade Publications Inc., 29 Misc. 2d 90, 216 N.Y.S.2d 162 (Sup 1961) — 4[a], 21[b]
Rall v. Hellman, 284 A.D.2d 113, 726 N.Y.S.2d 629 (1st Dep't 2001) — 4[b]
Rand v. Hearst Corp., 31 A.D.2d 406, 298 N.Y.S.2d 405 (1st Dep't 1969) — 7, 19
Ravich v. Kling, 17 Misc. 2d 683, 187 N.Y.S.2d 272 (Sup 1959) — 16
Riddle v. MacFadden, 116 A.D. 353, 101 N.Y.S. 606 (1st Dep't 1906) — 21[b]
Rinaldi v. Village Voice, Inc., 47 A.D.2d 180, 365 N.Y.S.2d 199 (1st Dep't 1975) — 4[a], 19
Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902) — 3, 21[a]
Rosemont Enterprises, Inc. v. Urban Systems, Inc., 42 A.D.2d 544, 345 N.Y.S.2d 17 (1st Dep't 1973) — 20[a]
Rosenthal v. Kotler, 26 Misc. 2d 947, 208 N.Y.S.2d 167 (Sup 1960) — 20[b]
Rossi v. F. W. Woolworth Co., 56 A.D.2d 566, 392 N.Y.S.2d 9 (1st Dep't 1977) — 21[b]
Rubino v. Slaughter, 136 N.Y.S.2d 873 (Sup 1954) — 4[a], 21[a]
Russell v. Marboro Books, 18 Misc. 2d 166, 183 N.Y.S.2d 8 (Sup 1959) — 17
Ryan v. Volpone Stamp Co., Inc., 107 F. Supp. 2d 369 (S.D. N.Y. 2000) (applying New York law) — 14
Sarat Lahiri v. Daily Mirror, 162 Misc. 776, 295 N.Y.S. 382 (Sup 1937) — 4[a], 19
Schneiderman v. New York Post Corp., 31 Misc. 2d 697, 220 N.Y.S.2d 1008 (Sup 1961) — 7
School of Visual Arts v. Kuprewicz, 3 Misc. 3d 278, 771 N.Y.S.2d 804 (Sup 2003) — 4[b]
Seidelman v. State, 202 Misc. 817, 110 N.Y.S.2d 380 (Ct. Cl. 1952) — 5
Selsman v. Universal Photo Books, Inc., 18 A.D.2d 151, 238 N.Y.S.2d 686 (1st Dep't 1963) — 4[a], 21[b]
Semler v. Ultem Publications, 170 Misc. 551, 9 N.Y.S.2d 319 (N.Y. City Ct. 1938) — 4[a], 19
Sherwood v. McGowan, 3 Misc. 2d 234, 152 N.Y.S.2d 658 (Sup 1956) — 21[c]
Shubert v. Columbia Pictures Corp., 189 Misc. 734, 72 N.Y.S.2d 851 (Sup 1947) — 5, 7
Siegel v. Esquire, Inc., 4 A.D.2d 477, 167 N.Y.S.2d 246 (1st Dep't 1957) — 4[b], 21[b]
Simeonov v. Tiegs, 159 Misc. 2d 54, 602 N.Y.S.2d 1014 (N.Y. City Civ. Ct. 1993) — 4[b], 6, 21[a]
Sinclair v. Postal Tel. & Cable Co., 72 N.Y.S.2d 841 (Sup 1935) — 17
Smith v. Long Island Youth Guidance, Inc., 181 A.D.2d 820, 581 N.Y.S.2d 401 (2d Dep't 1992) — 4[b]
Sondik v. Kimmel, 131 A.D.3d 1041, 16 N.Y.S.3d 296 (2d Dep't 2015) — 20[b]
Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 286 N.Y.S.2d 832, 233 N.E.2d 840, 30 A.L.R.3d 196 (1967) — 4[a]
Stephano v. News Group Publications, Inc., 64 N.Y.2d 174, 485 N.Y.S.2d 220, 474 N.E.2d 580 (1984) — 4[b], 19
Stern v. Delphi Internet Services Corp., 165 Misc. 2d 21, 626 N.Y.S.2d 694 (Sup 1995) — 7, 21[a]
Stillman v. Paramount Pictures Corp., 2 A.D.2d 18, 153 N.Y.S.2d 190 (1st Dep't 1956) — 7

Thompson v. Close-Up, Inc., 277 A.D. 848, 98 N.Y.S.2d 300 (1st Dep't 1950) — 4[a], 19
Thompson v. G. P. Putnam's Sons, 40 Misc. 2d 608, 243 N.Y.S.2d 652 (Sup 1963) — 4[a], 4[b], 16
Thompson v. Tillford, 152 A.D. 928, 137 N.Y.S. 523 (2d Dep't 1912) — 20[a]
Tin Pan Apple, Inc. v. Miller Brewing Co., Inc., 737 F. Supp. 826 (S.D. N.Y. 1990) (applying New York law) — 3
Titan Sports, Inc. v. Comics World Corp., 870 F.2d 85 (2d Cir. 1989) (applying New York law) — 4[a], 19
Valeriano v. Rome Sentinel Co., 43 A.D.3d 1357, 842 N.Y.S.2d 805 (4th Dep't 2007) — 4[b]
Velez v. VV Pub. Corp., 135 A.D.2d 47, 524 N.Y.S.2d 186 (1st Dep't 1988) — 4[b], 7
Wallach v. Bacharach, 192 Misc. 979, 80 N.Y.S.2d 37 (Sup 1948) — 7
Ward v. Klein, 10 Misc. 3d 648, 809 N.Y.S.2d 828 (Sup 2005) — 4[b], 21[c]
Welch v. Group W. Productions, Inc., 138 Misc. 2d 856, 525 N.Y.S.2d 466 (Sup 1987) — 4[b], 22
White v. William G. White, 160 A.D. 709, 145 N.Y.S. 743 (1st Dep't 1914) — 15
Young v. Greneker Studios, 175 Misc. 1027, 26 N.Y.S.2d 357 (Sup 1941) — 6
North Carolina
Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938) — 6, 8, 18
Ohio
Martin v. F.I.Y. Theatre Co., 10 Ohio Op. 338, 26 Ohio L. Abs. 67, 1 Ohio Supp. 19, 1938 WL 1509 (C.P. 1938) — 21[a]
Seifer v. PHE, Inc., 196 F. Supp. 2d 622 (S.D. Ohio 2002) (applying Ohio law) — 3
Vinci v. American Can Co., 69 Ohio App. 3d 727, 591 N.E.2d 793 (8th Dist. Cuyahoga County 1990) — 7, 14, 21[a]
Oklahoma
Hazlitt v. Fawcett Publications, Inc., 116 F. Supp. 538 (D. Conn. 1953) (applying Oklahoma law) — 4[a], 19
Oregon
Anderson v. Fisher Broadcasting Companies, Inc., 300 Or. 452, 712 P.2d 803 (1986) — 21[c]
Martinez by Martinez v. Democrat-Herald Pub. Co., Inc., 64 Or. App. 690, 669 P.2d 818, 13 Ed. Law Rep. 866 (1983) — 19
Raymen v. United Senior Ass'n, Inc., 409 F. Supp. 2d 15 (D.D.C. 2006) (applying Oregon law) — 3
Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) (applying Oregon law) — 7
Pennsylvania
AFL Philadelphia LLC v. Krause, 639 F. Supp. 2d 512 (E.D. Pa. 2009) (applying Pennsylvania law) — 3
Harlow v. Buno Co., 36 Pa. D. & C. 101, 1939 WL 2696 (C.P. 1939) — 21[a]
Jenkins v. Dell Pub. Co., 251 F.2d 447 (3d Cir. 1958) (applying Pennsylvania law) — 4[b]
Leverton v. Curtis Pub. Co., 192 F.2d 974 (3d Cir. 1951) (applying Pennsylvania law) — 4[b]
Seale v. Gramercy Pictures, 949 F. Supp. 331 (E.D. Pa. 1996) (applying Pennsylvania law) — 20[b], 21[b], 21[c]
World Wrestling Federation Entertainment Inc. v. Big Dog Holdings, Inc., 280 F. Supp. 2d 413 (W.D. Pa. 2003) (applying
Pennsylvania law) — 3
Puerto Rico
Mercado-Salinas v. Bart Enterprises Intern., Ltd., 747 F. Supp. 2d 275 (D.P.R. 2010) (applying Puerto Rico law) — 3
Rhode Island

Henry v. Cherry & Webb, 30 R.I. 13, 73 A. 97 (1909) — 3

Leddy v. Narragansett Television, L.P., 843 A.2d 481 (R.I. 2004) — 21[c]
Mendonsa v. Time Inc., 678 F. Supp. 967 (D.R.I. 1988) (applying RI law) — 4[a]
South Carolina
Sloan v. South Carolina Dept. of Public Safety, 355 S.C. 321, 586 S.E.2d 108 (2003) — 4[a]
Tennessee
Apple Corps Ltd. v. A.D.P.R., Inc., 843 F. Supp. 342 (M.D. Tenn. 1993) (applying Tenn law) — 4[a], 4[b], 20[a], 20[b]
Cordell v. Detective Publications, Inc., 307 F. Supp. 1212 (E.D. Tenn. 1968) (applying Tenn law) — 4[b]
Martin v. Senators, Inc., 220 Tenn. 465, 418 S.W.2d 660 (1967) — 21[b]
Texas
Gill v. Snow, 644 S.W.2d 222 (Tex. App. Fort Worth 1982) — 20[b]
Utah
Donahue v. Warner Bros. Pictures Distributing Corp., 2 Utah 2d 256, 272 P.2d 177 (1954) — 4[a], 4[b]
Jeppson v. United Television, Inc., 580 P.2d 1087 (Utah 1978) — 20[a]
Vermont
Staruski v. Continental Telephone Co. of Vt., 154 Vt. 568, 581 A.2d 266 (1990) — 16
Virginia
Cornwell v. Sachs, 99 F. Supp. 2d 695 (E.D. Va. 2000) (applying Virginia law) — 20[a]
Falwell v. Flynt, 797 F.2d 1270, 21 Fed. R. Evid. Serv. 401 (4th Cir. 1986) (applying Virginia law) — 4[b]
Town & Country Properties, Inc. v. Riggins, 249 Va. 387, 457 S.E.2d 356 (1995) — 3, 4[a], 7, 20[a]
Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604 (E.D. Va. 2005) (applying Virginia law) — 20[a]
Wisconsin
Bogie v. Rosenberg, 705 F.3d 603, 84 Fed. R. Serv. 3d 773 (7th Cir. 2013) (applying Wisconsin law) — 3
Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 280 N.W.2d 129 (1979) — 3, 14
Judevine v. Benzies-Montanye Fuel & Warehouse Co., 222 Wis. 512, 269 N.W. 295, 106 A.L.R. 1443 (1936) — 3
Prest v. Stein, 220 Wis. 354, 265 N.W. 85 (1936) — 14
I. Preliminary Matters
§ 1[a] Introduction—Scope
This annotation 1 collects the cases which have passed on the question of whether the use of plaintiff's name or likeness in
advertising constitutes an actionable invasion of privacy. 2
Included herein are cases arising under statutes which specifically give a person whose name or picture is used for advertising
purposes a right of action for invasion of privacy, 3 as well as cases arising in those jurisdictions where the right of privacy is
recognized as applying to all unauthorized uses of a person's name or picture.

In this annotation "advertising purposes" is deemed to include the use of a person's name or picture for all types of promotional
endeavors, including the boosting of a publication's circulation, and the use of plaintiff's name to promote a product or company
by naming it after him.
§ 1[b] Introduction—Related matters
Related Annotations are located under the Research References heading of this Annotation.
§ 2[a] Summary—Generally
One whose name or likeness is used, without his consent, in advertising, has a right to recover for an invasion of privacy,
either under common–law principles or under a statute such as exists in New York. 4 Where the statutory right to recover is
limited to publications which use a person's name or likeness for advertising purposes, it is necessary to determine whether the
complained–of publication has been for advertising purposes. While the courts interpret "advertising" and "trade" broadly, 5
they will not find that a person's name or likeness was used for advertising purposes where it is used in the context of an article
published as a matter of public interest. 6
Since the right of privacy is a personal one, a partnership or corporation cannot bring an action for invasion of privacy, 7 and
a plaintiff, in order to recover, must establish that he was the person referred to in the allegedly objectionable advertisement. 8
A mere incidental reference to him, not amounting to a meaningful commercial use of his name, is not sufficient to entitle
him to recover. 9
While the courts are divided as to the effect of lack of malice in the publication, 10 they are agreed that there can be no actionable
invasion of privacy if a plaintiff has consented to the use of his name. 11 Under the New York statute such consent must be in
writing, although oral consent may be pleaded by the defendant in mitigation of damages. 12
The fact that plaintiff has consented to the use of his name or likeness for advertising purposes by defendant does not necessarily
give defendant carte blanche to make any use of such name or picture as he sees fit, since the defendant may have exceeded
the consent. 13 On the other hand, if plaintiff signed a general release or otherwise gave a broad consent, he cannot be heard to
complain if defendant uses his name or picture in a manner not to plaintiff's liking. 14
Consent may explicitly, or by implication, be good only for a limited period of time. It may be terminated by the severance of
an employment relationship, 15 it may lapse by passage of time, 16 and it may be revoked. 17
If plaintiff is a public figure, he may be deemed to have waived his right of privacy, 18 but there is authority to the effect that
even a public personage has recourse against one who seeks to exploit that person's fame for his own benefit. 19
The plaintiff's right of privacy may be invaded by the use of his name or likeness, without his consent, to imply his indorsement
of defendant's product, 20 by the appropriation of his name for promotional purposes, as by using it to identify a product, 1
or by using some other means to identify plaintiff with defendant's business. 2 It may also be invaded by misrepresenting his
authorship of a published item or the statements therein. 3

Similarly, plaintiff may have a cause of action where his picture is altered 4 or used in error, 5 or where his name or picture is
used primarily to increase the circulation of a publication. 6
Recovery may also be had where plaintiff's name is used in any of a number of other ways; 7 and similarly, recovery may be
had for the unauthorized use of a picture for display purposes, 8 in newspapers or other printed publications, 9 or in television
or motionpicture films. 10 But where plaintiff's name or picture is used in an advertisement only to promote a published article
about plaintiff which does not in itself constitute an invasion of privacy, no recovery can be had for the appearance in such
advertisment. 11
§ 2[b] Summary—Practice pointers
General causes of action other than invasion of privacy, in the appropriate form of which causes of action the attorney for the
plaintiff should consider casting a complaint based on a tortious use of the plaintiff's name or likeness for advertising purposes,
include, where circumstances permit, libel, 12 civilly redressable violations of civil rights or other special statutory causes, and
variously designated interferences with personal or business relations.
Once having narrowed the selection to one or more reasonably feasible approaches, the plaintiff's attorney must of course be
alert to fulfil whatever special pleading requirements of his jurisdiction are applicable to the specific cause or causes of action
decided upon, and especially to ascertain the extent to which an election of remedies is or is not necessary, or to determine the
permissibility and effect of alternative pleading.
The defendant's attorney, on the other hand, must provide himself with the argumentative ammunition, whether of a narrowly
pleading or of substantive nature, to enable him to persuade the court, for example, that the plaintiff is seeking to recover in a
cause of action sounding in invasion of privacy which is expressly not recognized by the particular jurisdiction, and, assuming
the pleading of an alternative cause, that he has done so for the very reason that not all of the essential elements of the alternative
cause are properly alleged or within plaintiff's capacity to prove.
Once the decision has been made to bring an action for invasion of privacy, a plaintiff's attorney (or a defendant's attorney for
discovery of the omission) might find it helpful to consult for inclusion the following list of matters some or all of which it
may be essential or advantageous to allege: (1) the residences and other jurisdictional facts of the parties; (2) the specific use
of the plaintiff's name or likeness in the advertising constituting the invasion of privacy; 13 (3) the fact that the use made of
plaintiff's name or likeness for advertising purposes was without his consent; 14 (4) where the right of action is defined and
limited by statute, the facts bringing the action within the statute; 15 (5) the fact that plaintiff was damaged by such use, with
special damages, if any, set out; (6) malice and wilfulness, especially if punitive damages are sought; 16 (7) matters justifying
an injunction or other special relief, if such is sought; and (8) a prayer for relief.
§ 3. General principles
[Cumulative Supplement]
A distinct right of privacy 17 is now recognized, either as a common–law right or by statute, in at least 35 states. 18 In those
states recognizing such a right even in cases where a person's name or picture is used for noncommercial purposes, 19 it would

appear, a fortiori, that a person whose name or likeness is used without his consent to promote the defendant's wares has a right
to recover for invasion of privacy.
While there are some jurisdictions that do not recognize a right of privacy at all, even in regard to the use of a person's name
for commercial purposes, 20 the modern approach in states not recognizing a common–law right of privacy has been to adopt
statutes securing the rights of individuals against commercial exploitation.
Thus, for example, the New York legislature, after a declaration by the highest court of that state that no right of privacy
enforceable at law or in equity existed, even in cases of commercial exploitation, 1 adopted a statute which provides that any
person whose name, portrait, or picture is used for advertising purposes or for the purposes of trade may, without the written
consent of such person, maintain an equitable action against the one using his name to prevent and restrain the use thereof, and
may also sue and recover for damages for any injuries sustained by reason of such use; if the defendant knowingly used such
person's name, the jury may, in its discretion, award exemplary damages. 2
Attention is called, however, to the decision of the United States Supreme Court in Time, Inc. v Hill (1967) 385 US 374,
17 L Ed 2d 456, 87 S Ct 534, holding that the New York statute is precluded by the constitutional protection of free speech
and press from being applied to redress false reports of matters of public interest in the absence of proof that the defendant
published the report with knowledge of its falsity or in reckless disregard of the truth.
CUMULATIVE SUPPLEMENT
Cases:
The right protected in the Massachusetts statute allowing one to prevent others from using one's likeness for advertising purposes
is the interest in not having the commercial value of one's name, portrait, or picture appropriated to the benefit of another.
M.G.L.A. c. 214, § 3A. McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006).
To prove a claim of common law commercial misappropriation of privacy, a plaintiff must establish the defendant's use of
plaintiff's identity, the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise, a lack
of consent and resulting injury. Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002).
Both the right to publicity and the right not to have one's privacy invaded by misappropriation of one's likeness protect an
individual from unauthorized commercial use of their name and likeness (Per Yates, P.J., with four Judges concurring in the
result). Minnifield v. Ashcraft, 903 So. 2d 818 (Ala. Civ. App. 2004).
Elements of California common law right of publicity are: (1) the defendant's use of the plaintiff's identity; (2) the appropriation
of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.
Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) (applying California law).
Under California common law cause of action for commercial misappropriation of plaintiff's name or likeness, plaintiff must
allege: (1) defendant's "knowing" use of plaintiff's identity for purposes of advertising; (2) appropriation of plaintiff's name
or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; (4) a direct connection between use and

commercial purpose; and (5) resulting injury. West's Ann.Cal.Civ.Code § 3344. Cohen v. Facebook, Inc., 798 F. Supp.
2d 1090, 100 U.S.P.Q.2d 1767 (N.D. Cal. 2011) (applying California law).
The elements of invasion of privacy by appropriation of another's name or likeness are as follows: (1) the defendant used the
plaintiff's name or likeness; (2) the use of the plaintiff's name or likeness was for the defendant's own purposes or benefit,
commercially or otherwise; (3) the plaintiff suffered damages; and (4) the defendant caused the damages incurred. Joe Dickerson
& Associates, LLC v. Dittmar, 34 P.3d 995 (Colo. 2001).
Under Florida statute proscribing unauthorized publication of person's name or likeness for trade, commercial, or advertising
purposes, terms "trade," "commercial," and "advertising purpose" mean using a person's name or likeness to directly promote a
product or service. West's F.S.A. § 540.08. Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002) (applying
Florida law).
See Loft v Fuller (1981, Fla App D4) 408 So 2d 619, § 19.
Claim for violation of right to publicity under Georgia law protects against appropriation of another's name and likeness without
his or her consent and for financial gain of the appropriator, whether the person whose name and likeness is used is private
citizen, entertainer, or public figure who is not a public official. Somerson v. McMahon, 956 F. Supp. 2d 1345 (N.D. Ga. 2012)
(applying Georgia law).
The right of publicity, defined as a celebrity's right to the exclusive use of his or her name and likeness, is recognized in Georgia
as a right distinct from the right of privacy; such right to publicity survives the death of its owner, and is inheritable and devisable,
and the owner thereof need not have commercially exploited the right before it can survive his death. Martin Luther King,
Jr., Center for Social Change, Inc. v American Heritage Products, Inc. (1982) 250 Ga 135, 296 SE2d 697, 216 USPQ 711.
Maryland recognizes tort of invasion of privacy by misappropriation of name or likeness, according to which one who
appropriates to his own use or benefit name or likeness of another is subject to liability. Restatement (Second) of Torts § 652C.
Comins v. Discovery Communications, Inc., 200 F. Supp. 2d 512, 62 U.S.P.Q.2d (BNA) 1573 (D. Md. 2002)(applying Maryland
law).
A defendant can be liable for the tort of invasion of privacy by misappropriation of likeness only if defendant's use of plaintiff's
likeness was for a predominantly commercial purpose, meaning the use was mainly for purposes of trade, without a redeeming
public interest, news, or historical value. Battaglieri v. Mackinac Center For Public Policy, 261 Mich. App. 296, 680 N.W.2d
915 (2004).
Under Mississippi law as predicted by Court of Appeals, one who appropriates to his own use or benefit name or likeness of
another is subject to liability to other for invasion of his privacy. Restatement (Second) of Torts § 652C. American Guarantee
and Liability Ins. Co. v. 1906 Co., 273 F.3d 605 (5th Cir. 2001) (applying Mississippi law).
In order to recover for invasion of privacy under Mississippi law, pursuant to misappropriation of identity theory, plaintiffs
must, by definition, show that they were identified by defendants. Gales v. CBS Broadcasting, Inc., 269 F. Supp. 2d 772 (S.D.
Miss. 2003) (applying Mississippi law).
To establish a "misappropriation–of–name tort," the plaintiff must prove that the defendant used the plaintiff's name without
consent to obtain some advantage. Doe v. TCI Cablevision, 110 S.W.3d 363, 67 U.S.P.Q.2d (BNA) 1604 (Mo. 2003).

Action based on principle that an individual has right to control use of his name and image could not be maintained in Nebraska,
whether denominated "right to privacy" or "right to publicity". Carson v National Bank of Commerce Trust & Sav. (CA8
Neb) 501 F2d 1082 (applying Neb law).
Common–law tort of invasion of privacy by appropriation of name or likeness ordinarily involves unwanted and unpermitted
use of name or likeness of ordinary, uncelebrated person for advertising or other purposes; right of publicity tort, on other hand,
involves appropriation of celebrity's name or identity for commercial purposes; appropriation tort seeks to protect individual's
interest in privacy, while publicity tort seeks to protect property interest that celebrity has in his or her name; in action by
celebrated animal trainer who alleged that animal–welfare organization had committed common–law appropriation tort by using
his name and photographs to promote national publicity for organization and to raise money, court erred in entering judgment on
jury verdict in favor of trainer where interest trainer sought to protect was pecuniary in nature, where trainer's claim therefore was
based on right of publicity and not on appropriation tort, where right of publicity had been codified by state, and where trainer
could not recover under statutory tort because he had not sought recovery under statute. People for the Ethical Treatment of
Animals v Bobby Berosini, Ltd. (1994, Nev) 867 P2d 1121, 22 Media L R 1769.
Under New Hampshire law, one who appropriates to his own use or benefit the name or likeness of another is subject to liability
to the other for invasion of his privacy. Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 86 U.S.P.Q.2d 1394, 2008
DNH 58 (D.N.H. 2008) (applying New Hampshire law).
In action by three singers against beer company that used persons who looked and sounded like singers in television beer
commercial after singers had refused to make commercial, court would dismiss beer company's motion to dismiss claim arising
under statute prohibiting use of "name, portrait, or picture" without consent for advertising purposes where statute applied to use
of look–alikes; court would not extend statute to cover sound–alikes in view of specific statutory language. Tin Pan Apple,
Inc. v Miller Brewing Co. (1990, SD NY) 737 F Supp 826, 17 Media L R 2273, 15 USPQ2d 1412 (applying New York law).
In action by film maker against clothing store and advertising agency for unauthorized exploitation of his likeness and reputation
through use of celebrity look–alikes in advertising matter, plaintiffs common law claim against defendants for violation of right
to exploit his likeness was dismissed where state statute has been explicitly construed to preempt any such common law cause
of action. Allen v Men's World Outlet, Inc. (1988, SD NY) 679 F Supp 360, 15 Media L R 1001, 5 USPQ2d 1850 (applying
New York law).
New York does not recognize common law right of action for invasion of privacy arising out of unauthorized use of photograph
in advertisement. Eliah v Ucatan Corp. (1977, DC NY) 433 F Supp 309 (applying New York law).
In New York, the right to privacy is governed exclusively by Civil Rights Law prohibiting use of person's name, portrait
or picture for advertising or trade purposes without prior written consent; New York has no common law of privacy.
N.Y.McKinney's Civil Rights Law §§ 50, 51. Chimarev v. TD Waterhouse Investor Services, Inc., 280 F. Supp. 2d 208
(S.D. N.Y. 2003) (applying New York law).
Name, portrait or picture is used for advertising purposes, within meaning of provision in Civil Rights Law governing right
to privacy, if it appears in publication which, taken in its entirety, was distributed for use in, or as part of, advertisement or

solicitation for patronage of particular product or service. McKinney's Civil Rights Law §§ 50, 51. Guerrero v. Carva,
779 N.Y.S.2d 12 (App. Div. 1st Dep't 2004).
Rights under the statute setting forth the right of privacy, and the statute providing for a cause of action to vindicate such right, are
strictly limited to nonconsensual commercial appropriations of the name, portrait, or picture of a living person. McKinney's
Civil Rights Law §§ 50, 51. Colon v. City of Rochester, 762 N.Y.S.2d 749 (App. Div. 4th Dep't 2003).
In order to establish a claim under New York Civil Rights Law governing the right of privacy, plaintiff must demonstrate that
defendant used plaintiff's name, portrait, picture, or voice in the State of New York for purposes of advertising or trade, without
plaintiff's written permission. McKinney's Civil Rights Law §§ 50, 51. Leviston v. Jackson, 980 N.Y.S.2d 716 (Sup 2013).
In order to state cause of action for invasion of privacy by misappropriation, under Ohio law, complaint must allege that
plaintiff's name or likeness has some intrinsic value, which was taken by defendant for its own benefit, commercial or otherwise.
Restatement (Second) of Torts § 652C. Seifer v. PHE, Inc., 196 F. Supp. 2d 622 (S.D. Ohio 2002) (applying Ohio law).
Under Oregon law, plaintiffs can recover damages when their names, pictures or other likenesses have been used without their
consent to advertise a defendant's product, to accompany an article sold, to add luster to the name of a corporation or for some
other business purpose; however, there is no actionable claim for appropriation of a person's likeness when a person's picture
is used to illustrate a noncommercial, newsworthy article. Restatement (Second) of Torts § 652C. Raymen v. United Senior
Ass'n, Inc., 409 F. Supp. 2d 15 (D.D.C. 2006) (applying Oregon law).
Under Pennsylvania law, incidental use such as mere mention of the plaintiff's name or publication of the plaintiff's likeness
without the purpose of taking advantage of its value, is not misappropriation; however, when the publicity is given for the
purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness, the
right of privacy is invaded. Restatement (Second) of Torts § 652C comment. AFL Philadelphia LLC v. Krause, 639 F.
Supp. 2d 512 (E.D. Pa. 2009) (applying Pennsylvania law).
Pennsylvania recognizes common law "right of publicity," which grants person exclusive right to control commercial value of
his or her name and likeness and to prevent others from exploiting that value without permission. Restatement (Third) of Unfair
Competition § 46. World Wrestling Federation Entertainment Inc. v. Big Dog Holdings, Inc., 280 F. Supp. 2d 413 (W.D.
Pa. 2003)(applying Pennsylvania law).
No publicity rights exist under Puerto Rico law, as would support a tort claim for the misappropriation of a private person's
name or likeness for commercial use. Mercado-Salinas v. Bart Enterprises Intern., Ltd., 747 F. Supp. 2d 275 (D.P.R. 2010)
(applying Puerto Rico law).
In action by prominent former professional football player who alleged that real–estate brokerage used his name for commercial
or trade purposes without his consent in violation of statute when it sent out flyer advertising brokers' open house to be held on
premises of house in which he used to live and which was being sold by his ex–wife, court did not err in entering judgment on
verdict in favor of player, where flyer featured player's name in print larger than other text, and it contained photograph of house
along with brokerage logo and agent's name and address, where 1,610 copies of flyer were distributed to real–estate offices,
where under these circumstances, flyer clearly was advertising material and promotional publication, where player's name was
used "for advertising purposes" within meaning of statute inasmuch as agent had specifically directed printer of flyer to make

player's name larger than other words so it would "stand out," where player's name therefore was integral part of flyer and
could not be deemed merely incidental to flyer's clear commercial message, where there was no merit to brokerage's argument
that it was engaging in commercial speech that could not be restricted and that application of statute violated its right to free
speech, where player's name was used strictly in promotional sense to generate interest in sale of real estate and its use was not
relevant to dissemination of information to consumers about physical condition, architectural features, or quality of house, and
where use of player's name was not type of commercial speech accorded constitutional protection. Town & Country Properties
v Riggins (1995, Va) 457 SE2d 356, 23 Media L R 2045.
Under Wisconsin law as predicted by the district court, an incidental use exception applies to Wisconsin's statutory cause of
action for misappropriation of a living person's name or picture for advertising purposes or for purposes of trade, and there
must be a substantial rather than an incidental connection between the use and the defendant's commercial purpose. W.S.A.
995.50(2)(b). Bogie v. Rosenberg, 705 F.3d 603 (7th Cir. 2013) (applying Wisconsin law).
See Hirsch v S. C. Johnson & Son, Inc. (1979) 90 Wis 2d 379, 280 NW2d 129, § 14.
[Top of Section]
[END OF SUPPLEMENT]
§ 4[a] What constitutes use of name or likeness for advertising or trade purposes—Held to be for advertising or trade
purposes
Under the New York and similar statutes 3 the courts, in order to find an actionable invasion of privacy, must first determine
that the publication which plaintiff finds objectionable constitutes a use of his name for "advertising purposes" or for "purposes
of trade" within the meaning of the statute. 4
Since there can be no invasion of privacy in these jurisdictions unless this test is met, the courts have tended to be liberal in
their interpretation of what constitutes "advertising purposes" or "purposes of trade." Under the circumstances present in the
following cases, the publication was found to be for such purposes.
See Branson v Fawcett Publications, Inc. (1954, DC Ill) 124 F Supp 429, wherein it was said, by way of dictum, that the
publication of a picture, originally newsworthy, in a fiction magazine such as "True Confessions" might be classified as a use
for trade purposes which would make it actionable in some jurisdictions.
The production and distribution of a motion picture portraying the life of a deceased entertainer, but based largely on fictitious
incidents, were held in Donahue v Warner Bros. Pictures, Inc. (1952, CA10 Utah) 194 F2d 6, to be in violation of the Utah
statute forbidding the use, for advertising purposes or purposes of trade, of the name, portrait, or picture of a deceased person
without the written consent of his heirs or personal representatives, the court holding that a picture within the meaning of the
statute includes any representation of the person, including such representation by an actor portraying the deceased. 5
In Neyland v Home Pattern Co. (1933, CA2d NY) 65 F2d 363, cert den 290 US 661, 78 L Ed 572, 54 S Ct 76, an artist was held
to be entitled to recover, under the New York statute, for the use of his name in connection with a reproduction of one of his

paintings in a magazine offering for sale patterns based upon reproductions of such painting, the court stating: "We shall assume
without deciding that merely to publish a reproduction of the painting, coupled with Neyland's name, would not violate the
right conferred by [the New York statute] though it might be an infringement of his artistic property. However, to sell patterns
of his painting was plainly 'trade,' and if his name was used to further such sales, that use was either 'advertising' or an incident
to 'trade' in the patterns."
The making and public exhibition for profit of a motion–picture story of a shipwreck, based upon an actual occurrence but
reconstructed in the studio of the defendant by means of prepared scenery and professional actors, featuring the acts of the
plaintiff, who was the wireless operator on one of the ships, and whose messages resulted in saving the lives of the passengers
on the ship, was held in Binns v Vitagraph Co. of America (1913) 210 NY 51, 103 NE 1108, LRA 1915C 839, affg 147 App
Div 783, 132 NYS 237, to constitute the use of the plaintiff's name and picture for advertising or trade purposes, so as to entitle
him to damages under the New York privacy statute, where his true name was used in the picture six times or more, and his
purported picture, posed by a professional actor, appeared five times, the court pointing out that one of the pictures of the actor
representing the plaintiff had no connection with any other person or place involved in the incident in question.
It was said in Spahn v Julian Messner, Inc. (1967) 21 NY2d 124, 286 NYS2d 832, 233 NE2d 840, that before recovery may
be had by a public figure for an unauthorized presentation of his life, it must be shown that the presentation is infected with
material and substantial falsification and that the work was published with knowledge of such falsification or with a reckless
disregard for the truth. The court went on to hold that where a fictionalized biography of a well–known baseball player involved
invented dialogue and imaginary incidents, and attributed thoughts and feelings to him, the New York statute was violated,
stating that such publication could not be justified on the ground that the literary techniques used were customary for children's
books, nor could the fact that the complaint did not allege falsity or reckless disregard for the truth warrant reversal of the order
enjoining publication and awarding damages.
The use by a railway company of the plaintiff's picture for the purpose of teaching passengers a safe way to enter and leave a
car was held in Almind v Sea Beach R. Co. (1913) 157 App Div 230, 141 NYS 842, to be a use for "advertising purposes,"
entitling the plaintiff to an injunction against such use, under the New York statute, although it did not amount to a use for
"trade purposes." The court said: "It would make the statute useful, but greatly limit it, to confine the advertising to matters of
vocation, or even avocation, where there would be pecuniary return, or expectation of it. If an advertisement were essentially
for unselfish purposes, the portrait of a person not giving the statutory consent could not be displayed. The right of privacy
under the statute cannot be invaded for purposes purely informative or redemptive, whether the altruist be entirely a charitable
envoy or a railway company. No cause is so exalted that it may allure by exposing the portrait of a person to the public gaze."
The exhibition in theaters open to the public of a motion picture showing the performance of a cesarean section upon the plaintiff,
as part of a picture called "Birth," was said in Feeney v Young (1920) 191 App Div 501, 181 NYS 481, to be clearly for the
purposes of trade within the meaning of the New York statute, entitling the plaintiff to recover damages.
A photographer who, having been employed to make pictures of guests at a social function in the plaintiff's home, wrongfully
sold the picture to a newspaper, which published the same, was held to be liable in damages to the plaintiff under the New York
privacy statute, in Holmes v Underwood & Underwood (1929) 225 App Div 360, 233 NYS 153. In answer to the defendant's
contention that its use of the picture was not for advertising purposes or for purposes of trade, within the meaning of the statute,
the court said: "It is not the publishing of plaintiff's photograph that is at this stage so much material. Rather, it is the sale of
such photograph by defendant. That was in furtherance of defendant's trade. It has commercialized the photograph, the rights
to which are in the plaintiff. The newspaper is not here sought to be held liable."

In Blumenthal v Picture Classics (1932) 235 App Div 570, 257 NYS 800, affd without op 261 NY 504, 185 NE 713, the
producers and distributors of a motion picture entitled "Sight Seeing in New York with Nick and Tony" were held to be liable
under the New York statute to a woman who was shown in the motion picture in the act of selling bread and rolls to passersby
on a street, the court taking the view that such use of plaintiff's picture was for advertising purposes or for purposes of trade.
The use of a photograph in a camera manual showing plaintiff, an actress, focusing a Minox camera accompanied by text to the
effect that while on location, shooting a motion picture, the actress (plaintiff) and the film's promotion director took over 100
such pictures, was held to be a use of plaintiff's name and picture for advertising purposes, in Selsman v Universal Photo Books,
Inc. (1963) 18 App Div 2d 151, 238 NYS2d 686. The court rejected defendants' contention that since the pictures appeared
in a manual which sold at $5 per copy, it was unlikely that the manual would be purchased by anyone unless he owned such
a camera, so that the manual was not an advertising medium. The court noted that such an argument ignored the value of the
publication in the sale of accessories and additional cameras, and held that the use was for advertising purposes.
See Hill v Hayes (1963) 18 App Div 2d 485, 240 NYS2d 286, later app 15 NY2d 986, 260 NYS2d 7, 207 NE2d 604,
remittitur amd 16 NY2d 658, 261 NYS2d 289, 209 NE2d 282, remittitur amd further 20 NY2d 738, 283 NYS2d 101, 229 NE2d
698 (set aside in Time v Hill, 385 US 374, 17 L. Ed. 2d 456, 87 S Ct 534), where it was held that the defendant, who had
published an article in its magazine under the heading "True Crime Inspires Tense Play" stating that a play to be presented on
Broadway was based on true events involving plaintiff, infringed plaintiff's right of privacy because the purpose of the article
was to advertise the play and increase magazine circulation. The United States Supreme Court, in remanding for a new trial, held
that the New York statute is precluded by the constitutional protection of free speech and press from being applied to redress
false reports of matters of public interest in the absence of proof that the defendant published the report with the knowledge
of its falsity or in reckless disregard of the truth.
In an action based upon a claim that plaintiff was damaged in appearing as a contestant on defendants' television program
because, without his knowledge, the program was "rigged," an allegation that defendants used plaintiff's name and picture for
advertising and trade purposes without having first obtained his consent was held in Holt v Columbia Broadcasting System,
Inc. (1964) 22 App Div 2d 791, 253 NYS2d 1020, to state a cause of action for invasion of his right of privacy under the New
York statute.
The reproduction in a humorous cartoon of a photograph of the plaintiff, and the sale, for personal profit and gain, of the cartoons
to others for publication in other newspapers, were held in McNulty v Press Pub. Co. (1930) 136 Misc 833, 241 NYS 29, to
constitute a use of the plaintiff's picture for the purposes of trade, entitling him to damages under the New York statute. The
court said: "While the statute does not prohibit a newspaper from using or publishing in a single issue the name and picture of
a person without his consent having first been obtained,.… the charge is not confined to such use, but includes also the sale
by the defendant to others, for profit, of cartoons containing plaintiff's picture. This is a use 'for the purposes of trade,' and
prohibited by statute."
Justice Shientag in his frequently cited opinion in Lahiri v Daily Mirror, Inc. (1937) 162 Misc 776, 295 NYS 382, stated that
recovery may be had under the New York statute if a photograph is published in or as part of an advertisement, or for advertising
purposes, and that the statute is also violated if the photograph is used in connection with an article of fiction in any part of the
newspaper. While the use of a name or picture in connection with an educational or informative article was held not to be in
violation of the statute, the court said that if the photograph used has so tenuous a connection with the news items or educational
article that it can be said to have no legitimate relation to it, that is, it can be said to have been used for the purpose of promoting
the sale of the publication, liability may arise.

A complaint alleging that the plaintiff was a professional boxer who had achieved some prominence and an outstanding
reputation in his profession, and that the defendant published in his magazine a fiction story of some 20 pages, in which the
name of the plaintiff, "Solly Krieger," was a character of prominence in the story and his name was used upward of 100 times,
that such use of the plaintiff's name was for purposes of trade and for advertising purposes, and that the defendant had exploited
the plaintiff's name, personality, and reputation, was held in Krieger v Popular Publications (1938) 167 Misc 5, 3 NYS2d
480, to state a good cause of action for damages under the New York statute.
The court in Griffin v Medical Soc. of New York (1939) 7 Misc 2d 549, 11 NYS2d 109, refused to dismiss a complaint
alleging that defendants published a magazine in which they printed an article, under the byline of defendant physicians, bearing
the title "Saddle Nose" and containing pictures of plaintiff, taken without his permission. The court rejected the defendants'
contention that it appeared from the complaint that the pictures of plaintiff were not part of an advertisement, and therefore
not used for advertising purposes. The court noted that an article, even in a scientific publication, may be nothing more than
someone's advertisement in disguise and held that there was a fair inference to be drawn from the complaint that the article
in dispute was published by the defendants to advertise the defendant physicians and their handiwork. The court recognized,
however, that while the complaint was sufficient on its face, it might appear at the trial that the photographs were used solely
for illustrative or scientific purposes.
The sale in five–and–ten–cent stores of lockets containing the photograph of plaintiff, an actress, was held to constitute a
violation of the New York statute, in Lane v F. W. Woolworth Co. (1939) 171 Misc 66, 11 NYS2d 199, affd 256 App Div
1065, 12 NYS2d 352, where the purpose of the photograph in the locket was obviously to bring attention to the lockets and
thus to advertise them.
The publication of plaintiff's picture in a program booklet sold at a bicycle race, the picture having originally appeared in a
London newspaper 50 years earlier, was held in Miller v Madison Square Garden Corp. (1941) 176 Misc 714, 28 NYS2d 811,
not to be privileged on the ground that it appeared in a magazine devoted to the dissemination of items having news value to the
sports–loving public. The court noted that there was an obvious difference between a daily newspaper and an official program
of a sporting event, and that such a program could not be considered to be of the same nature as a periodical, since it was sold
only in the arena where the sporting event was being held, and not to the general public.
Similarly, it was held in Goldberg v Columbia Broadcasting System, Inc. (1960) 25 Misc 2d 129, 205 NYS2d 611, that although
the plaintiff had knowingly appeared on a television program, it could not be assumed that he authorized the use of his name
and picture in a fraudulent manner on a quiz program which was "rigged."
A complaint for invasion of privacy under the New York statute was held sufficient in Pittera v Parade Publications, Inc. (1961)
29 Misc 2d 90, 216 NYS2d 162, motion to dismiss app den 13 App Div 2d 729, 218 NYS2d 495, to present a jury question as
to whether a photograph of the plaintiff when used in conjunction with an article entitled "How Much is a Wife Worth?" was for
advertising or trade purposes. The court noted that it did not appear from the complaint that the magazine in which the article
appeared contained any advertising or that anything contained in the complaint precluded the fair inference that articles of the
kind here involved were the subject of defendants' trade and were the primary article of sale to obtain circulation.
In Coleman v Ted's Auto Sales, Inc. (1962) 34 Misc 2d 100, 227 NYS2d 693, affd 17 App Div 2d 827, 233 NYS 2d 239,
motion to dismiss app den 12 NY2d 833, 236 NYS2d 609, 187 NE2d 464, plaintiff, an attorney with a widespread reputation
in the automotive field, alleged that defendant, an automobile dealer, informed a credit–rating corporation that plaintiff was its
treasurer and a director when in fact he had no such connection with the defendant corporation. Stating that the complaint in
effect alleged that defendants used plaintiff's name to obtain credit, which was for the "purpose of trade," and that the circulation
of the credit–rating report, on the strength of the information imparted to it by defendants, was an advertisement because, based

upon that circulation to those interested in the trade, the defendants sought credit, the court found that a cause of action under
the New York statute had been stated.
Allegations that defendant publisher published a book containing an introduction and note which were intended to increase the
sale of the book by making it appear to be a work of recognized literary merit by including in the introduction and note language
implying that plaintiff, a literary critic, regarded the book as a work having literary merit, whereas his true opinion was that
it was tedious and bewilderingly pornographic, were held in Thompson v G. P. Putnam's Sons (1963) 40 Misc 2d 608, 243
NYS2d 652, prima facie sufficient as against a motion to dismiss. Referring to defendant's contention that since the introduction
and note could be read only if the book itself was opened, their contents could not possibly have been intended for trade or
advertising purposes, the court pointed out that persons browsing through books at a bookstore or in a library and glancing at
the note might be induced by the favorable references to purchase the book.
A complaint alleging that the defendant labor union was engaged in competition with another union in a membership drive, and
that in connection therewith it caused handbills or posters containing plaintiff's photograph to be publicly disseminated, and
that such display constituted advertising, was held to state a cause of action under the New York statute, in Rubino v Slaughter
(1954, Sup) 136 NYS2d 873.
In a few cases, discussed more fully in § 19 infra, it has been held that the use of plaintiff's name or likeness in a newspaper
or periodical article was in violation of the New York statute, since the primary purpose of the publication was to increase the
circulation of the defendant's publication. Thompson v Close-Up, Inc. (1950) 277 App Div 848, 98 NYS2d 300, affg 197
Misc 921, 99 NYS2d 864; Semler v Ultem Publications (1938) 170 Misc 551, 9 NYS2d 319.
But see Oma v Hillman Periodicals, Inc. (1953) 281 App Div 240, 118 NYS 2d 720, infra § 19.
To the same effect is Hazlitt v Fawcett Publications, Inc. (1953, DC Conn) 116 F Supp 538 (applying Oklahoma law), infra
§ 19. 6
Cases:
See Grant v Esquire, Inc. (DC NY) 367 F Supp 876, § 21[b].
Use of photograph of famous motion–picture star was clearly use for advertising purposes, where photograph occupied two–
thirds of a two–page spread in magazine advertisement, photograph depicted movie star as actually recommending product
advertised, and first name of movie star was identical with first 4 letters of name of advertised product. Negri v Schering Corp.
(DC NY) 333 F Supp 101.
In contrast to the other forms of invasion of privacy, in a claim of invasion of privacy by appropriation of another's name and
likeness there need be no allegation that a statement about a plaintiff was an intrusion upon seclusion or private matters or
that it was in any way false; instead, any unauthorized use of a plaintiff's name or likeness, however inoffensive in itself, is
actionable if that use results in a benefit to another. Battaglieri v. Mackinac Center For Public Policy, 261 Mich. App. 296,
680 N.W.2d 915 (2004).

See Tellado v Time-Life Books, Inc. (1986, DC NJ) 643 F Supp 904, 13 Media L R 1401 (applying NJ law), § 22.
See Faber v Condecor, Inc. (1984) 195 NJ Super 81, 477 A2d 1289, certif den 99 NJ 178, 491 A2d 684, § 21[a].
In action for misappropriation of name for advertising or trade purposes, brought by back–up musician against celebrity
performer, complaint stated cause of action and would not be dismissed where it alleged that plaintiff donated his services
in 1972 for two benefit concerts for retarded children upon representation that concerts and telecast would not be exploited
commercially, that plaintiff actually played electric piano throughout concerts at which defendant feigned playing and that
plaintiff would never have gone along with "palming off" of his piano playing for defendants' own had he known the defendant
intended to commercially exploit performances at later date; that in 1985, however, defendant delivered film and soundtrack of
performances for commercial reproduction as record album and videotape, that press release and jackets of album and videotape
make reference to plaintiff by name as one of performers, and that plaintiff at no time gave written authorization for use of
his name; moreover, contrary to defendant's contentions, it was not clear that plaintiff had sold or disposed of his rights or
that a press release using his name was purely within "newsworthiness" exception. Ippolito v Ono-Lennon (1988) 139 Misc
2d 230, 526 NYS2d 877.
In action by promoters of professional wrestlers who alleged that magazine violated statute providing remedies for
nonconsensual use of person's name or picture "for advertising purposes or for purpose of trade" when it stapled folded–up
posters of wrestlers into magazines and promoted posters on cover of magazines, court abused discretion in granting magazine's
motion for summary judgment where there was material issue of fact as to whether magazine's publications were uses for
purposes of trade; in determining whether posters were for purpose of trade and not entitled to First Amendment protection,
trial court would have to consider whether posters were included in magazines primarily for their "public interest aspect" or
whether whatever public interest aspect might be involved was merely incidental to commercial purpose. Titan Sports, Inc.
v Comics World Corp. (1989, CA2 NY) 870 F2d 85, 16 Media L R 1408, 10 USPQ2d 1311 (applying New York law).
See Lerman v Chuckleberry Pub., Inc. (1982, SD NY) 544 F Supp 966, 35 FR Serv 2d 1278 (applying New York law), § 19.
See Beverley v Choices Women's Medical Center, Inc. (1991) 78 NY2d 745, 579 NYS2d 637, 587 NE2d 275, 19 Media
L R 1724, 21 USPQ2d 1313, § 21[b].
Name, portrait or picture is used "for advertising purposes," within the meaning of the Civil Rights Law, if it appears in a
publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage
of a particular product or service. McKinney's Civil Rights Law § 51. Morse v. Studin, 725 N.Y.S.2d 93 (App. Div. 2d
Dep't 2001).
See Beverley v Choices Women's Medical Center, Inc. (1988, 2d Dept) 141 App Div 2d 89, 532 NYS2d 400, 16 Media L R
1159, app dismd without op 73 NY2d 785, 536 NYS2d 743, 533 NE2d 673, later proceeding (NY Sup) 16 Media L R 1668, § 13.
See Rinaldi v Village Voice, Inc., 47 App Div 2d 180, 365 NYS2d 199, cert den (US) 46 L Ed 2d 112, 96 S Ct 153, § 19.
In action for invasion of privacy by misappropriation of likeness for purposes of advertising or trade against magazine publisher,
brought by individual who claimed to be unidentified sailor kissing nurse in New York City's Times Square moments after
announcement of Japanese surrender, defendant's motion to dismiss action for failure to state claim was denied where, although

original publication of photograph in 1945 clearly had significance as news and could not be deemed used for "purposes of trade"
within meaning of state statute, defendant had used picture in various publications subsequently without plaintiff's consent and
in 1987 ran advertisement in which it offered to sell copies of limited edition of "kissing sailor" photograph for $1,600 each so
that plaintiff had satisfactorily alleged commercial exploitation within meaning of state statute. Mendonsa v Time, Inc. (1988,
DC RI) 678 F Supp 967, 15 Media L R 1017, 6 USPQ2d 1140 (applying RI law).
Wrongful appropriation of personality involves intentional, unconsented use of plaintiff's name, likeness, or identity by
defendant for his own benefit; gist of action is violation of plaintiff's exclusive right at common law to publicize and profit
from his name, likeness, and other aspects of personal identity. Sloan v. South Carolina Dept. of Public Safety, 355 S.C. 321,
586 S.E.2d 108 (2003).
See Apple Corps v A.D.P.R., Inc. (1993, MD Tenn) 843 F Supp 342, 22 Media L R 1562, 30 USPQ2d 1372 (applying Tenn
law), § 20[a].
See Town & Country Properties v Riggins (1995, Va) 457 SE2d 356, 23 Media L R 2045, § 3.
[Top of Section]
[END OF SUPPLEMENT]
§ 4[b] What constitutes use of name or likeness for advertising or trade purposes—Held not to be for advertising or
trade purposes
In the following cases, the use of plaintiff's name or picture was found not to be for advertising purposes or for purposes of trade,
frequently on the ground that the plaintiff's name or likeness was published in the public interest, as where he was involved
in some newsworthy event.
A magazine article discussing the turbulent political affairs of Haiti was held in Fignole v Curtis Publishing Co. (1965, DC
NY) 247 F Supp 595, not to be for advertising purposes or purposes of trade within the New York statute, so that a reference
to plaintiff as a demagogue did not give rise to a cause of action for invasion of privacy.
Applying Louisiana Law, the court in Mahaffey v Official Detective Stories, Inc. (1962, DC La) 210 F Supp 251, held that the
parents of a boy who was murdered were not entitled to recover from the publisher of a magazine containing an article relative
to the murder, on the theory of invasion of privacy, since the article was published for reader interest and not to promote or
publicize any particular product or service.
Where a program which used fictitious names in dramatizing plaintiff's conviction in 1935 and his pardon in 1945 was telecast
in 1952, it was held in Bernstein v National Broadcasting Co. (1955, DC Dist Col) 129 F Supp 817, affd 98 App DC 112, 232
F2d 369, cert den 352 US 945, 1 L Ed 2d 239, 77 S Ct 267, that since a story of public interest was involved, there was no
violation of the Virginia statute giving a cause of action against one knowingly using for advertising purposes, or for purposes
of trade, the name, portrait, or picture of any person without his consent, the court rejecting plaintiff's contention that the prime
purpose of the telecast was to sell the sponsor's product.

In Klein v McGraw-Hill, Inc. (1966, DC Dist Col) 263 F Supp 919, the defendant publisher issued a textbook entitled
"Understanding Radio" and as a frontispiece therefor used a photograph of plaintiff who, as a high school student, had made
an important advance in radio communication which resulted in considerable publicity. The codefendant, a news photographic
service, had taken the photograph, without any objection on plaintiff's part, at the time plaintiff's work received public notice,
and the textbook contained an explanation of plaintiff's work. Assuming, without deciding, that the case was governed by
the substantive law of New York, the court stated that the photograph in this instance was obviously not used for advertising
purposes, and that it was a farfetched contention to say that it was used for purposes of trade merely because it was employed
to illustrate a book dealing with the subject to which the plaintiff had made an important contribution.
Where plaintiff was shown standing next to a "land yacht" in a picture which was published without his consent in a magazine,
accompanied by text material relating to the vehicle, it was held in Buzinski v DoAll Co. (1961) 31 Ill App 2d 191, 175
NE2d 577, that plaintiff's likeness had not been commercially exploited, since the picture was published as a matter of public
interest. Recovery for invasion of privacy was denied although it appeared that the picture had first been submitted as part of
an advertising piece.
The publication of a false and sensational story purporting to have been written by plaintiff was held in D'Altomonte v New
York Herald Co. (1913) 208 NY 596, 102 NE 1101, not to be a use of plaintiff's name for purposes of advertising or trade within
the New York statute, although it did constitute libel.
The televising of plaintiff's animal act without his authorization between the halves of a commercially sponsored televised
football game was held in Gautier v Pro-Football, Inc. (1952) 304 NY 354, 107 NE2d 485, not to be an invasion of privacy
within the New York statute where neither plaintiff's name nor his picture were connected with the commercial announcements.
The court held that although the telecast was paid for by a sponsor, the entire program was not thereby constituted a solicitation
for patronage, the mere fact of sponsorship not sufficing to violate the statute. Referring to the fact that at the end of the first
half of the game, and immediately before plaintiff's act, a oneminute commercial announcement was shown, that there were
other acts following plaintiff's, and that thereafter and just before the start of the second half of the game there was another
commercial announcement, the court said that it was nothing more than coincidence that one of such announcements occurred
immediately prior to plaintiff's act, and held that this did not constitute either a visual or an oral connection between plaintiff's
act and the commercial announcement so as to make the use of plaintiff's name and picture a use for advertising purposes.
The unauthorized publication in the "National Police Gazette," a weekly publication largely devoted to pictures of pugilists,
wrestlers, athletes, vaudeville performers, and prize dogs, together with considerable reading matter that "scarcely appealed
to a refined mind," and a great number of advertisements, of a picture of the plaintiff, a professional entertainer and "high
diver," shown in costume appropriate for public performances, followed by the caption, "May Collier, a great trick diver," on
the same page with four other pictures of female vaudeville performers, attired in stage costume, together with the words, "five
of a kind on this page. Most of them adorn the burlesque stage; all of them are favorites of the baldheaded boys," was held in
Colyer v Richard K. Fox Pub. Co. (1914) 162 App Div 297, 146 NYS 999, not to constitute a use of the plaintiff's name or
picture for advertising purposes or for purposes of trade, so as to entitle her to recover damages under the New York statute.
The court overruled the contention that the paper in question was a mere advertising sheet sold as a matter of trade, stating that
the statute had not yet been so far extended as to prohibit, under penalty of exemplary damages, a publication in a daily, weekly,
or periodical paper or magazine of the portrait of an individual.
The production of a motion picture entitled "The Inside of the White Slave Traffic," which showed a factory building upon
which there was a sign bearing the name and business of the plaintiff, was held in Merle v Sociological Research Film Corp.
(1915) 166 App Div 376, 152 NYS 829, not to constitute a use of the plaintiff's name for advertising or trade purposes, within
the meaning of the New York statute.

The production and exhibition of newsreels, consisting of motion pictures of several news events of current public interest,
containing the picture and name of the plaintiff, as incidental to a pictorial account of the solution of a murder mystery of great
current interest, which was prominently featured by the public press at the time, in the solution of which the plaintiff was largely
instrumental, such pictures being actual photographs showing the plaintiff seated in an automobile with a police officer while
actually engaged in work on the mystery, were held in Humiston v Universal Film Mfg. Co. (1919) 189 App Div 467, 178 NYS
752, not to constitute the use of the plaintiff's name or picture "for advertising purposes or for the purposes of trade," within
the meaning of the New York privacy statute. The court said: "It cannot be contended that the publication of moving pictures is
not a trade. But we think it is not such a trade as was within the contemplation of the legislature in the passage of the act. They
are published for profit, as a newspaper is published for profit. Their profit depends upon their ability to present accurate and
interesting news, as well as the photoplays of fiction. It is precisely the same with a newspaper..… The exhibition of a motion
picture of a public parade would, under the trial court's interpretation [holding the defendant liable], subject the defendant to
prosecution for crime. The exhibition of a motion picture showing a game of baseball or a game of football would, under the
trial court's interpretation of the statute, be a crime, unless with the written consent of every person either among the players or
among the spectators shown upon the film whose likeness was distinguishable."
The re–creation of a news story by means of pictures in a comic book was held in Molony v Boy Comics Publishers, Inc. (1950)
277 App Div 166, 98 NYS2d 119, not to be for the "purpose of trade" within the New York statute.
A picture illustrating an article on a matter of public interest is not considered used for purposes of trade or advertising within
the New York statute unless it has no real relationship to the article, or unless the article is an advertisement in disguise, and
it makes no difference whether the article appears in a newspaper, magazine, newsreel, on television, in a motion picture, or
in a book. Thus, the display of a picture on the cover of a book showing a priest, the subject of the book, in conversation with
a longshoreman, without the latter's consent, was held in Dallesandro v Henry Holt & Co. (1957) 4 App Div 2d 470, 166
NYS2d 805, app dismd 7 NY2d 735, 193 NYS2d 635, 162 NE2d 726, not actionable.
The court in Siegel v Esquire, Inc. (1957) 4 App Div 2d 477, 167 NYS2d 246, held that a picture of plaintiff used to illustrate an
article entitled "The Miracle of Face Planing," which the court found to be a newsworthy article on a new medical development,
did not constitute an advertisement in disguise so as to entitle plaintiff to recover under the New York statute.
The court in Goelet v Confidential, Inc. (1958) 5 App Div 2d 266, 171 NYS2d 223, said that although newspapers and magazines
are published for profit, the use of a name or picture in such a publication does not ipso facto fall within the "purposes of trade"
provision of the New York statute; and that an actionable invasion of privacy occurs only if there has been a use for a purpose
of trade or advertising by a commercialization of the personality through a form of treatment distinct from the dissemination
of news or information.
The publication of a magazine article discussing in general terms the relationship between muscular development and virility
and illustrated by a photograph of plaintiff, a physical training instructor, as a candidate for the title "Mr. Universe—1956,"
was held in Delinger v American News Co. (1958) 6 App Div 2d 1027, 178 NYS2d 231, not to be an actionable use for trade
or advertising under the New York statute.
A complaint failing to allege that an unauthorized use of a photograph and article was for trade or advertising purposes was
held in Pittera v Parade Publications, Inc. (1962) 15 App Div 2d 882, 225 NYS2d 478, not to state a cause of action under
the New York statute.

Where a trade newspaper for the boys' and men's wear and the textile industries published an article which included a dozen
or more photographs taken at a racetrack of boys and men each garbed in a sports jacket of a particular material, the article
stating that the material of the jackets was a "runaway fashion" at the races and associated events, it was held in La Forge v
Fairchild Publications, Inc. (1965) 23 App Div 2d 636, 257 NYS2d 127, an action by one whose likeness appeared in one of
these pictures without his consent, that the publication was not for advertising purposes or for the purposes of trade within
the New York statute, but rather that it was a picture illustrating an article of legitimate public interest to subscribers of the
defendant publication.
A famous pugilist was held not to be entitled to an injunction under the New York statute to restrain a newspaper publisher
from using his name or picture in connection with a biography or life history of the plaintiff, in Jeffries v New York Evening
Journal Pub. Co. (1910) 67 Misc 570, 124 NYS 780, the court stating that a picture is not used for advertising purposes within
the meaning of the statute unless the picture is part of an advertisement, and that "trade" refers to "commerce or traffic," and
not to the dissemination of information.
In People ex rel. Stern v Robert R. McBride & Co. (1936) 159 Misc 5, 288 NYS 501, a prosecution under the penal provisions
of the New York privacy statute, it was held that the publication in the text of a history of strikebreaking, containing in all
314 pages, of the name of the plaintiff on four separate pages, and his picture together with portraits of eight other men on the
frontispiece of the book, without any special prominence given, typographically or otherwise, to the plaintiff's name, did not
constitute a use for advertising or trade purposes within the meaning of the statute, the court stating that "these provisions have
no application to the use of such name or picture as a part of or in connection with the text itself, or (in the case of a picture)
to illustrate the text (as contradistinguished from mere advertising matter or trade use by word or picture) in a newspaper or
magazine article or in a book."
The use of a girl's name and picture in a newspaper column known as "The Inquiring Photographer" was held in Middleton v
News Syndicate Co. (1937) 162 Misc 516, 295 NYS 120, not to constitute a use for purposes of advertising or trade.
The publication, in an allegedly lurid magazine devoted to sensationalizing sexual abnormalities, of a picture in which the 18–
year–old female plaintiff was posed in such a way as to falsely suggest that she was in a nightclub with a male companion
smoking, and drinking intoxicants, and the use of such picture as background for a picture of a female impersonator, was held
in Callas v Whisper, Inc. (1950) 198 Misc 829, 101 NYS2d 532, affd without op 278 App Div 974, 105 NYS2d 1001, affd
303 NY 759, 103 NE2d 543, not to be an invasion of privacy under the New York statute on the ground that such publication
was not for advertising or for trade purposes.
A complaint alleging that the plaintiff's right of privacy was violated by the defendants' unauthorized use of plaintiff's name
in a deceit action brought against him by his wife, for the purpose of extorting money from plaintiff to induce the defendants
to withdraw the deceit action, was held in Cardy v Maxwell (1957) 9 Misc 2d 329, 169 NYS2d 547, not to allege a use for
advertising purposes or for purposes of trade within the New York statute, which was designed to prevent only commercial
exploitation of a person's name, portrait, or picture. The court noted that if the legislature had intended to prohibit unauthorized
use of a person's name or picture for the purposes of all gain, it could easily have so provided. The allegations, however, were
held to state a cause of action for abuse of process.
The mere use of a name in a film shown on television does not ipso facto constitute the use one for advertising purposes. Thus,
it was held in Fleischer v W.P.I.X., Inc. (1961) 30 Misc 2d 17, 213 NYS2d 632, that where an announcer on a commercially
sponsored television program commented on the product of the sponsors before the film using plaintiff's name was shown,
and at times the film was interrupted for commercial announcements, such sequence of events did not constitute the use of

the name one for advertising purposes, since to constitute such use there must be exploitation of the name in the commercial
announcement itself or direct connection with the product.
It was said in Thompson v G.P. Putnam's Sons (1963) 40 Misc 2d 608, 243 NYS2d 652, that if an article containing references
to statements alleged to have been made by the plaintiff, a literary critic, had been published in bona fide periodicals or other
publications not circulated for the purpose of promoting sales of the book which was the subject of the critic's views, but solely
to disseminate information as to a book in which there was great public interest, such a publication would not be for trade or
advertising purposes under the New York statute, even if the critic's true views were not correctly represented in the article.
See Donohue v McCall Corp. (1944, Sup) 51 NYS2d 727, involving publication of plaintiff's picture in a magazine where the
evidence was held to sustain the jury's finding that the use was not for purposes of trade or advertising.
A complaint seeking to recover damages for the alleged wrongful use of the plaintiff's picture in a book entitled "Dance
Memoranda" was held in Gavrilov v Duell, Sloane & Pearce, Inc. (1948, Sup) 84 NYS2d 320, affd without op 276 App Div
826, 93 NYS2d 715, not to state a cause of action where it appeared that the plaintiff had been a professional dancer for many
years and had become a known public figure in his vocation, and that the publication of his picture was not being used in
conjunction with any collateral product.
The court in Jansen v Hilo Packing Co. (1952, Sup) 116 NYS2d 251, refused to enjoin the distribution of picture cards of
plaintiffs, well–known professional baseball players, which plaintiff placed in bags of popcorn, where no advertising appeared
on the picture cards and the cards did not mention that plaintiffs indorsed the product. The court rejected plaintiffs' argument
that the defendants' use of their pictures would decrease the value of their indorsement contract with various manufacturers.
The publication in a magazine of a photograph of an automobile accident victim was held in Leverton v Curtis Publishing Co.
(1951, CA3 Pa) 192 F2d 974 (applying Pennsylvania law), not to be an appropriation of such photograph for a commercial use,
even though the magazine was operated as a commercial enterprise.
The publication of a picture of the family of a murdered man in conjunction with a factual account of the homicide in the
magazine "Front Page Detective" was held in Jenkins v Dell Publishing Co. (1958, CA3 Pa) 251 F2d 447 (applying Pennsylvania
law), cert den 357 US 921, 2 L. Ed. 2d 1365, 78 S Ct 1362, not to be an invasion of privacy for advertising purposes, since
such matter had appeared in the magazine because the publisher thought that the public would be interested in reading about
it, and it had not been used to advertise, promote, or publicize anything.
In Donahue v Warner Bros. Pictures Distributing Corp. (1954) 2 Utah 2d 256, 272 P2d 177, the court held that a Utah statute
(based on the New York statute) which provides a cause of action against one who uses the plaintiff's name "for advertising
purposes or for purposes of trade" was intended to apply only to actual advertising or the promotion of sales of collateral
commodities, so that the semifictional portrayal of a deceased entertainer in a motion picture was not "for purposes of trade"
within the prohibition of the statute. The court rejected the plaintiff's contention that the use of a person's name or picture in
any manner in which the profit motive is present comes within the meaning of the phrase "for purposes of trade," since there
is nothing about the language of the statute which would suggest that there is any difference between a motion picture which
is educational or informational and one which is fictional. The court noted that inasmuch as both types of films are made for
the purpose of making a profit and since the public has an important interest to be served in the free and uninhibited expression
in all channels of public information, the right of privacy cannot be permitted to supersede the rights of the whole of society,
which is served by the allowance of freedom of expression in motion pictures, biographies, historical plays, and the like. 7

Cases:
In action for invasion of privacy based on publication of nude photographs of minor plaintiffs in sex magazine, plaintiffs could
not maintain claim for commercial misappropriation, where plaintiffs were not identified by name or otherwise, and defendant
magazine did not exploit photographs in publicity campaign designed to sell more magazines. Faloona by Fredrickson v.
Hustler Magazine, Inc., 607 F. Supp. 1341, 11 Media L. Rep. (BNA) 2121 (N.D. Tex. 1985), judgment aff'd, 799 F.2d 1000,
13 Media L. Rep. (BNA) 1353 (5th Cir. 1986).
Publisher could invoke newsworthiness privilege on plaintiff's misappropriation claim arising out of advertisement promoting
sale of book containing analysis of plaintiff's conspiracy theories about presidential assassination, a pivotal and baffling public
issue about which plaintiff was leading critic; plaintiff's theories were newsworthy, serious analyses of his theories were
derivatively newsworthy, and advertisement promoting sale of such a book retained newsworthiness immunity. Lane v.
Random House, Inc., 985 F. Supp. 141, 23 Media L. Rep. (BNA) 1385 (D.D.C. 1995).
Magazine publisher did not appropriate two high school students' names or likenesses for commercial use when it included their
photographs, names and hometowns in its magazine, as required for tort of invasion of privacy–appropriation under Arkansas
law; names and photographs of students in magazine were not used to advertise the magazine. Restatement (Second) of Torts
§ 652A. Stanley v. General Media Communications, Inc., 149 F. Supp. 2d 701, 29 Media L. Rep. (BNA) 1631 (W.D. Ark.
2001) (applying Arkansas law).
In action by crime victim and her daughter who alleged that television network, station, and producer appropriated victim's
likeness for commercial purposes when they broadcast "weekly news and public affairs magazine" report concerning mobile
crisis intervention team and depicting emergency assistance counselor inside victim's home talking with her shortly after
domestic violence incident, court would dismiss claim where statute provided for "news account" exception to liability, where
fact that "magazine" generated advertising revenue did not prevent defendants from claiming news account immunity, where
appropriate focus was on use of likeness itself, where victim's face was used in connection with news account even if "magazine"
was not traditional news show, and where there was no merit to victim's claim that defendants forfeited any privilege because
report was "patently false, misleading and sensationalized." Baugh v CBS, Inc. (1993, ND Cal) 828 F Supp 745, 93 Daily
Journal DAR 10373, 21 Media L R 2065 (applying Cal law).
In action for false light invasion of privacy and appropriation of name for purposes of advertising or selling products, brought
by business associate of Howard Hughes against author of biography of Hughes, publisher of book, publisher of magazine
excerpt, and book sellers who had allegedly invaded plaintiff's right to privacy by writing about, publishing, and distributing
his confidential letters and by characterizing relationship between plaintiff and Hughes as "courtship and marriage," with
descriptions of men exchanging vows and Hughes telling plaintiff that they would spend rest of their lives together and
compelling plaintiff to vow never to leave Hughes, trial court properly dismissed complaint without leave to amend where
Hughes was beyond doubt public figure and so also was plaintiff as his alter ego and personal representative to the world and
therefore facts were newsworthy and could not be characterized as private; moreover, neither common law nor statutory cause
of action for appropriation of name could be sustained where material came within exception for news accounts unless alleged
to be entirely false and plaintiff did not allege that all or even majority of material published was false. Maheu v CBS, Inc.
(1988, 2nd Dist) 201 Cal App 3d 662, 247 Cal Rptr 304, 15 Media L R 1548, 7 USPQ2d 1238.

See Loft v Fuller (1981, Fla App D4) 408 So 2d 619, petition den (Fla) 419 So 2d 1198, § 19.
In action by pilot, who had narrowly escaped injury after falling out of plane, arising out of pilot's claim that two tabloids
invaded his privacy and commercially appropriated his name when they each published account of incident, court would deny
pilot's motion to reconsider its previous order dismissing his commercial appropriation claim against one tabloid and would
grant other tabloid's motion to dismiss commercial appropriation claim where pilot merely alleged that tabloids had used his
name in article and that tabloids were motivated by desire to sell newspapers and make profit, where newspaper is not liable for
commercial appropriation to every person whose name or likeness it publishes, and where pilot could have stated claim if he
had alleged that tabloids had used his name and likeness in advertising campaign to boost sales or that tabloids had permitted
one of their advertisers to use pilot's name and likeness, neither of which allegation was made. Dempsey v National Enquirer
(1989, DC Me) 702 F Supp 934, 702 F Supp 927, 16 Media L R 1396 (applying Me law).
Fact that videotapes, made by media companies, of hospital emergency room patients were broadcast on reality–based television
program did not establish the use of person's name or likeness "for trade purposes," as element of tort of commercial
appropriation of person's name or likeness, though the media companies were engaged in for–profit activities, and the program
may have constituted entertainment rather than presenting important public events. Castro v. NYT Television, 370 N.J. Super.
282, 851 A.2d 88 (App. Div. 2004).
In action for unauthorized use of likeness brought by television actor against various groups connected with annual television
Clio awards ceremony and producers of television program which in 1986 broadcast tape of "classic commercial" (originally
aired from 1967—1971) in which plaintiff appeared, defendants were entitled to summary judgment where plaintiff's picture
was, in context shown, not used for purposes of advertising or trade and where award was newsworthy event. Welch v Group
W. Productions, Inc. (1987) 138 Misc 2d 856, 525 NYS2d 466.
Photographic subject's right of privacy was not violated, under the New York privacy statute, when art gallery displayed collage
containing her image as part of exhibition of collage's maker's works, and distributed exhibit catalog; display was artistic
expression protected generally by First Amendment, and use was not for purposes of advertising or trade. U.S. Const. Amend.
I; N.Y. McKinney's Civil Rights Law § 51. Hoepker v. Kruger, 200 F. Supp. 2d 340, 30 Media L. Rep. (BNA) 1737 (S.D.
N.Y. 2002) (applying New York law).
See Freihofer v Hearst Corp. (1985) 65 NY2d 135, 490 NYS2d 735, 480 NE2d 349, 12 Media L R 1056, § 19.
In action by model alleging invasion of rights under privacy statute and invasion of right of publicity against magazine based on
publication of photograph of plaintiff modeling jacket in article on fall fashions, trial court properly granted summary judgment
in defendant's favor, where subject of defendant's article was newsworthy, defendant's motivation to increase circulation of
magazine by publishing article did not mean that plaintiff's picture was used for trade purposes under applicable statute, and
circumstances that article contained information normally included in advertisements and that stores mentioned in article had
previously advertised in magazine were not enough to raise jury question as to whether article was published for advertising
purposes. Stephano v News Group Publications, Inc. (1984) 64 NY2d 174, 485 NYS2d 220, 474 NE2d 580, 11 Media L
R 1303.
Circulation to book reviewers of galley proofs of book which allegedly invaded plaintiff's privacy was not for advertising.
Estate of Hemingway v Random House, Inc. 23 NY2d 341, 296 NYS2d 771, 244 NE2d 250, 32 ALR3d 605.

Plaintiff, whose name, address, date of birth, and Social Security were published by daily newspaper along with information
concerning other individuals in connection with their alleged involvement in an illegal sports gambling operation, could not
recover under Civil Rights Law, because information was published by defendant in a newsworthy article and was not used for
advertising or trade purposes. McKinney's Civil Rights Law § 50. Valeriano v. Rome Sentinel Co., 43 A.D.3d 1357, 842
N.Y.S.2d 805 (4th Dep't 2007).
Use of the photographs of landlord in flyers drafted and distributed by tenants as means of encouraging others to join tenants'
association was not use for advertising purposes, as required to state claim for breach of privacy in violation of Civil Rights
Law. McKinney's Civil Rights Law §§ 50, 51. Guerrero v. Carva, 779 N.Y.S.2d 12 (App. Div. 1st Dep't 2004).
Newspaper's use of former beauty queen's name and likeness without her consent in article alleging that she used her position,
and sex, to spy on foreign officials was not "commercial" use, and thus newspaper was protected from liability under
newsworthiness exception to civil rights privacy laws, where newspaper had no financial interest in promoting beauty pageant,
and use of her photo and name bore real relationship to article's subject, namely, her purported exploits during her reign.
McKinney's Civil Rights Law §§ 50, 51. Bement v. N.Y.P. Holdings, Inc., 760 N.Y.S.2d 133, 31 Media L. Rep. (BNA)
1722, 66 U.S.P.Q.2d (BNA) 1795 (App. Div. 1st Dep't 2003).
Author's failure to allege that e–mail sent under his name by cartoonist served a trade purpose by bringing customers to cartoonist
or helping him make a profit precluded claim that cartoonist violated statute concerning right of privacy of one's name, portrait
or picture, where sole allegation was that e–mail stimulated discussion on web site to which cartoonist was not alleged to have
a commercial connection. McKinney's Civil Rights Law §§ 50, 51. Rall v. Hellman, 726 N.Y.S.2d 629 (App. Div. 1st
Dep't 2001).
Works of fiction do not fall within the narrow scope of the statutory definitions of "advertising" or "trade" in Civil Rights Law.
McKinney's Civil Rights Law §§ 50, 51. Costanza v. Seinfeld, 719 N.Y.S.2d 29 (App. Div. 1st Dep't 2001).
In action by family of deceased who alleged newspaper used their names in advertisement without their consent, court erred
in denying newspaper's motion to dismiss where family had previously brought action against local funeral director to recover
damages for negligent handling of burial, where following settlement of that action, newspaper had published extensive article
describing case and underlying incidents, where family had fully cooperated in preparation of that article, where basis of family's
present action was "open letter" from same funeral director that appeared in newspaper and that was described on its face as
"paid advertisement," where not all material published in advertising sections of newspaper is designed to solicit customers or
sell product or service, where family did not allege in its complaint that open letter used their name to solicit customers for
funeral director or draw trade to his firm, and where complaint therefore failed to state cause of action. Kane v Orange County
Publs. (1996, App Div, 2d Dept) 649 NYS2d 23, app den 89 NY2d 809.
Under statute protecting against nonconsensual use of individual's name or picture for advertising purposes or for purposes of
trade, it is well settled that picture illustrating article on matter of public interest is not considered used for purpose of trade
or advertising unless it has no real relationship to article; it is enough that photograph illustrates general theme of article; in
action under nonconsensual use of name or picture statute by couple depicted in magazine photograph used to illustrate various
aspects of Mexican immigrant life in New York City, countered in denying magazine's motion to dismiss where caption under
photograph stated that transplanted Mexicans paid up to $100 to "swill" Mexican beer and listen to local bands once per month,
and where couple's depiction, concededly enjoying concert, was sufficient to take use of their photograph out of purview of
statute. Alvarado v K-III Magazine Corp. (1994, 1st Dept) 203 App Div 2d 135, 610 NYS2d 241.

In action arising out use of girl's photograph and name by nonprofit corporation, which apparently was involved in work with
neglected children, in its annual financial report, court erred in granting summary judgment in favor of girl on her claim under
statute prohibiting use of likeness "for advertising purposes or for purposes of trade", where it could not be said as matter of law
that publication in which girl's photograph appeared was, in essence, advertisement rather than that which it purported to be,
that is, annual financial statement, where not every written statement by nonprofit corporation is to be regarded as advertisement
merely because it contains flattering descriptions of corporation's work, and where girl failed to demonstrate as matter of law
that corporation's financial statement was published primarily for advertising or trade purposes. Smith v. Long Island Youth
Guidance, Inc., 181 A.D.2d 820, 581 N.Y.S.2d 401 (2d Dep't 1992).
See Velez v VV Pub. Corp. (1988, 1st Dept) 135 App Div 2d 47, 524 NYS2d 186, 14 Media L R 2290, app den 72 NY2d 808,
533 NYS2d 57, 529 NE2d 425, § 7.
In action for violation of statutory right of privacy, based on use of photograph of plaintiffs in guide book to nude beaches,
trial court erroneously found that publication of photographs was for purposes of trade, where photographs came within public
interest exception to provision requiring written consent before any trade or business use of photographs. Creel v Crown
Publishers, Inc. (1985, 1st Dept) 115 App Div 2d 414, 496 NYS2d 219, 12 Media L R 1558.
Invasion of privacy action brought by former mayoral candidate was properly dismissed, where action was based on
misidentification of plaintiff in photograph published by defendant newspaper in connection with report on death of mayor,
which publication was newsworthy and not for purpose of advertising or trade. Bytner v Capital Newspaper, Div. of Hearst
Corp. (1985, 3d Dept) 112 App Div 2d 666, 492 NYS2d 107, 12 Media L R 1148, affd 67 NY2d 914, 501 NYS2d 812, 492
NE2d 1228, 12 Media L R 2136.
In action for invasion of privacy based on use of plaintiff's name as plaintiff in lawsuit challenging use of federal funds to finance
construction of hotel, trial court properly dismissed complaint, where even if plaintiff's allegations that lawsuit was scheme by
competing hotel owners to protect their financial interests were true, use of plaintiff's name in this context was not sufficiently
related to commercial end to constitute use for purposes of trade as required by statute. Griffin v Law Firm of Harris, Beach,
Wilcox, Rubin & Levey (1985, 3d Dept) 112 App Div 2d 514, 490 NYS2d 919.
Picture showing plaintiff boys playing or standing on beach in vicinity of model wearing swimsuit and published in feature
section of newspaper supplement was not for advertising. Pagan v New York Herald Tribune, Inc. 32 App Div 2d 341, 301
NYS2d 120.
Any possible use of plaintiff's image to advertise rock band documentary, in which the images of plaintiff appeared, was an
"incidental use" not actionable under "right to privacy" statute. McKinney's Civil Rights Law § 51. Ward v. Klein, 10
Misc. 3d 648, 809 N.Y.S.2d 828 (Sup 2005).
Alleged use of plaintiff's name on false job listings on internet website and in connection with subscribing to pornographic
websites and catalogs was not "for advertising purposes" or "for the purposes of trade," as required to support claim under right
to privacy statute. McKinney's Civil Rights Law § 51. School of Visual Arts v. Kuprewicz, 771 N.Y.S.2d 804, 20 I.E.R.
Cas. (BNA) 1488 (Sup 2003).
Internet web site listing of dance center's former employee as dance center's contact person was not for "advertising purposes,"
within meaning of statute authorizing civil action where name of living person is used for advertising purposes without written
consent; dance center provided information at no cost to third party creator of web sites for arts organizations, and dance center

did not create or maintain the web site. McKinney's Civil Rights Law § 51. Leary v. Punzi, 179 Misc. 2d 1025, 687 N.Y.S.2d
551 (Sup. Ct. 1999).
In action by sculptor against model arising out of allegedly negligent destruction of plaster cast of model that sculptor had
initially made to demonstrate safety of his casting techinque and that sculptor had later decided to use to make bronze castings
for sale, court would deny model's motion asserting that she could not be held liable for damages due to sculptor's inability
to sell copies of plaster casting under statutes prohibiting use of person's portrait or picture for advertising or trade without
having obtained written consent, where model was trustee of wildlife preservation organization, one of whose goals was to make
sculpture of elephant by tranquilizing elephant and then making impression of sleeping elephant with quick drying substance,
where model volunteered to have her face covered with substance to demonstrate its safety, where over course of next two years,
sculptor modified impression he had taken of model so as to make plaster cast of her head in deep repose upon pillow, where cast
was then taken to model's apartment, at which it was later damaged beyond repair, where sculptor had created work of art out of
impression of model and just because he incidentially had intended to sell limited number of copies of his creation did not mean
that he was acting "for purposes of trade," where determining whether proposed sale of bronze castings of sculpture for profit
would bring it under statutes did not depend on motivation of sculptor in selling bronze castings in that dissemination for profit
is not sole determinant of what constitutes trade under statutes, and where artist may make work of art that includes recognizible
likeness of person without his or her written consent and sell at least limited number thereof without violating statutes; jury
question existed as to whether sculpture constituted recognizible likeness of model; model's posing for initial impression in no
way constituted consent to sculptor's later making and selling copies of sculpture from impression and, furthermore, any express
or implied oral consent to using her impression thereafter to make sculpture and then sell copies thereof, or circumstances
constituting estoppel, would only serve to mitigate damages in affirmative action under statute governing commercial use of
likeness. Simeonov v Tiegs (1993, Civ Ct) 159 Misc 2d 54, 602 NYS2d 1014.
law), § 20[a].
Fictionalized account of murder of plaintiff's daughter alleged primarily to advance defendant's commercial interests did not
state cause of action for appropriation or invasion of privacy. Cordell v Detective Publications, Inc. (DC Tenn) 307 F Supp
1212, affd (CA6) 419 F2d 989 (applying Tenn law).
In action brought by well–known pastor who was "public figure" against publishers and distributor of magazine in which "ad
parody" appeared which attempted to satirize advertising campaign for Campari Liqueur, in which celebrities talked about their
"first time," meaning their first encounter with Campari Liqueur, but with double entendres and sexual connotations, where
parody contained plaintiff's photograph and text of interview attributed to him in which plaintiff allegedly detailed an incestuous
rendezvous with his mother in an outhouse in Lynchburg, Virginia, and where at bottom of page was disclaimer stating "ad
parody—not to be taken seriously," district court properly dismissed plaintiff's claim for invasion of privacy; relevant statute
provided for such cause of action only where plaintiff's name and likeness was used for advertising purposes or for purposes
of trade and publication of parody did not constitute such use, in that it contained disclaimer, and jury found that it was not
reasonably believable. Falwell v Flynt (1986, CA4 Va) 797 F2d 1270, 13 Media L R 1145, 21 Fed Rules Evid Serv 401,
reh den, en banc (CA4) 805 F2d 484, 13 Media L R 1671 and cert gr (1987, US) 94 L Ed 2d 788, 107 S Ct 1601, motion
gr (US) 97 L Ed 2d 759, 107 S Ct 3259 and revd on other gnds (US) 99 L Ed 2d 41, 108 S Ct 876, 14 Media LR 2281
(applying Virginia law).

[Top of Section]
[END OF SUPPLEMENT]
II. Extent of, and Limitations Upon, Right of Action
A. Generally
§ 5. Who may sue and be sued
A few cases have involved the question of whether a particular plaintiff was entitled to bring an action under the New York
statute giving a cause of action for the use of a person's name or likeness for advertising or trade purposes without such person's
written consent.
It was held in Jaccard v R. H. Macy & Co. (1941) 176 Misc 88, 26 NYS2d 829, that since neither a partnership name nor
a corporate name is within the protection of the New York privacy statute, a name assumed for business purposes only, the
exclusive use of which has been granted to a corporation, is in the same category. In this case it appeared that the plaintiff, whose
name was Ginette Jaccard, a well–known dress designer, had been engaged in business under the assumed name of "Ginette de
Paris," and thereafter caused to be formed a corporation bearing the name "Ginette de Paris, Inc.," and granted to it the exclusive
right to use such adopted name in connection with the sale of dresses. She was held to have no right to maintain an action
under the New York statute against one who used the name "Ginette de Paris" in connection with the sale of patterns of a dress
designed by the plaintiff. On appeal, the court affirmed in 265 App Div 15, 37 NYS2d 570, adding that a recovery would
have been denied in the case even if the plaintiff's true name, rather than an assumed business name, had been used.
Under the New York statute giving a cause of action for the use of a living person's name, portrait, or picture for advertising
purposes or purposes of trade, it was held in Shubert v Columbia Pictures Corp. (1947) 189 Misc 734, 72 NYS2d 851, affd
without op 274 App Div 751, 80 NYS2d 724, that a corporation did not come within the statutory category of a living person,
so that where the name of a theater was allegedly used by the defendants in a motion picture, the owner thereof had no cause
of action under the statute.
It has been held that where a state has waived its immunity and agreed that its liability may be determined in the same manner
as in actions against individuals or corporations, an individual may maintain an action against the state for publishing and
circulating his picture for trade and advertising purposes where such action arose in connection with the state's operation of a
business which could have been operated by private enterprise. See Seidelman v State (1952) 202 Misc 817, 110 NYS2d
380, where the plaintiff's claim arose out of the state's operation of a skiing facility for a fee.
Cases:

Corporation which allegedly appropriated another corporation's corporate trademark was entitled to dismissal of claim under
Federal Rules of Civil Procedure Rule 12(b)(6). Right of publicity inures to individual who seeks to protect and control
commercial value of his name or likeness, but does not extend to protect against unauthorized exploitation of another's corporate
trademark. Eagle's Eye, Inc. v Ambler Fashion Shop, Inc. (1985, ED Pa) 627 F Supp 856, 227 USPQ 1018.
Two plaintiffs who were mailed letters and books of tickets for chances on sweepstakes, which letters informed addressee that he
and two other named people had been selected to receive sweepstakes book, were not entitled to bring class action on behalf of
addressees of such letters for unauthorized use of one's name for commercial exploitation where, inter alia, class numbered from
21 to 50 million, since enforcement of principal law that one whose name is used for commercial purpose without authorization
has right to nominal damages would impose heavy penalty on defendants without serving interest of any plaintiff and would
require court to examine mental and subjective state of each of millions of plaintiffs. Stilson v Reader's Digest Asso. 28 Cal
App 3d 270, 104 Cal Rptr 581, cert den 411 US 952, 36 L Ed 2d 414, 93 S Ct 1928.
Interior designer's brochures, which allegedly mentioned that designer was providing services to former professional baseball
player, violated statute prohibiting any person from publishing or printing for purposes of trade or for any commercial or
advertising purpose the name or other likeness of any natural person without the consent to such use; while designer's evidence
that the brochures were never distributed was relevant to the jury's determination of damages resulting from printing the
brochures, the fact remained that designer printed the brochures for advertising purposes in violation of the statute. West's
F.S.A. § 540.08. Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. Dist. Ct. App. 4th Dist. 2004), reh'g denied,
(Nov. 16, 2004).
See Martin Luther King, Jr., Center for Social Change, Inc. v American Heritage Products, Inc. (1982) 250 Ga 135, 296
SE2d 697, 216 USPQ 711, § 3.
The fact that a person's likeness is used, in a work protected by the First Amendment right of free expression, to create or
enhance profits does not make the use actionable under a right of publicity, nor does the use of that person's name or likeness
in an advertisement or promotion for the underlying work infringe upon a person's right of publicity. U.S. Const. Amend. I.
Montgomery v. Montgomery, 60 S.W.3d 524, 61 U.S.P.Q.2d (BNA) 1098 (Ky. 2001).
Theodor Seuss Geisel had no right to maintain action for invasion of privacy arising from use of his assumed name "Dr. Seuss"
in connection with sale of dolls designed on basis of cartoons created by him. Geisel v Poynter Products, Inc. (DC NY) 295
F Supp 331 (applying New York law).
Under New York law, one may recover for trade or commercial use of one's likeness, under New York privacy statute, only to
extent that use occurs in New York. N.Y. McKinney's Civil Rights Law §§ 50, 51. Cuccioli v. Jekyll & Hyde Neue
Metropol Bremen Theater Produktion GmbH & Co., 150 F. Supp. 2d 566 (S.D.N.Y. 2001) (applying New York law).
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§ 5.5. Representatives of deceased persons

Cases:
See Loft v Fuller (1981, Fla App D4) 408 So 2d 619, § 19.
Use of a person's name or likeness for commercial gain is an actionable violation of that person's right of publicity, a variety of
the tort of invasion of privacy. However, in order that this right may descend to the person's estate upon his death, he must have
exploited it for commercial gain during his lifetime; no "right of publicity" descended to estate of deceased civil rights leader
who had received no such gain from exploitation of his name or likeness during his lifetime beyond receipt of modest amounts
of honorariums, used for necessities of life or to support civil rights movement. Martin Luther King, Jr. Center for Social
Change, Inc. v American Heritage Products, Inc. (1981, ND Ga) 508 F Supp 854 (construing Georgia law).
Statutory right to preclude use of a person's name for advertising or trade purposes did not survive death, and use of family name
was not actionable by decedent's relatives where it did not single out offended person and point to him. Antonetty v Cuomo
(1986) 131 Misc 2d 1041, 502 NYS2d 902, affd without op (1st Dept) 125 App Div 2d 1010.
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§ 6. Sufficiency of plaintiff's identification
Both under the New York statute, which gives a cause of action to any person whose "name, portrait, or picture" is used for
purposes of advertising or trade, 8 and under common–law interpretations of the right of privacy, it is clear that in order to
constitute an actionable invasion of privacy, the defendant must have used a name or picture which clearly identifies or refers
to the plaintiff. In the following cases, the courts have discussed whether, in a particular instance, the plaintiff was sufficiently
identified so as to entitle him to bring an action for invasion of privacy.
Where the defendant, in advertising its cleansing product on television, used as a commercial a cartoon film of a duck from
which emanated words spoken by an actor who allegedly imitated the well–known and distinctive voice of the plaintiff, Bert
Lahr, it was held in Lahr v Adell Chemical Co. (1962, CA1 Mass) 300 F2d 256, that no cause of action was stated under the
New York statute which gives a cause of action for commercial use of a party's "name, portrait or picture," the court stating
that had the legislature intended that whenever an anonymous speaker extolled a commercial product a cause of action arose if
anyone could claim the voice was mistaken as his, it would have used a phrase of more general import.
In Gardella v Log Cabin Products Co. (1937, CA2 NY) 89 F2d 891, an action to recover under the New York statute for the
use in radio advertising of the name, "Aunt Jemima," which had been adopted and used by the plaintiff as her stage name, the
court stated, in answer to the contention that the statute did not relate to stage or other fictitious or assumed names: "Having
in mind the evident purpose of the statute, its application to a public or stage name, as well as a private one, seems inevitable..
… If the stage name has come to be closely and widely identified with the person who bears it, the need for protection against

unauthorized advertising will be as urgent as in the case of a private name; if anything, the need will be more urgent. The public
character of a name may mean the surrender of a certain degree of privacy and may affect the extent and limit of the protection
accorded. But the abuse of such a name by an advertiser cannot be justified, and it is against such abuse that the statute is
directed." It was held, however, that the statute did not apply against the defendant in this case, who had long previously adopted
and registered the name "Aunt Jemima" as a trademark.
And it is stated in Levey v Warner Bros. Pictures (1944, DC NY) 57 F Supp 40, that the provisions of the New York statute
relating to the "portrait or picture" of a person "require more than a mere picture of a scene suggested by a play. They require
a clear representation of a person whether by photograph, statute, imitation, or word painting. They require a representation
of a person at least approaching likeness."
The unauthorized use of the name of an actress and concert singer as the signer of a printed advertisement of a motion picture,
purporting to be an autographed letter of such woman, which was of such nature as to cast doubt upon her moral character and to
subject her to embarrassing and distressing consequences, was held to constitute an actionable invasion of her right of privacy,
in Kerby v Hal Roach Studios (1942) 53 Cal App 2d 207, 127 P2d 577. It appeared in this case that the name signed to the
letter in question, in addition to being that of plaintiff, was also the name of the chief character in two works of fiction previously
published and of the chief feminine character in the motion picture being advertised. The court took the view, however, that the
letter did, under the circumstances, refer to the plaintiff and was reasonably calculated to produce the undesirable consequences.
But attention is called to Cabaniss v Hipsley (1966) 114 Ga App 367, 151 SE2d 496, where a photograph of plaintiff, an exotic
dancer who performed under the names "Melanie Lark" and "Charming Charmaine De Aire," was used in an advertisement
for a "Playboy Club" (at which plaintiff had never appeared) in conjunction with the words, "Dawn Darling—Provocative and
Exciting Exotic Dancer" ("Dawn Darling" being the stage name of a dancer who was appearing at such club). Stating that the
only falsity revealed by the evidence was that plaintiff was falsely pictured as appearing at the club under the name "Dawn
Darling," the court held that this evidence did not authorize a verdict for general damages to plaintiff's reputation, since there
was no evidence to indicate that the stage name "Dawn Darling" was in a category materially different from that which would
include the stage names which plaintiff had used.
The unauthorized use of the plaintiff's photograph by a lithographic company in producing large posters used in advertising a
motion picture (with which the plaintiff had no connection), and the reproduction of such photograph, with slight changes in
the outline of the plaintiff's features and in the poise of her head, was held in Loftus v Greenwich Lithographing Co. (1920)
192 App Div 251, 182 NYS 428, to constitute the use of her picture for advertising purposes and for the purposes of trade,
entitling her to recover damages and to an injunction, under the New York statute. It appeared in this case that the plaintiff was
an actress, but that she had no connection with the motion picture advertised by the use of her picture.
It was said that in Adrian v Unterman (1952) 281 App Div 81, 118 NYS 2d 121, affd 306 NY 771, 118 NE2d 477, a surname
alone is within the provision of the New York statute authorizing one whose name has been used for advertising purposes
without his consent to maintain an action to enjoin such use.
A manikin was held in Young v Greneker Studios (1941) 175 Misc 1027, 26 NYS2d 357, to be a "portrait or picture" within
the meaning of the New York statute, so as to entitle the person who posed therefor to damages and injunctive relief against
one who, without authority, sold copies thereof to numerous persons.
An allegation that the plaintiff was the oldest living member of his family, and had the right to use its coat of arms, and that
the defendant, without his consent, had affixed the plaintiff's surname to the labels of certain of its wine products, together with

his family coat of arms, for commercial and advertising purposes, was held in Orsini v Eastern Wine Corp. (1947) 190 Misc
235, 73 NYS2d 426, affd 273 App Div 947, 78 NYS2d 224, app den 273 App Div 996, 79 NYS2d 870, to state a cause of
action under the New York privacy statute. The court noted the defendant's contention that under the statute the plaintiff must
be identified by means of his name, picture, or portrait, so that the use of a surname without the full name did not constitute a
violation of the statute, but stated that the identification was the essential point, pointing out that the allegation of the complaint
with respect to the use of the coat of arms in conjunction with the surname presented a method of identification which might
be as effective as a full name. The court added that the defendant's argument that the average purchaser of the wine would not
associate the family crest with the plaintiff personally was an argument addressed to proof and not allegation, since while the
average imbiber of wine was not a genealogist, the complaint on its face alleged that the use of the coat of arms identified the
name of the plaintiff in the minds of the public.
One whose picture was published in connection with an advertisement was held in Flake v Greensboro News Co. (1938) 212
NC 780, 195 SE 55, to be entitled to recover for this invasion of her right of privacy, although the picture bore as a caption
the name of a person other than the plaintiff.
Cases:
In action for invasion of privacy brought by film celebrity based on photograph of actor bearing remarkably similar appearance
to plaintiff in advertisements, there was question for jury as to whether photograph was "portrait or picture" of plaintiff within
meaning of statute prohibiting commercial misappropriation of another's name or likeness, where there were slight physical
differences between plaintiff's face and that of actor shown in photograph, image presented in advertisements did not correspond
to plaintiff's image in recent years, and advertisement could arguably be construed as presenting look–alike rather than celebrity
himself. Allen v National Video, Inc. (1985, SD NY) 610 F Supp 612, 226 USPQ 483.
Despite widespread association of phrase, "Here's Johnny," with plaintiff, such phrase could not be construed as name of plaintiff,
therefore plaintiff was not entitled to relief for infringement of privacy. Carson v Here's Johnny Portable Toilets, Inc. (1980,
ED Mich) 498 F Supp 71, 209 USPQ 266.
See Abdul-Jabbar v GMC (1996, CA9 Cal) 85 F3d 407, 96 CDOS 3618, 96 Daily Journal DAR 5940, § 20[a].
See Schifano v Greene County Greyhound Park, Inc. (1993, Ala) 624 So 2d 178, 21 Media L R 1794, § 21[b].
In action by race car driver against cigarette manufacturer which altered photograph of plaintiff's race car, changing number
on car and adding spoiler with name of cigarettes, and used altered photograph in television advertisement with "balloon"
containing written message endorsing cigarettes appearing to come from driver of car, summary judgment for defendant was
reversed, even though face of driver of car was not visible in photograph, where possibility existed that identification of plaintiff
from description of car could be made. Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) (applying
California law) (citing annotation).
Under Colorado law, brewery's use of term "beerman" in advertising campaign did not violate right of publicity of beer vendor
who had developed "Bob the Beerman" character at athletic events; there was no evidence that vendor, as opposed to his

character, was celebrity, brewery had not used vendor's likeness, and no beer vending characters used in advertisements bore
close resemblance to vendor. Donchez v. Coors Brewing Co., 392 F.3d 1211 (10th Cir. 2004) (applying Colorado law).
In action by manufacturer of deck material against its former distributor, in which distributor asserted counterclaim alleging
that his privacy was invaded when manufacturer used photograph of him in its 1991 brochure, court would grant manufacturer's
motion for summary judgment on counterclaim where photograph was taken by officer of manufacturer in 1980, which was
year in which distributor was hired by manufacturer, where photograph depicted distributor as he appeared to be looking at
set of plans on job site with two other individuals, where photograph originally was used in manufacturer's colored 1980
brochure, where distributorship was terminated in 1987, where photograph subsequently was published in black and white
in 1991 brochure, where intended focus of photograph was on deck material and not on distributor, where neither distributor
nor other two individuals were identified in caption, which described ease of loading and transporting deck material, where
depiction of distributor was less than half inch in width and length, photograph was unclear, and distributor's features were
unrecognizable, where no one recognized distributor and there was no evidence that he was associated with and was endorsing
product depicted, and where no reasonable juror could conclude that manufacturer's use of distributor's photograph constituted
commercial exploitation. Epic Metals Corp. v Condec, Inc. (1994, MD Fla) 867 F Supp 1009 (applying Fla law).
Fact that photograph of movie star was taken 40 years earlier was irrelevant in suit brought under New York right of privacy
statute, since it was clear representation of famous movie star, easily recognizable as picture of her. Negri v Schering Corp.
(DC NY) 333 F Supp 101 (applying New York law).
Show's creators did not use individual's name, portrait, or picture within the meaning of the Civil Rights Law in creating
character for television program, so as to support statutory invasion of privacy claims, where defendants did not use individual's
actual name, film him, or make use of his photograph in any form, except during episode in which plaintiff appeared briefly as
actor; similarity of last names between plaintiff and fictional character was not cognizable under statute. McKinney's Civil
Rights Law §§ 50, 51. Costanza v. Seinfeld, 719 N.Y.S.2d 29 (App. Div. 1st Dep't 2001).
Statute creating cause of action for invasion of privacy if living person's name, portrait, or picture was used for advertising
purposes without consent, could not be used by plaintiff, Guy Lombardo, where defendants produced television commercials
which pictured several of defendant manufacturer's automobiles amidst background of New Year's Eve party and utilized
services of actor conducting band in a fashion reminiscent of plaintiff. Lombardo v Doyle, Dane & Bernbach, Inc. (1977) 58
App Div 2d 620, 396 NYS2d 661.
Even assuming that Internet web site created for various arts organizations constituted advertising, use of former dance center
employee's name was merely incidental to advertising, thereby precluding former employee's statutory action for unauthorized
use of name for advertising purposes; web site did not identify former employee as a dancer or performer promoting the
organization but instead listed former employee as dance center's contact person for further information. McKinney's Civil
Rights Law § 51. Leary v. Punzi, 179 Misc. 2d 1025, 687 N.Y.S.2d 551 (Sup. Ct. 1999).
See Simeonov v Tiegs (1993, Civ Ct) 159 Misc 2d 54, 602 NYS2d 1014, § 4[b].
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[END OF SUPPLEMENT]

§ 7. Effect of mere incidental use of plaintiff's name
Under the New York statute it has been held that to constitute an invasion of the right of privacy, the use of a name must amount
to a meaningful or purposeful commercial use of the name of a person and may not be a mere incidental use. Moglen v Varsity
Pajamas, Inc. (1961) 13 App Div 2d 114, 213 NYS2d 999.
In the following cases, the reference to plaintiff has been held too incidental to amount to an invasion of privacy.
Where a motion picture entitled "The Inside of the White Slave Traffic" showed a factory building upon which there was a sign
bearing the name and business of the plaintiff, it was held in Merle v Sociological Research Film Corp. (1915) 166 App Div
376, 152 NYS 829, that no violation of the New York statute had taken place, since in order to constitute such a violation, it
must appear that the use of plaintiff's picture or name is itself for the purpose of trade and is not merely an incidental part of a
photograph of an actual building. The court stated that where a man places his sign upon the outside of a building, he cannot
claim that a person who would otherwise have a right to photograph the building is precluded from using that picture because
the sign also appears on the picture. The fact that such a use of plaintiff's name may cause acute annoyance cannot, it was said,
give rise to an action under the statute unless it fairly falls within the terms of the statute.
It was held in Stillman v Paramount Pictures Corp. (1956) 2 App Div 2d 18, 153 NYS2d 190, affd 5 NYS2d 994, 184 NYS2d
856, 157 NE2d 728, that where the defendants produced a fictional motion picture in which one of the principal characters utters
words to the effect that he could go to "Stillman's Gym and get a punch–drunk fighter," the reference to plaintiff, the owner of
a gymnasium with a worldwide reputation, was so incidental and momentary as not to constitute a violation of the statute.
Stating that a mere incidental commercial use of a person's name or photograph is not actionable under the New York statute,
the court in Moglen v Varsity Pajamas, Inc. (1961) 13 App Div 2d 114, 213 NYS2d 999, held that no invasion of plaintiff's
right of privacy occurred where a newspaper article reporting plaintiff's loss of a tennis match was partly reproduced, together
with other articles, as a patchwork pattern in a fabric which defendants manufactured and sold for use in underwear, pajamas,
and play togs. The court held that such use did not meet the requirement of a meaningful or purposeful use of a name, since
the pattern of the newspaper page as a patch in the fabric was only incidental to the design of the fabric and the appearance of
plaintiff's name in the article was an even more casual and incidental use.
In an action charging the unauthorized use of the name of the plaintiff's theater in a motion picture produced by the defendants,
it was held in Shubert v Columbia Pictures Corp. (1947) 189 Misc 734, 72 NYS2d 851, affd without op 274 App Div 751, 80
NYS2d 724, app den 274 App Div 80, 83 NYS2d 233, that the fact that the personal name of one plaintiff had been used in
the press–book synopsis of the picture was merely incidental, and did not constitute a use for advertising purposes or purposes
of trade within the terms of the New York privacy statute, the court pointing out that nowhere in the motion picture itself was
either of the plaintiffs mentioned or their names suggested, and concluding that the incidental and inconsequential manner in
which it was used in the press book issued to exhibitors did not give rise to a cause of action.
Wallach v Bacharach (1948) 192 Misc 979, 80 NYS2d 37, affd without op 274 App Div 919, 84 NYS2d 894, was an action
based upon an advertisement, in a form said by the court to be increasingly frequent, in which there appeared, in space paid for
by the advertiser and in addition to matter related to the advertiser's product or business, entirely independent matter designed
to attract attention to the advertising matter but consisting of commentary or news reports wholly unrelated to the product or
business. The court pointed out that it was well established that every incidental mention of the person's name in connection with
advertising or trade did not constitute a violation of the provisions of the statute, and concluded that, having regard to the history
of the enactment of the statute, its caption, and the propriety, in the light of its penal consequences of giving a strict construction,

it could not be said that it was the intention of the legislature to prohibit the mention, otherwise lawful, of a person's name in
a commentary or news report unrelated to advertising, merely because such news or commentary appeared in paid advertising
space and in physical juxtaposition to the advertising matter. 9
But see Schneiderman v New York Post Corp. (1961) 31 Misc 2d 697, 220 NYS2d 1008, where it is said that although a
single publication of an alleged news item might possibly take on the posture of "an incidental publishing," the reprint in an
advertisement story of an item telling of plaintiffs' recent marriage after meeting at a country club would exemplify an effort
toward and inducing readers to patronize the named club.
See also the cases in § 22, infra, holding that an advertisement of published material which in itself does not violate plaintiff's
privacy does not constitute an actionable invasion, since it is merely incidental to the original publication.
Cases:
Record company and recording artists' use of name of professional actress in song fell within incidental use exception to liability
under New York's right of privacy statute, where name of actress was mentioned one time in only one of 104 lines of song, name
was not used in song's title or refrain, and it appeared entirely incidental to theme of song. N.Y.McKinney's Civil Rights
Law §§ 50, 51. Lohan v. Perez, 924 F. Supp. 2d 447 (E.D. N.Y. 2013).
See Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996), § 20[a].
Use of professional golfer's name and videotaped footage of his teeing off and walking up fairway when he made hole-in-one
was not insignificant in advertising of hole-in-one fundraising services, and thus, the incidental use doctrine was not defense
to golfer's invasion of publicity claim, where the ad for the fundraising services would not have been very attractive to golfers
unless it included the name and footage of a person such as the golfer who had won a million dollars while participating in such
a fundraising event. Pooley v. National Hole-In-One Ass'n, 89 F. Supp. 2d 1108 (D. Ariz. 2000).
Publisher could invoke incidental use privilege on plaintiff's misappropriation claim arising out of advertisement promoting
sale of book containing analysis of plaintiff's conspiracy theories about presidential assassination, where advertisement used
plaintiff's name and photograph to indicate nature of contents of book. Lane v. Random House, Inc., 985 F. Supp. 141, 23
Media L. Rep. (BNA) 1385 (D.D.C. 1995).
See Stern v Delphi Internet Servs. Corp. (1995) 165 Misc 2d 21, 626 NYS2d 694, 23 Media L R 1789, § 21[a].
Brief, non–defamatory, fictionalized account using name of plaintiff, Israeli athlete, in promotion of book about victimization
of Israeli Olympic team by Arab terrorists at Munich Olympic games was insufficient to support cause of action for statutory
invasion of privacy. Ladany v William Morrow & Co. (1978, SD NY) 465 F Supp 870 (applying New York law).
In action by plaintiff–author of book on assassination of John Kennedy who asserted state–law publicity claim against author
and publisher of second book on same topic, and newspaper that ran advertisement for second book, court did not err in granting
summary judgment in favor of defendants where second book was critical of plaintiff–author's conspiracy theory, as advocated
in his book, where advertisement for second book featured name and photograph of plaintiff–author as well as quote from

his book, where advertisement did not misrepresent quality and content of plaintiff–author's book, and where use of plaintiff–
author's name and likeness, and quote from his book, had to be considered nonactionable incidental use under applicable statute.
Groden v Random House (1995, CA2 NY) 61 F3d 1045, 23 Media L R 2203, 35 USPQ2d 1547, 1995-2 CCH Trade Cases
¶ 71073 (applying New York law).
Use of medical resident's photograph in hospital's recruiting brochure was incidental to main purpose of document, i.e., to
provide information about hospital's programs to prospective interns and residents, and thus, resident failed to establish cause
of action for unauthorized use of photograph under New York law. photograph. N.Y. McKinney's Civil Rights Law §§ 50,
51. D'Andrea v. Rafla-Demetrious, 146 F.3d 63 (2d Cir. 1998) (applying New York law).
Where the use of a person's picture is "fleeting and incidental," it will not be actionable as a nonconsensual use of that person's
picture for the purpose of advertising. McKinney's Civil Rights Law §§ 50, 51. Doe v. Darien Lake Theme Park &
Camping Resort, Inc., 715 N.Y.S.2d 825 (App. Div. 4th Dep't 2000).
See Marks v Elephant Walk, Inc. (1989, 2d Dept) 156 App Div 2d 432, 548 NYS2d 549, 17 Media L R 1612, § 20[b].
In action for invasion of privacy brought by Hispanic community activist against weekly newspaper which distributed
subscription–soliciting advertisement containing reproduction of cover of one of earlier editions which featured picture of
smiling plaintiff, defendant's motion for summary judgment dismissing complaint was granted on appeal where incidental use
in advertisement by news disseminator of plaintiff's photograph did not violate right of privacy since defendant had previously
published item as matter of public interest and therefore was entitled to demonstrate overall quality and content of its work
by exhibiting reproductions of original publication; incidental use exemption might be lost if advertisement were to convey
or reasonably suggest subject's indorsement of publication in question, but in instant case, in which cartoon balloon appeared
asking "What's your address?" advertisement was, as matter of law, obviously satiric or hyperbolic and did not constitute implied
indorsement. Velez v VV Pub. Corp. (1988, 1st Dept) 135 App Div 2d 47, 524 NYS2d 186, 14 Media L R 2290, app den 72
NY2d 808, 533 NYS2d 57, 529 NE2d 425.
Use on cover of book of excerpt from book review comparing book with plaintiff's literary style did not amount to commercial
exploitation of plaintiff's name. Rand v Hearst Corp. 31 App Div 2d 406, 298 NYS2d 405, affd 26 NY2d 806, 309 NYS2d
348, 257 NE2d 895.
Mere incidental use of person's name or likeness is not actionable under "right of publicity"; in invasion of privacy action by
1956 and 1960 Olympic gold medalist in weightlifting arising out of defendants' use of his name and likeness on series of
promotional, disposable drinking cups, court did not err in entering summary judgment in favor of defendants where mention of
medalist's name, and those of other former Olympic athletes, within context of accurate, historical information was incidental
to promotion of cups by partnership between one of defendants and United States Olympic Committee; reference to athletes
and their accomplishments was purely informational, and there was no implication that athletes used, supported, or promoted
product. Vinci v American Can Co. (1990, Cuyahoga Co) 69 Ohio App 3d 727, 591 NE2d 793.
Movie entitled "Ginger and Fred" directed by Federico Fellini about Italian dance team who considered themselves to be like
Ginger Rogers and Fred Astaire did not invade plaintiff's privacy, where plaintiff's name was not used for publicity, movie was
wholly unrelated to real–life plaintiff, and state statute did not recognize cause of action of being placed in false light when
person portrayed in movie did not refer to plaintiff in any way. Rogers v Grimaldi (1989, CA2 NY) 875 F2d 994, 16 Media
L R 1648, 10 USPQ2d 1825 (applying Oregon law).

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§ 8. Effect of presence or absence of malice
Few courts have concerned themselves with the question of whether malice is an essential element of the tort here under
consideration—that is, invasion of privacy.
However, upon setting aside a judgment for the plaintiff in an action under the New York statute, wherein it was alleged that
an article in the defendant's magazine falsely reported that a new play portrayed an experience suffered by plaintiff and his
family, wherein the court below had said, as to liability, that such article was published to advertise the play and to increase
circulation of the defendant magazine, the United States Supreme Court in Time, Inc. v Hill (1967) 385 US 374, 17 L Ed
2d 456, 87 S Ct 534, held that the constitutional protection of free speech and press precluded the application of the statute to
redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge
of its falsity or in reckless disregard of the truth.
While there is some authority that lack of malice is completely immaterial with respect to liability, 10 the absence of malice,
like the presence of actual consent (in the absence of technical written consent), may have an effect on the amount of damages
that may be recovered.
In Peck v Tribune Co. (1907, CA7 Ill) 154 F 330, revd on other grounds 214 US 185, 53 L Ed 960, 29 S Ct 554,
defendant published in its newspaper an advertisement for "Duffy's Pure Malt Whiskey" in which there appeared a picture and
the statement, in connection with the picture, that Mrs. Schuman indorsed the use of such product. It appeared that the picture
in the advertisement was that of plaintiff, and not that of Mrs. Schuman. The court held that defendant, as printer and distributor
of advertising matter, could not be presumed to have the malice which might be inferred from the publication if the matter had
been printed as a news item. There having been no request for the allowance of nominal damages in the trial court, the court
said that the case would not be reversed for failure to make such an award.
Although the court does not refer specifically to malice, attention is also called to Cabaniss v Hipsley (1966) 114 Ga App 367,
151 SE2d 496, where it was held that if, as a result of mere negligence, the defendant "Playboy Club" delivered a photograph of
plaintiff, an "exotic dancer" who had appeared at other clubs but not at the defendant's establishment, for use in an advertisement
for the club in a weekly magazine, an award of punitive damages would not be justified. The court went on to state that if,
however, on another trial the jury should find that there was an unauthorized appropriation of plaintiff's photograph and that
defendant's acts and conduct were of a character to import a premediated, or conscious and deliberate continuation of the
appropriation, an award of punitive damages would be authorized.

Where the defendants sold plaintiff's photograph in good faith and in the honest belief that it was the photograph of another
female, from whom they had obtained for a consideration a release to sell it, and in the absence of proof that defendants
knowingly used plaintiff's picture, it was held in Emanuel v Free Lance Photographers Guild, Inc. (1960) 28 Misc 2d 503, 219
NYS2d 626, that no exemplary damages could be awarded.
An alleged defense to suit based on the New York privacy statute and for libel that an author's use, as a pen name in writing
a book which was published and advertised by defendants, of a name identical to plaintiff's, was accidental and coincidental
was held in MacIver v George Braziller, Inc. (1961) 32 Misc 2d 477, 224 NYS2d 364, to be available as a partial defense
manifesting lack of malice.
Thus, it was said in Fullerton v Kennedy (1959, 19 Misc 2d 502, 187 NYS2d 213, that in the absence of any showing of malice,
one whose name has been wrongfully used cannot recover exemplary damages.
And see Flake v Greensboro News Co. (1938) 212 NC 780, 195 SE 55, wherein it was held that the use of a picture in an
advertisement by mistake and without malice entitled plaintiff to recover only nominal damages for violation of her right of
privacy, especially in view of the fact that the publisher apologized publicly upon discovery of the mistake and there was no
proof of special damages.
Cases:
See Tooley v Canal Motors, Inc. (La App) 296 So 2d 453, § 20[a].
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[END OF SUPPLEMENT]
B. Consent and Waiver
§ 9[a] Consent as precluding right of action—Generally
This section has been superseded by the following article(s):
Superseded by 13 A.L.R.7th Art. 4
§ 9[b] Consent as precluding right of action —Under New York statute
§ 10[a] Scope of consent—Consent held exceeded

§ 10[b] Scope of consent—Consent held not exceeded
§ 11[a] Duration of consent—Effect of termination of employment
§ 11[b] Duration of consent—Effect of lapse of time or revocation
§ 12[a] Special rules as to public personages—Right of privacy held waived
§ 12[b] Special rules as to public personages—Right of privacy held not waived
III. Particular uses of plaintiff's name or likeness as constituting invasion of privacy
§ 13. Purported indorsement of product or services
§ 14. Use of name on product

An actionable invasion of privacy may occur where defendant uses plaintiff's name to identify or promote a product marketed
by defendant.
Thus, in Edison v Edison Polyform & Mfg. Co. (1907) 73 NJ Eq 136, 67 A 392, it was held that Edison, the famous inventor,
was entitled to an injunction to restrain a corporation from printing on the labels of a medicinal preparation the figure of the
plaintiff together with a false certificate, purporting to be made by the plaintiff, that the preparation was compounded according
to a formula devised and used by the plaintiff.
In an action by a dress designer, Ginette Jaccard, who had been engaged in business under the assumed name of "Ginette De
Paris," against one who used the name "Ginette De Paris" in connection with the sale of patterns of a dress designed by the
plaintiff, it was held in Jaccard v R. H. Macy & Co. (1942) 265 App Div 15, 37 NYS2d 570, affg 176 Misc 88, 26 NYS2d
829, that since the dress in question had been placed in the public domain without the protection of copyright, a person rightfully
copying the dress and selling patterns thereof had the right to state truthfully that the dress was designed by the plaintiff, and
that no recovery could be had for the use of plaintiff's name in a magazine article advertising a pattern of the dress, even if her
true name, rather than an assumed business name, had been used.
In Eliot v Jones (1910) 66 Misc 95, 120 NYS 989, affd without op 140 App Div 911, 125 NYS 1119, Dr. Eliot, the editor of
books known and advertised as "The Harvard Classics" and as "Dr. Eliot's Five–Foot Shelf of Books," was held to be entitled to
an injunction to restrain the defendants from carrying out their advertised intention to publish a cheaper edition of books under
the title "Dr. Eliot's Famous Five–Foot Shelf of the World's Greatest Books," and "Dr. Eliot's Five–Foot Shelf," the action being
predicated upon the New York privacy statute. 19
And see Orsini v Eastern Wine Corp. (1947) 190 Misc 235, 73 NYS2d 426, affd 273 App Div 947, 78 NYS2d 224, supra
§ 6, app den 273 App Div 996, 79 NYS2d 870, wherein it was alleged that defendant had affixed plaintiff's surname and coat
of arms to the labels of wine products.
Attention is also called to Prest v Stein (1936) 220 Wis 354, 265 NW 85, not involving an action to recover for an invasion of
the right of privacy, but a suit by a competitor to enjoin the defendant from selling cigars known as the "Franklin D. Roosevelt"
cigar, on the ground that such sales constituted an unfair trade practice. The court said: "At common law, the use of the name
and photograph of another for advertising purposes was not unlawful..… Apparently there is no Federal statute securing to an
individual the right to the exclusive use of his name and photograph. Wisconsin has no such statute. In the absence of such a
statute, it was not unlawful for the defendant to use the name and portrait of the President for advertising purposes. The fact
that it is in poor taste and shocks our sense of propriety that the name and portrait of the Chief Magistrate of the nation should
be so used does not make it illegal and unlawful."
Cases:
In action by exclusive licensee, entertainers, and musical groups against manufacturers of shirts imprinted with names and
likenesses of entertainers and musical groups, produced without licenses, brought under right to publicity and Lanham Act,
trial court property issued preliminary injunction against their manufacture, distribution, and sale of shirts, where entertainers
and musical groups had right of publicity, as one of species of right of privacy, to have sole right to commercially exploit their
names and likenesses and to transfer that right to licensee, where defendants' unauthorized and unprivileged printing on shirts

of names, trademarks and/or likenesses of entertainers and groups was violation of such right, and where First Amendment
privilege, which is not license to trammel on legally recognized rights in intellectual property, did not extend to distribution of
shirts. Winterland Concessions Co. v Sileo (1981, ND Ill) 528 F Supp 1201, 213 USPQ 813, affd in part and revd in part on
other gnds (CA7 Ill) 735 F2d 257, 1984–1 CCH Trade Cases ¶ 66006 and affd without op (CA7 Ill) 830 F2d 195.
Publicity rights statute makes liable any person who, without consent, uses a deceased personality's name, voice, signature,
photograph, or likeness either (1) on or in a product, or (2) in advertising or selling a product. West's Ann. Cal. Civ. Code § 990
(1998). Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 106 Cal. Rptr. 2d 126, 21 P.3d 797 (2001).
Economic loss rule (ELR) did not bar model's cause of action for unauthorized use of his likeness in advertisements directed
to homosexuals with Acquired Immune Deficiency Syndrome (AIDS), as statute allowed action to recover damages for "any
loss or injury." West's F.S.A. § 540.08. Facchina v. Mutual Benefits Corp., 735 So. 2d 499, 27 Media L. Rep. (BNA) 2168
(Fla. Dist. Ct. App. 4th Dist. 1999).
Artist who sold his signed cartoon to magazine could not object to magazine's making and selling dolls truthfully advertised as
based on cartoon. Geisel v Poynter Products, Inc. (DC NY) 295 F Supp 331 (applying New York law).
Famous former baseball player stated claim that his right to privacy under New York statute was violated, when manufacturer
of baseball memorabilia featuring his name, likeness and facsimile signature continued to distribute items after player withdrew
his consent. N.Y.McKinney's Civil Rights Law §§ 50, 51. Ryan v. Volpone Stamp Co., Inc., 107 F. Supp. 2d 369
(S.D.N.Y. 2000) (applying New York law).
See Vinci v American Can Co. (1990, Cuyahoga Co) 69 Ohio App 3d 727, 591 NE2d 793, § 7.
In action for unauthorized use of plaintiff's nickname on shaving gel, trial court erred in ruling that cause of action existed
for commercial misappropriation of individual's name, notwithstanding that invasion of privacy was not generally recognized
by Wisconsin common law, since use of plaintiff's name constituted tort of appropriation which is distinct from other torts
involving right of privacy. Hirsch v S. C. Johnson & Son, Inc. (1979) 90 Wis 2d 379, 280 NW2d 129.
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§ 15. Use of name as part of corporate name
In the following cases, the courts have dealt with the question as to whether an invasion of privacy occurs when defendant uses
plaintiff's name as part of its corporate designation.
But an individual who consents to the use of his surname in the tradename of a corporation waives his right of privacy with
respect to his name and cannot recover against the corporation for its use thereof. Tanner-Brice Co. v Sims (1931) 174 Ga
13, 161 SE 819.

In Edison v Edison Polyform & Mfg. Co. (1907) 73 NJ Eq 136, 67 A 392, supra § 14, the inventor, Thomas Edison, was
held entitled to an injunction to restrain a corporation from using his name as part of the defendant's corporate name without
his authority.
Similarly, a person who, after having been engaged in business in his own name, formed a corporation bearing his own name,
transferred to it his stock and good will, and continued the business in the name of the corporation, was held not entitled to the
benefits of the New York privacy statute, since, by his own voluntary act, he gave the corporation his name and the right to use
it. White v William G. White, Inc. (1914) 160 App Div 709, 145 NYS 743.
And where the two sole stockholders of "Bernham–Stein Furs, Inc." agreed that the use of the corporate name would cease
when either stockholder sold his interest in the corporation, it was held in Bernham v Bernham-Stein Furs, Inc. (1953, Sup)
123 NYS2d 872, that when the defendant nevertheless continued to use the corporate name after plaintiff (Bernham) sold his
interest to another, the corporation's use of plaintiff's name was in violation of the New York statute and would be restrained.
§ 16. Misrepresenting plaintiff's authorship or statements
In a number of cases liability has been based on the fact that defendant, in an attempt to promote some business enterprise,
made use of plaintiff's name in such a manner or in such context that plaintiff's authorship of an article or statements attributed
to him were misrepresented.
In Sperry Rand Corp. v Hill (1966, CA1 Mass) 356 F2d 181, 23 ALR3d 853, cert den 384 US 973, 16 L Ed 2d 683, 86 S Ct 1859,
plaintiff physician sought to recover under the New York privacy statute for the use of his name in a medical magazine on the
following grounds: Defendant, a manufacturer of electric shavers, was approached by a specialist in "medical public relations,"
who stated that a "pilot study" had shown defendant's shaver to be better for the skin than other shavers or razors, and proposed
that defendant finance a medical research project which could be used to advertise defendant's shaver. When the defendant
agreed, the specialist in "medical public relations" entered into an agreement with a certain dermatologist, under which the latter
would arrange to collaborate with two other dermatologists, one of whom was plaintiff, to prepare such a study. In fact, plaintiff
never participated in the study, and the jury also found that he did not consent to the use of his name in connection with the study.
When the results of the study were published in a medical magazine, one of the authors was stated to be plaintiff. Thereafter,
defendant ran newspaper and national magazine advertisements referring to a "dermatologists' report" which had been written
by three supposedly prominent physicians (not mentioning their names) and inviting doctors to write for reprints of the study
in which plaintiff's name appeared as author. While recognizing that an action would lie under the New York statute for using
the name of one as author of an article when he had not been the author thereof, the court held that plaintiff was estopped to
deny his authorship where, although he had seen the advertisements which appeared in Massachusetts newspapers before any
national advertising appeared, he delayed notifying defendant for 5 months and allowed it reasonably to entertain the belief that
since plaintiff's name appeared on the article, he had in fact written it. The court also held that defendant was not constructively
notified of any knowledge which the "medical public relations" specialist may have had as to the true authorship of the article.
Thus, plaintiff in Manger v Kree Institute of Electrolysis, Inc. (1956, CA2 NY) 233 F2d 5, won a contest sponsored by
defendant in which prizes were awarded to practicing electrologists who wrote the best letters on "Why I Am Glad I Chose
Electrolysis as a Career." After plaintiff had given her written consent to the publication of the winning letter in a magazine
published by defendant, defendant changed the statement in her letter that she found "the excellent and rapid Radio 'Short–Wave'
equipment fascinating" so as to read "rapid Radiomatic (Short–Wave)," a reference to specific equipment sold by the defendant.

The publication of the altered letter, without her consent to the alteration, accompanied by a picture of plaintiff, was held to be
a violation of the New York statute prohibiting the use of a person's name for advertising purposes without his consent.
See also Kerby v Hal Roach Studios (1942) 53 Cal App 2d 207, 127 P2d 577, infra § 20[a] where defendant, as an advertising
"gimmick" to promote a motion picture, sent out letters "signed" by a feminine character in the motion picture. Plaintiff, who
had the same name, recovered on the ground that the defendant invaded her privacy by giving the impression that she was the
author of a suggestive letter.
But the mere publication of a false and sensational story, falsely purporting to have been written by the plaintiff, a well–known
traveler and newspaper correspondent, which tended to hold him up to ridicule and contempt, was held not to be a use of
the plaintiff's name for purposes of advertising or trade, within the New York privacy statute, although it did constitute libel.
D'Altomonte v New York Herald Co. (1913) 208 NY 596, 102 NE 1101, modg 154 App Div 453, 139 NYS 200.
And see Brociner v Radio Wire Television, Inc. (1959) 15 Misc 2d 843, 183 NYS2d 743, wherein a complaint stating that
plaintiff was in a contractual relasionship with the defendant and designed certain devices for it and alleging that defendant, in
its advertising, which named the plaintiff as the designer of the devices, advertised the products in such a manner as to suggest
to the general public that they possessed qualities that they did not actually have, was held not to state a cause of action for use
of plaintiff's name for purposes of trade without his consent.
A cause of action for invasion of privacy under the New York statute was held to be stated in Ravich v Kling (1959) 17 Misc
2d 683, 187 NYS2d 272, where the complaint alleged that plaintiff, a physician, prepared a research paper on the development
of a certain substance; that defendants made modifications in the paper, substituting a substance upon which plaintiff did not
conduct research and upon which defendants owned a patent for the substance originally described; and that defendants caused
the article as modified, and falsely bearing plaintiff's name as its author, to be published in a medical journal and distributed for
advertising and trade purposes in connection with the substance upon which the defendants had a patent.
In Thompson v G. P. Putnam's Sons (1963) 40 Misc 2d 608, 243 NYS2d 652, it was held that a claim under the New York
statute wss sufficient as against a motion to dismiss where plaintiff alleged that the edition of "Memoirs of a Woman of
Pleasure" ("Fanny Hill") published by defendant contained an introduction and note which were intended to increase sales of
the book by making it appear to be a work of recognized literary merit and containing language implying that plaintiff, as a
literary critic, regarded the book as a work having literary merit, whereas his true opinion was that the book was tedious and
bewilderingly pornographic.
Cases:
In action by employee of telephone company who alleged that company invaded her privacy when, without employee's consent,
it ran advertisement in publicly circulated newspapers displaying employee's name and photograph along with text, falsely
attributed to employee, that praised company, court erred in entering judgment notwithstanding verdict against employee where
use of employee's photograph along with false text was not merely indidental use that would not support action for invasion
of privacy, where fact that employee was not famous did not mean she could not recover upon showing of harm to herself and
benefit to company, and where there was sufficient evidence to support jury's decision that employee had made this showing.
Staruski v Continental Tel. Co. (1990, Vt) 581 A2d 266.

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§ 17. Alteration of picture
An actionable invasion of privacy may occur where the defendant, although he has plaintiff's consent to use the latter's picture,
makes a substantial change or alteration in the picture he publishes.
And see Loftus v Greenwich Lithographing Co. (1920) 192 App Div 251, 182 NYS 428, supra § 6, holding that the use
of plaintiff's photograph, slightly altered, to advertise a motion picture with which plaintiff had no connection, constituted an
invasion of privacy.
But in Dahl v Columbia Pictures Corp. (1957) 12 Misc 2d 574, 166 NYS 2d 708, affd 7 App Div 2d 969, 183 NYS2d 992, it
was held that where a motion–picture actress had consented to the use of her picture to advertise a film, she could not recover
where sketches made for advertising purposes gave an exaggerated impression of the character she portrayed in the film as wild
and sexually promiscuous, as long as the advertising was in accord with industry standards.
Thus, a professional model who signed a release by which she consented to the unrestricted use of her picture by the photographer
and his clients and waived all rights to approve its use was held in Russell v Marboro Books (1959) 18 Misc 2d 166,
183 NYS2d 8, to have a cause of action for invasion of privacy where the picture was so altered and distorted for use in
an advertisement as to humiliate plaintiff and expose her to the hazard of loss of earnings. It appeared that plaintiff, a well–
known highfashion model posed for a highly respected fashion photographer for an advertisement, to appear in one issue of the
New York Times, on behalf of a bookstore, the picture showing plaintiff and a male model in adjoining beds, each reading an
educational book, above a caption such as "For people who take their reading seriously." It was further alleged that the bookstore
later falsely represented to the photographer that it required the negative of the picture, and that it then sold the negative to a
bedsheet manufacturer which so altered the picture that it appeared in an advertisement for bedsheets giving the impression that
plaintiff was portraying a willing call girl waiting to be used by a stranger whetting his sexual appetite. In an action against the
bookstore, the bedsheet manufacturer, and the publishers of the magazines in which such advertisements appeared, it was held
that a cause of action for invasion of privacy was stated against the bedsheet manufacturer and the magazine publishers, as well
as against the bookstore as contributing tortfeasors to the wrong allegedly done the plaintiff by the bedsheet manufacturer.
See Sinclair v Postal Tel. & Cable Co. (1935, Sup) 72 NYS2d 841, restraining the use of an actor's photograph to advertise
a picture in which he appeared, on the ground that the original picture, for the use of which the plaintiff consented, had been
altered so as to present him in an undignified light.
Cases:
See Motschenbacher v R. J. Reynolds Tobacco Co. (CA9 Cal) 498 F2d 821, (citing annotation) § 6.

Use of professional model's picture, originally posed with cigarette and making V–sign with his fingers, so that one finger
was air–brushed out, leaving him looking as though he was making obscene gesture, was not actionable where caption clearly
indicated that photograph had been retouched. Byrd v Hustler Magazine, Inc. (1983, Fla App D4) 433 So 2d 593, petition den
(Fla) 443 So 2d 979.
See Grant v Esquire, Inc. (DC NY) 367 F Supp 876 (applying New York law), § 21[b].
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[END OF SUPPLEMENT]
§ 18. Mistaken use of picture
An actionable invasion of privacy may occur where defendant uses plaintiff's picture in its advertising by mistake.
See also Colgate-Palmolive Co. v Tullos (1955, CA5 Ga) 219 F2d 617, supra § 11[a], where defendant, after discharging
plaintiff, continued to use her picture in advertisements for its service of advising women on hair coloring, but used the name
of another employee in connection with such picture. The court held that plaintiff's right of privacy had been invaded, since
defendant's right to use her picture terminated when defendant terminated her employment.
In Peck v Tribune Co. (1907, CA7 Ill) 154 F 330, revd on other grounds 214 US 185, 53 L Ed 960, 29 S Ct 554, defendant
published in its newspaper an advertisement for "Duffy's Pure Malt Whiskey" and stated that the use of this product was indorsed
by "Mrs. Schuman," but in connection with this statement used a picture of plaintiff, who was not Mrs. Schuman. Recovery
was denied however, on the ground that defendant, as printer and distributor of the advertising material, would not be presumed
to have the malice which might be inferred from the publication if the matter had been printed as a news item.
The plaintiff in Cabaniss v Hipsley (1966) 114 Ga App 367, 151 SE2d 496, was an exotic dancer or stripteaser who had
had her picture taken in a revealing pose for the purpose of advertising herself and her act in various nightclubs under the
stage names of "Melanie Lark" and "Charming Charmaine De Aire." In some unknown manner, the defendant "Playboy Club"
obtained a copy of this picture and had it published in its advertisement in a weekly magazine in conjunction with the language:
"Dawn Darling—Provocative and Exciting Exotic Dancer." It appeared that "Dawn Darling" was the stage name of another girl
who was appearing at the "Playboy Club," and that plaintiff had never appeared there. While stating that the evidence did not
authorize a verdict for the invasion of privacy on the theory of public disclosure of embarrassing private facts about plaintiff
inasmuch as the photograph was not one which she wished to keep private or secret, it not being embarrassing or objectionable to
her, since she had sought and consented to the type of publicity which she received, the court remanded the case for a new trial,
holding that if the jury should find that there was an unauthorized appropriation of plaintiff's photograph and that defendant's
acts and conduct were of a character to import a premediated or conscious and deliberate continuation of the appropriation,
then an award of punitive damages would be authorized.
And see Emanuel v Free Lance Photographers Guild, Inc. (1960) 28 Misc 2d 503, 219 NYS2d 626, supra § 8, holding that
exemplary damages could not be recovered where a photograph was mistakenly sold as that of another female.
In Flake v Greensboro News Co. (1938) 212 NC 780, 195 SE 55, plaintiff's photograph was used, without her consent, in
a newspaper advertisement which identified the photograph as being a picture of a different person. The photograph, which
showed plaintiff in a bathing suit, was used in an advertisement which stated: "Keep that sylphlike figure by eating more of Melt's
rye and whole wheat bread, says Mlle. Sally Payne [not the plaintiff] exotic red haired Venus." There also appeared language

in the advertisement to the effect that "Mlle. Payne" was appearing in a local vaudeville show which, plaintiff alleged, was a
sensual performance using the cheapest class of chorus girls. Plaintiff had posed for the published photographs in connection
with publicity arranged for by her employer, the Columbia Broadcasting System, the picture being used by the newspaper by
mistake. The court held that where the picture was used by mistake and without malice and where the publisher apologized
publicly upon discovery of the mistake, plaintiff, in the absence of proof of special damages, was entitled to recover only
nominal damages for violation of her right of privacy.
§ 19. Use of name or likeness to increase circulation of publication
The New York statute which makes the use of a person's name or picture without his consent actionable if such use is for
"advertising purposes" or for "purposes of trade" 20 has been applied to cases which can be said to involve a kind of advertising
in that the reason for publishing plaintiff's picture or using his name in an article was to increase the circulation of a certain
publication.
Thus, a complaint alleging that plaintiff's picture was used without her consent in connection with an article on dope peddling
with which plaintiff had no connection and that such publication was for the purpose of increasing the circulation of the
defendant's magazine was held in Thompson v Close-Up, Inc. (1950) 277 App Div 848, 98 NYS2d 300, affg 197 Misc 921,
99 NYS2d 864, to state a cause of action under the New York statute.
However, the use of a professional boxer's picture on a magazine cover in conjunction with the statement "Tycoon—This man
can make $25,000 on a single deal, but it might cost him his life. Why?" and there was reference to an article inside which was
critical of professional boxing, but did not refer specifically to plaintiff, was held in Oma v Hillman Periodicals, Inc. (1953)
281 App Div 240, 118 NYS2d 720, not to be in violation of plaintiff's right to privacy, although the manner of the use and the
placement of the picture were designed to sell the article and the magazine.
Attention is also called to Hill v Hayes (1963) 18 App Div 2d 485, 240 NYS2d 286, later app 15 NY2d 986, 260 NYS 2d
7, 207 NE2d 604, remittitur amd 16 NY2d 658, 261 NYS2d 289, 209 NE2d 282, remittitur amd further, 20 NY2d 738, 283
NYS2d 101, 229 NE2d 698 (set aside in Time v Hill, 385 US 374, 17 L. Ed. 2d 456, 87 S Ct 534), where it was held that the
defendant, who had published an article in "Life" magazine under the heading "True Crime Inspires Tense Play," stating that a
play to be presented on Broadway was based on true events involving plaintiff, infringed plaintiff's right of privacy, since the
purpose of the article was to increase magazine circulation and to advertise the play. 1
See also Lahiri v Daily Mirror, Inc. (1937) 162 Misc 776, 295 NYS 382, supra § 4[a], where it was suggested that if a photograph
used in a newspaper article has so tenuous a connection with a news item that it can be said to have no legitimate relation to it,
then it can be said to have been used for the purpose of promoting the sale of the publication.
The use, without the consent of her parents, of a minor girl's photograph in a negligee to illustrate a risque story, was held, in
Semler v Ultem Publications (1938) 170 Misc 551, 9 NYS2d 319, to be for "purposes of trade" under the New York statute,
the court noting that it appeared from the evidence that it was the pictures of partly draped women appearing in the magazine
that sold the magazine, as well as the stories.

The fact that an article was published to increase circulation of a publication was also considered in one case arising outside
New York.
Thus, an allegation that the publisher of the magazine "Startling Detective," 2 years after the homicide trial of the plaintiff, an
automobile stunt driver, published an article concerning the trial, not for the purpose of giving the public genuine information,
but to fictionalize the story and to increase magazine circulation, was held in Hazlitt v Fawcett Publications, Inc. (1953, DC
Conn) 116 F Supp 538 (applying Oklahoma law), to allege a cause of action for invasion of privacy.
Cases:
The state law right of holders of a copyright, on a videotape showing them engaging in sexual intercourse, to exploit their
names and likenesses for commercial gain, was not preempted by the Copyright Act; the holders alleged that the possessor of a
videotape used the names, likenesses and identities of the holders on radio, television and the Internet to advertise the imminent
distribution of the tape on the Internet, a type of activity not regulated by the Copyright Act. 17 U.S.C.A. § 301(a). Michaels
v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823, 46 U.S.P.Q.2d (BNA) 1892 (C.D. Cal. 1998).
Use of celebrity's picture along with copy falsely implying that she had endorsed defendant magazine ("Join Cher and FORUM's
hundreds of thousands of other adventurous readers today") constituted actionable appropriation of celebrity's right of publicity.
Cher v Forum International, Ltd. (1982, CA9 Cal) 692 F2d 634, 8 Media L R 2484, 217 USPQ 407, cert den 462 US 1120,
77 L Ed 2d 1350, 103 S Ct 3089 (applying Cal law).
In action by entertainer against publication based on its unauthorized use of plaintiff's name, photograph, and likeness on its
cover and in related telecast advertisements in connection with nondefamatory articles false but presented as true, trial court
erred in sustaining, without leave to amend, demurrer to cause of action alleging commercial appropriation of right of publicity,
where alleged use constituted commercial exploitation, and where it was not exempt from liability as news account and was not
privileged or protected by constitutional considerations. Eastwood v Superior Court (1983, 2d Dist) 149 Cal App 3d 409,
198 Cal Rptr 342, 10 Media L R 1073.
Motion picture and accompanying promotion and advertising were not, in and of themselves, "commercial purpose," and thus
use of names and likenesses of individuals in motion picture without their consent or consent of their survivors did not violate
Florida statute prohibiting unauthorized use of person's name or likeness for commercial purposes, even though picture grossed
more than $150 million, absent evidence that names and likenesses were used to directly promote picture. West's F.S.A. § 540.08.
Tyne ex rel. Tyne v. Time Warner Entertainment Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002) (applying Florida law).
In action against author seeking injunctive relief and damages for alleged unauthorized publication for commercial purposes of
name and likeness of plaintiffs' deceased husband and father, plaintiffs, who complained about attention book had attracted to
them as surviving relatives, failed to state cause of action for appropriation claim under statute which proscribed use of person's
name or likeness portrayed for advertising purposes, with exception for matters having legitimate current public interest unless
publication amounts to direct advertisement, where publication which was account of plane crash in which decedent was killed
and of reports that apparitions of crew members had appeared thereafter, did not associate name or personality of decedent

with something other than book, where statute was designed to prevent use of name to directly promote product or service of
publisher and not use in matters of public interest, and where to construe statute to prohibit such publication would result in
substantial confrontation between statute and First Amendment. Loft v Fuller (1981, Fla App D4) 408 So 2d 619, petition
den (Fla) 419 So 2d 1198.
Use of plaintiff's name in advertising novel based on murder and kidnapping for ransom to which crimes plaintiff had pleaded
guilty did not invade his privacy. Leopold v Levin, 45 Ill 2d 434, 259 NE2d 250.
See Dempsey v National Enquirer (1989, DC Me) 702 F Supp 934 (applying Me law), § 4[b].
See Titan Sports, Inc. v Comics World Corp. (1989, CA2 NY) 870 F2d 85, 16 Media L R 1408, 10 USPQ2d 1311 (applying
New York law), § 4[a].
Publisher's unauthorized use of plaintiff's name, which appeared on former issue of magazine which was reproduced in
subscription advertisement, for purpose of soliciting subscriptions established actionable claim for invasion of privacy under
common law or statute. Lerman v Chuckleberry Pub., Inc. (1982, SD NY) 544 F Supp 966, 35 FR Serv 2d 1278 (applying
New York law).
Use of plaintiff's name and likeness in conjunction with sale and publication of musical compositions, though probably violation
of terms of agreement with plaintiff, did not constitute invasion of privacy in sense of plaintiff's right to be free from mental
strain and distress as well as of his interest in the commercial exploitation of his valuable name and likeness. Kamakazi
Music Corp. v Robbins Music Corp. (1982, SD NY) 534 F Supp 69, 217 USPQ 60, 34 FR Serv 2d 693 (applying New York law).
See Friedan v Friedan (DC NY) 414 F Supp 77 (applying New York law), § 22.
Use of plaintiff's photograph and name in advertisements to promote subscriptions did not violate "right of privacy" statute
where claim did not involve privacy but was for appropriation of valuable property rights in likeness and name. Namath v Sports
Illustrated, 80 Misc 2d 531, 363 NYS2d 276, affd 48 App Div 2d 487, 371 NYS2d 10.
Advertisement placed by magazine on sides of city buses, using mayor's first name and stating that magazine was the only good
thing about city for which he had not claimed credit, did not violate New York statute prohibiting use of living person's name
for trade purposes without person's written consent; advertisement fell within "incidental use" exception in conveying message
that magazine addressed issues of city politics, and it was also protected by "public use" exception because advertisement
could not mock mayor's penchant for claiming credit for city's achievements without using his name. N.Y. McKinney's Civil
Rights Law § 50. New York Magazine, Div. of Primedia Magazines, Inc. v. Metropolitan Transit Authority, 987 F. Supp.
254 (S.D.N.Y. 1997), aff'd in part, vacated in part on other grounds, 136 F.3d 123, 26 Media L. Rep. (BNA) 1301 (2d Cir.
1998), cert. denied, 119 S. Ct. 68 (U.S. 1998) (applying New York law).
In action for invasion of privacy alleging that defendant newspaper had used plaintiff's name and picture for advertising or
trade purposes in stories reporting details of matrimonial action between plaintiff and his wife, lower courts erroneously ruled
that factual issue existed as to whether defendant's primary purpose was to report on matter of public interest or merely to
promote circulation, since content of published article rather than defendant's motive to increase circulation was critical factor,

and established that publication was newsworthy item as opposed to trade usage. Freihofer v Hearst Corp. (1985) 65 NY2d
135, 490 NYS2d 735, 480 NE2d 349, 12 Media L R 1056.
Defendant did not use picture of professional model for trade or advertising purposes within meaning of state civil rights
law when, without plaintiff's consent, it published picture of him modeling "bomber jacket" in magazine article containing
information regarding approximate size of jacket, name of designer, and names of three stores where jacket might be purchased;
the terms trade or advertising purposes should not be construed to apply to publications concerning newsworthy events or matters
of public interest, and newsworthiness exception applies to news stories and articles of consumer interest including development
in the fashion world. Event or matter of public interest which defendant sought to convey was not model's performance, but
availability of clothing item displayed, and picture of jacket did not lose its newsworthiness simply because defendant chose to
employ a person to model it in controlled or contrived setting. Fact that defendant may have included this item in its column
solely or primarily to increase circulation of its magazine, and therefore its profits, did not mean that defendant had used
plaintiff's picture for trade purposes within meaning of statute; it is content of article and not defendant's motive or primary
motive to increase circulation which determines whether it is newsworthy item, as opposed to trade usage, under civil rights
law. Stephano v News Group Publications, Inc. (1984) 64 NY2d 174, 485 NYS2d 220, 474 NE2d 580, 11 Media L R 1303.
In action for libel and invasion of privacy brought by judge against newspaper which had published advertisement in
another newspaper offering subscriptions and also containing caricature of judge and statements referring to articles defendant
newspaper had published criticizing integrity of judge in performance of his duties, defendants were not entitled to summary
judgment on affirmative defenses of constitutional privilege and absence of malice, nor was plaintiff entitled to summary
judgment on defenses of truth and absence of malice. Rinaldi v Village Voice, Inc., 47 App Div 2d 180, 365 NYS2d 199, cert
den 423 US 883, 46 L Ed 2d 112, 96 S Ct 153.
Use on book cover of book review excerpt comparing book with plaintiff's literary style did not constitute invasion of privacy.
Rand v Hearst Corp. 31 App Div 2d 406, 298 NYS2d 405, affd 26 NY2d 806, 309 NYS2d 348, 257 NE2d 895.
Use of plaintiff high school student's picture to illustrate newspaper story discussing drug use in local high school was not
actionable invasion of privacy absent showing that story had, or was intended to have had, extraordinary commercial benefit
to defendants. Martinez v Democrat-Herald Pub. Co. (1983) 64 Or App 690, 669 P2d 818, 10 Media L R 1340, petition den
296 Or 120, 672 P2d 1193.
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§ 20[a] Other uses of name—Recovery allowed
In the following cases, recovery for invasion of privacy was allowed where defendants made an unauthorized use of plaintiff's
name for advertising purposes.
And see Lahr v Adell Chemical Co. (1962, CA1 Mass) 300 F2d 256, supra § 6, holding that the New York statute which is
limited to the use of a party's "name, portrait, or picture" did not apply to words spoken by an actor who allegedly imitated the
well–known and distinctive voice of the plaintiff.

In Neyland v Home Pattern Co. (1933, CA2 NY) 65 F2d 363, cert den 290 US 661, 78 L Ed 572, 54 S Ct 76, an artist was held
entitled to recover under the New York statute for the use of his name in connection with a reproduction of one of his paintings
in a magazine offering for sale patterns based upon such reproductions.
The act of a motion–picture producer, for the purpose of advertising one of its pictures, in causing to be written in feminine
handwriting and reproduced mechanically on pink stationery and mailed to a thousand men householders, a letter bearing the
plaintiff's name as the apparent signer, without the plaintiff's knowledge or consent, was held to constitute an actionable violation
of her right of privacy, although the defendant had no intent to refer to the plaintiff in using the name, and did not know of her
existence, where this could easily have been discovered, she being an actress and concert singer and the only person of that
name listed in the city directory and in the telephone directory. Kerby v Hal Roach Studios (1942) 53 Cal App 2d 207, 127
2
P2d 577. It appeared that the letter was of such nature as to cast doubt upon her moral character and to bring about a series of
highly undesirable consequences, including a large number of telephone calls and personal visits from hopeful males and irate
wives, and while the name signed to the letter in question, in addition to being that of the plaintiff, was also the name of the chief
character in two works of fiction previously published and of the chief feminine character in the motion picture being advertised,
the court took the view that the letter did refer to the plaintiff and was calculated to produce the undesirable consequences.
Palmer v Schonhorn Enterprises, Inc. (1967) 96 NJ Super 72, 232 A2d 458, was an action by well–known professional
golfers against a corporation which sold a game bearing on its cover the caption, "PRO–AM GOLF GAME.… Profiles and
playing charts of 23 famous golfers." The cover of the game box did not mention any golfer by name, but as part of the contents
there were 23 sheets of paper giving admittedly accurate facts about the playing career of 23 professional golfers, including
plaintiffs. Stating that there is little doubt that a person is entitled to relief when his name has been used without his consent,
either to advertise the defendant's product or to enhance the sale of an article, the court granted summary judgment for the
plaintiffs, holding that it is unfair that one should be permitted to commercialize or exploit another's name, reputation, or
accomplishments merely because such accomplishments have been highly publicized. The court characterized as untenable the
defendant's contention that it was not invading plaintiffs' right of privacy because the golfers' names did not appear on the lid of
the box so that a purchaser of the game would not know who the "23 famous golfers" were until after his purchase of the game.
In Canessa v J. I. Kislak, Inc. (1967) 97 NJ Super 327, 235 A2d 62, infra § 21[a], the use of plaintiff's picture, and an
accompanying article, to further defendant's real–estate business, was held an invasion of privacy.
A cause of action under New York statute was held in Flores v Mosler Safe Co. (1959) 7 NY2d 276, 196 NYS2d 975,
164 NE2d 853, to have been stated by a complaint alleging that the defendant, a manufacturer of safes and vaults, distributed
an advertisement which consisted of a reprint of a news photograph of a spectacular fire and an accompanying story which
mentioned plaintiff's name three times and also referred to his address and his occupation (motel keeper), and described how
either plaintiff or another person had started the fire by carelessness or negligence. The court rejected defendant's contention
that such use of plaintiff's name was not prohibited by the statute, since the use of the name would not in any way draw trade
to its firm, the purpose of the advertisement being to point out the danger of fires and therefore the necessity of purchasing
defendant's product. The court noted that such a contention might be valid if the only use prohibited by the statute was one for
"purposes of trade," but said that since the statute makes a use for "advertising purposes" a separate and distinct violation, it
could not be said that the complaint failed to set forth a use of plaintiff's name in violation of his statutory right of privacy.
The court in Thompson v Tillford (1912) 152 App Div 928, 137 NYS 523, held proper a preliminary injunction restraining
the defendant from using the plaintiff's name in an advertisement in handbills and circulars which, after stating the defendant's
name and describing his business, stated merely: "For over ten years with Mr. E. B. Thompson [the plaintiff] of this town."

A well–known dress designer who had commercialized his surname in connection with dress designs and had authorized another
to use his surname in connection with the perfume business was held, in Adrian v Unterman (1952) 281 App Div 81, 118
NYS2d 121, affd 306 NY 771, 118 NE2d 477, not to have waived his right to maintain an action, under the New York statute,
enjoining the use of his name by a third party.
A cause of action under the New York statute was stated where plaintiff, a renowned pianist, alleged that defendant had made
reproductions from phonograph records of plaintiff's performances and had sold them as plaintiff's performances, using his
name in connection with such sale. Gieseking v Urania Records, Inc. (1956) 17 Misc 2d 1034, 155 NYS 2d 171.
See Coleman v Ted's Auto Sales, Inc. (1962) 34 Misc 2d 100, 227 NYS2d 693, affd 17 App Div 2d 827, 233 NYS2d 239,
supra § 4[a], motion to dismiss app den 12 NY2d 833, 236 NYS2d 609, 187 NE2d 464, finding sufficient a complaint which
alleged that defendant corporation falsely stated to a credit–rating corporation, for the purpose of obtaining credit, that plaintiff,
an attorney with a widespread reputation in the automotive field, was an officer and director of the corporation.
Cases:
Allegations that e-mails sent by operator of social media website, which reminded users' contacts that users sent invitations to
contacts to connect on website, functioned as advertisements for website, and that reminder e-mails had great advertising value
to operator because they made use of users' names and likenesses, alleged that operator's use of users' names and likenesses was
not incidental to operator's commercial purposes, as required for users' commercial misappropriation claim against operator
under California law. Cal. Civ.Code § 3344. Perkins v. Linkedin Corporation, 53 F. Supp. 3d 1222 (N.D. Cal. 2014).
In action by former professional basketball star who alleged common–law and statutory violations of his right of publicity on
part of automobile manufacturer which ran television commercial in which star's former name appeared, court erred in granting
summary judgment against star where commercial, which aired during college basketball championship tournament, had voice–
over asking who held record for being voted most outstanding player of tournament, and star's former name (which he used
during college) appeared on screen, where commercial then went on to advertise automobile, where automobile manufacturer did
not obtain star's consent nor did it pay him for use of his former name, where common–law right of publicity protects celebrities
from appropriations of their identity, where statute specified that action could be based on defendant's use of plaintiff's name,
where court erroneously held that star had abandoned his former name and could not sue upon its use, where statute's reference
to name is not limited to name's present or current use, where court correctly refused to accept automobile manufacturer's
argument that its use of star's former name was incidental and therefore not actionable, where even though star's basketball
record may be said to be "newsworthy," its use was not automatically privileged, and where star alleged sufficient facts to state
claim under both common law and statute. Abdul-Jabbar v GMC (1996, CA9 Cal) 85 F3d 407, 96 CDOS 3618, 96 Daily Journal
DAR 5940 (applying Cal law).
Magazine article about interior designer, in which designer mentioned name of former professional baseball player for whom
he was designing house, did not fall within bona fide news report exception to statute prohibiting use of one's name or likeness
for trade, commercial or advertising purposes, and as such, designer was not immune from liability with respect to player's
action for unauthorized publication of name or likeness; designer sought publication of article, and use of player's name in
article came about exclusively through information supplied by designer, not from any independent research by article's author.
West's F.S.A. § 540.08(3)(a). Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. Dist. Ct. App. 4th Dist. 2004),
reh'g denied, (Nov. 16, 2004).

Use of plaintiff's name in car dealership's radio advertisement after defendants received notice that ad was misleading public
into believing that plaintiff, a lawyer, was person mentioned in ad constituted invasion of privacy, even though one of dealer's
salesmen had same name as plaintiff; malicious intent was not necessary element in prosecution of such claims. Tooley v Canal
Motors, Inc. (La App) 296 So 2d 453.
In action by pharmacy owner who alleged that chain store, with whom owner was negotiating sale of his business, invaded
his privacy by misappropriating his name and likeness in newspaper circular prematurely announcing that owner had sold his
business to chain and would be working for chain, court did not err in entering judgment in favor of owner where owner and
chain had not concluded deal at time circular was to appear, where in advance of circular's appearance in Sunday newspaper,
owner asked chain not to run it, where chain refused on basis that it would be too expensive pull it, and instead it printed quarter–
page statement in same edition of newspaper indicating that circular was in error, where 4 days before appearance of circular,
owner told chain that their deal was off, where sometime after appearance of circular, another large company withdrew from
negotiations to purchase owner's pharmacy, and where circular included owner's photograph, which owner had allowed to be
taken for use if sale had been consummated. Shepard's Pharmacy v Stop & Shop Cos. (1994) 37 Mass App 516, 640 NE2d
1112, review den 419 Mass 1102, 644 NE2d 226.
See People for the Ethical Treatment of Animals v Bobby Berosini, Ltd. (1994, Nev) 867 P2d 1121, 22 Media L R 1769, § 3.
Court could enjoin manufacture, distribution, and sale of "The Howard Hughes Game" on grounds of invasion of privacy, but
injunction could not be made to extend to other jurisdictions, since law as to right of privacy with respect to public figures might
have different efficacy. Rosemont Enterprises, Inc. v Urban Systems, Inc. 42 App Div 2d 544, 345 NYS2d 17.
In action in which owner of publicity and trade rights in musical group "Beatles" alleged that Beatles–imitators band violated
state personal rights and protection act, court would grant owner's motion for summary judgment where band imitated Beatles'
overall appearances, hairstyles, dress, mannerisms, voices, equipment, and musical performances, where band's four members
referred to themselves as John, Paul, George, and Ringo, where combination of these four names had acquired secondary
meaning and was another term for Beatles, where use of these four names by band in advertising and promotional materials
violated state act, and where band's use of Beatles' album–cover–inspired posters and use of name "The Beatles" in advertising
and promotional materials likewise violated act; band's use of names John, Paul, George, and Ringo in performances did not
violate act inasmuch as names were not used in advertisements or promotions. Apple Corps v A.D.P.R., Inc. (1993, MD
Tenn) 843 F Supp 342, 22 Media L R 1562, 30 USPQ2d 1372 (applying Tenn law).
Statutory claim for invasion of privacy was stated by couple whose name and telephone were broadcast over air on "dialing
for dollars" program, where program was aired soley for purposes of advertising station and increasing number of its viewers.
Publication of couple's name and number in telephone book did not constitute consent to unauthorized use of their name on air
for purposes of trade. Jeppson v United Television, Inc. (1978, Utah) 580 P2d 1087.
Former military cadet stated claim that publisher of Internet website violated Virginia privacy statute, prohibiting unconsented to
use of names for advertising purposes, by alleging that publisher used his name and description of computer hacking prosecution
conducted under Uniform Code of Military Justice (UCMJ) as illustrative of need for type of anti-hacking protection service
available through website. West's V.C.A. § 8.01-40. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604 (E.D. Va. 2005) (applying
Virginia law).

Non-consensual use of world renowned author's name for purposes of advertising local author's book constituted a violation
of Virginia's privacy statute. Va.Code 1950, § 8.01–40. Cornwell v. Sachs, 99 F. Supp. 2d 695 (E.D. Va. 2000) (applying
Virginia law).
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§ 20[b] Other uses of name—Recovery denied
Under the circumstances obtaining in the following cases no recovery could be had for the use of plaintiff's name in an
advertisement.
See also Fullerton v Kennedy (1959) 19 Misc 2d 502, 187 NYS2d 213, holding that where the divorced wife of plaintiff placed
an advertisement in a newspaper, at his insistence, setting forth the change of name in her business from her former married
name to her maiden name, the plaintiff could not complain, in an equitable action based on the wrongful use of his name in
violation of the New York statute, about the relative size of type faces used.
In Rosenthal v Kotler (1960) 26 Misc 2d 947, 208 NYS2d 167, an architect prepared an illustration to represent a finished
basement, but did not copyright it, and it was published in a newspaper of wide circulation on at least three occasions, the
plaintiff's name appearing thereon as it had been placed on the original drawing. When, thereafter, the defendant builders caused
an advertisement to be published featuring the same illustration, the plaintiff brought an action for wrongful appropriation and
use of the illustration and for unauthorized use of plaintiff's name under the NEw York statute. The court held that with the prior
newspaper publication any common–law right of action by the plaintiff was lost, and that the use of his name on one or two
reproductions of the plaintiff's illustration would not violate the New York statute.
Cases:
Recording artists and record company's use of name of professional actress in song did not violate New York right of privacy
statute; song was protected work of art under First Amendment. U.S.C.A. Const.Amend. 1; N.Y.McKinney's Civil Rights
Law §§ 50, 51. Lohan v. Perez, 924 F. Supp. 2d 447 (E.D. N.Y. 2013).
See Falwell v Flynt (1986, CA4 Va) 797 F2d 1270, 13 Media L R 1145, 21 Fed Rules Evid Serv 401, reh den, en banc (CA4)
805 F2d 484, 13 Media L R 1671 and cert gr (1987, US) 94 L Ed 2d 788, 107 S Ct 1601, motion gr (US) 97 L Ed 2d 759, 107
S Ct 3259 and revd on other gnds (US) 99 L Ed 2d 41, 108 S Ct 876, 14 Media L R 2281, § 4[b].
Where, without knowledge or consent of famous television and nightclub entertainer, defendant tourist agency advertised in
newspapers and by mail a tour of Las Vegas where entertainer was appearing, using both his name and picture in describing

the tour, damages were not recoverable, since invasion of privacy was not recognized in jurisdiction where action was brought.
Carson v National Bank of Commerce Trust & Sav. (DC Neb) 356 F Supp 811.
Under Colorado law, brewery's use of term "beerman" in advertising campaign did not violate right of publicity of beer vendor
who had developed "Bob the Beerman" character at athletic events; there was no evidence that vendor, as opposed to his
character, was celebrity, brewery had not used vendor's likeness, and no beer vending characters used in advertisements bore
close resemblance to vendor. Donchez v. Coors Brewing Co., 392 F.3d 1211 (10th Cir. 2004) (applying Colorado law).
Use of photographic enlargement of back cover of paperback edition of novel in which plaintiff's name was used with reference
to notorious crime in which he had pleaded guilty, which enlargement was used in advertising movie based on novel, and
use of his name during personal, radio, and television interviews in promotion of motion picture, did not invade his privacy.
Leopold v Levin, 45 Ill 2d 434, 259 NE2d 250.
Although hospital received payment from patient's insurer as a result of its unauthorized use of patient's insurance information
to file an insurance claim for treatment provided to his daughter, patient's name or likeness was not exploited in the sense
contemplated by invasion of privacy statute prohibiting exploitation of a person for advertising or commercial purposes. Neb.
Rev. St. § 20–202. Wilkinson v. Methodist, Richard Young Hosp., 259 Neb. 745, 612 N.W.2d 213 (2000).
Plaintiff's allegation that comedian used video clip of plaintiff without his consent on comedian's television show was insufficient
to support claim for violation of New York Civil Rights statutes prohibiting nonconsensual use of a name, portrait or picture
for advertisement, since video footage in which plaintiff's voice, picture, and likeness appeared was not used for advertising
or trade purposes, and video fell within public interest exception to statutes. McKinney's Civil Rights Law §§ 50, 51.
Sondik v. Kimmel, 16 N.Y.S.3d 296, 2015 WL 5435911 (App. Div. 2d Dep't 2015).
Provision in New York State Civil Rights Law prohibiting use, for purposes of advertising or trade, of living person's name,
portrait, or picture does not apply to sale or disposition of compositions that person has sold or disposed of with such name,
portrait, or picture used in connection therewith. N.Y.McKinney's Civil Rights Law §§ 50, 51. Cafferty v. Scotti Bros.
Records, Inc., 969 F. Supp. 193 (S.D.N.Y. 1997) (applying New York law).
See Ladany v. William Morrow & Co., Inc., 465 F. Supp. 870, 4 Media L. Rep. (BNA) 2153 (S.D. N.Y. 1978) (applying
New York law), § 7.
In action for invasion of privacy, brought by fashion designer and design consultant against maker of handbags and accessories,
reference in article to plaintiff as having joined firm as designer was not actionable as nonconsensual use of person's name for
purposes of advertising or trade where reference was fleeting and incidental and where potential rewards for using plaintiff's
name were too remote and speculative to sustain her claim. Marks v Elephant Walk, Inc. (1989, 2d Dept) 156 App Div 2d 432,
548 NYS2d 549, 17 Media L R 1612.
Chief counsel and chief consultant to Investigations Subcommittee of Senate Government Operations Committee during 1950s,
failed to state cause of action under New York statute for invasion of privacy for use of names in advertising film portraying era
of Senator Joseph McCarthy, where subject was still matter of public interest and where there was no allegation or proof that
advertising was false and published with knowledge of falsity or with reckless disregard of truth. Cohn v National Braodcasting
Co. (1979, 1st Dept) 67 App Div 2d 140, 414 NYS2d 906.

Television program's fictional comedic presentation did not fall within the scope of "trade" or "advertising" prohibited under
statutes requiring prior written consent for use of a living person's name, portrait or picture for advertising or trade purposes.
McKinney's Civil Rights Law §§ 50, 51. Costanza v. Seinfeld, 693 N.Y.S.2d 897, 27 Media L. Rep. (BNA) 2177
(Sup. Ct. 1999).
See Seale v. Gramercy Pictures, 949 F. Supp. 331 (1996, E.D. Pa.) (applying Pennsylvania law), § 21[c].
law), § 20[a].
Evidence failed to support judgment for invasion of privacy, based on advertisement paid for by defendant in community
newspaper in which defendant blamed plaintiff for causing flooding to defendant's adjoining property, where advertisement was
for the most part based on information obtained from public records. Gill v Snow (1982, Tex App 2d Dist) 644 SW2d 222.
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§ 21[a] Other uses of picture—Generally; for display purposes
In the following cases, the display or other use of plaintiff's picture for advertising purposes, other than in the mass
communications media, 3 was held to constitute an invasion of privacy.
In Olan Mills, Inc. v Dodd (1962) 234 Ark 495, 353 SW2d 22, plaintiff had her picture taken by representatives of defendant,
a professional photographer, for the purpose of presenting a photograph to her daughter. When defendant subsequently, and
without plaintiff's consent, used her picture on postcards mailed for advertising purposes and for enlargements used by door–
to–door salesmen, and plaintiff testified as to her humiliation, embarrassment, and mental anguish, plaintiff was held entitled
to damages for violation of her right of privacy.
The plaintiff was held to be entitled to an injunction, and to recover damages, against a photographer whom she had employed to
make her photograph, and against the owner of a store where a copy of this photograph was displayed to the public for advertising
purposes, in McCreery v Miller's Groceteria Co. (1936) 99 Colo 499, 64 P2d 803, on the theory that the photographer had
wilfully breached his contract with the plaintiff, and that the grocer had induced the breach and conspired with the photographer
to display the picture, with knowledge of the plaintiff's contract with the photographer. It would appear from a dissenting opinion
that the court had originally reached the same result on the theory that there had been an invasion of the plaintiff's right of
privacy. But upon a rehearing, the original opinion was withdrawn, and the court stated that it was unnecessary to discuss the
rights of privacy.
In Munden v Harris (1911) 153 Mo App 652, 134 SW 1076, a 5–year–old child was held entitled to recover damages against a
merchant who, without authority, published and circulated the plaintiff's picture in connection with an advertisement containing
the following words: "Papa is going to buy mamma an Elgin watch for a present, and some one (I musn't tell who) is going to
buy my big sister a diamond ring. So don't you think you ought to buy me something? The payments are so easy, you'll never

miss the money if you get it of [defendant]." The court explicitly recognized the existence of a right of privacy, although it also
took the view that the right to one's picture or image is a right of property.
In Bennett v Gusdorf (1935) 101 Mont 39, 53 P2d 91, it was held that a photographer, who, having photographed a girl
by agreement with her, supplied copies of the photograph without her authority to various merchants, who displayed the same
conspicuously in stores as a part of an advertising scheme, was liable in damages to the girl. Recovery was sought on the ground
that the acts of the defendant constituted an invasion of the plaintiff's right of privacy; but the court, after adverting to the
conflict of authority on the question of the existence of a common–law right of privacy, held that it was unnecessary to decide
this question, since the plaintiff could recover on the ground of breach of an implied contract not to use the plaintiff's picture
for any purpose other than supplying her with copies thereof.
The plaintiff in Canessa v J. I. Kislak, Inc. (1967) 97 NJ Super 327, 235 A2d 62, had for a number of years been unsuccessful
in finding a house or apartment that he could rent for his family which contained eight children. When he ran an ad in the "Lost
and Found" section of a newspaper to the effect that he had lost the right to rent because of too many children, he was contacted
by a salesman working for defendant realestate company, and this salesman convinced plaintiff that, with defendant's help, he
could purchase a home under the GI bill. After such purchase, an employee of defendant contacted the newspaper, which in
turn contacted plaintiff and got his permission to write a story about how plaintiff's housing problem had been solved. After
this story, and an accompanying photograph for which plaintiff and his family posed, had appeared in the newspaper, it was
reprinted, without plaintiff's permission, on sheets containing defendant's trademark, address, and telephone number and the
words: "J. I. Kislak, Inc. The live wire Founded 1906." Noting that one of defendant's salesmen had testified that these reprints
were used by defendant's salesmen as part of their sales kits to show prospective purchasers "what could be accomplished
by Kislak salesmen for veterans," the court stated that the reprints were without doubt distributed for advertising purposes in
advancement of defendant's commercial interests. The court denied defendant's motion for summary judgment, rejecting the
defendant's contention that because plaintiff consented to the original publication of the photograph, he had waived his right of
privacy with respect to further publication under defendant's trademark.
And a recovery was permitted under the New York statute for the acts of the defendant in displaying and offering for sale
pictures of the plaintiff, in Kunz v Bosselman (1909) 131 App Div 288, 115 NYS 650.
The use by a railway company of plaintiff's picture for the purpose of teaching passengers a safe way to enter and leave a car
amounted to a use of plaintiff's likeness for advertising purposes even though the advertisement might have been made for
unselfish purposes. Almind v Sea Beach R. Co. (1913) 157 App Div 230, 141 NYS 842, supra § 4[a].
In Harris v H. W. Gossard Co. (1921) 194 App Div 688, 185 NYS 861, it was held that where plaintiff's name and portrait had
frequently been published without objection on her part, and where she admitted that she was not averse to publicity gained by
such publication, a verdict of 6 cents for the use of her picture without her written consent was not inadequate.
The sale in five–and–ten–cent stores of lockets containing the photograph of the plaintiff, an actress, was held to constitute a
violation of the New York statute, entitling the plaintiff to recover against the owner of the stores. Lane v F. W. Woolworth
Co. (1939) 171 Misc 66, 11 NYS2d 199 affd without op 256 App Div 1065, 12 NYS2d 352. In overruling the argument of
the defendant that the use of the plaintiff's picture was merely to illustrate the use of the lockets, and that it was "designated"
on the back of the picture that it should be replaced with the purchaser's favorite photograph, the court said: "The photograph
was obviously used to bring attention to the lockets on display, to make them more attractive. This is a use for 'advertising' and
for 'trade' purposes. the photograph went along with the locket, it was sold wtih the locket. The gratuitous suggestion to the
purchaser, on the back of the photograph, in effect that, if so minded, he might replace it with a photograph more to his liking
—a suggestion which the purchaser, if he went so far as to remove the photograph from the locket and to read the printed matter

on the back, did not have to adopt if he preferred plaintiff's picture to any other —in no way altered the fact that plaintiff's
photograph was actually sold by defendant."
See also Fisher v Murray M. Rosenberg, Inc. (1940) 175 Misc 370, 23 NYS2d 677, infra § 21[b], where plaintiff was held
entitled to recover for the use of his picture, without his consent, on display cards and in newspaper advertisements.
In Rubino v Slaughter (1954, Sup) 136 NYS2d 873, supra § 4[a], a complaint alleging that the defendant labor union had caused
handbills containing plaintiff's picture to be publicly disseminated in connection with a membership drive was held to state a
cause of action under the New York statute.
In the following cases, however, the display or similar use of plaintiff's picture was held not to give rise to a cause of action
for invasion of privacy.
A famous football player, who had sought and received nationwide publicity as such, was held not entitled to recover, in an
action for violation of the right of privacy, for the use of his name and picture on a calendar containing football schedules and
advertising the defendant's beer, where the picture had been posed by the plaintiff for purposes of public distribution and was
furnished by the publicity department of his former college, with his actual or apparent authority. O'Brien v Pabst Sales Co.
(1941, CA5 Tex) 124 F2d 167, cert den 315 US 823, 86 L Ed 1220, 62 S Ct 917.
In a four–to–three decision, New York's highest court, 4 in Roberson v Rochester Folding Box Co. (1902) 171 NY 538,
64 NE 442, 59 LRA 478, adopted the view that there is no "right of privacy" enforceable at law or in equity. In this case the
defendant, without the knowledge or consent of the plaintiff, printed and circulated about 25,000 lithographic prints, consisting
of a good likeness of the plaintiff, a young woman, together with certain advertising matter, including the words "Flour of the
Family," and the name of a milling company, and caused these pictures to be conspicuously displayed in stores, warehouses,
saloons, and other public places, where the pictures were recognized as likenesses of the plaintiff by her friends, resulting in great
humiliation, distress, and suffering on her part. The plaintiff sought, solely on the ground of a violation of her right of privacy,
both an injunction and damages. Chief Judge Parker, after reviewing the authorities, and referring to the "clever article" by
Warren and Brandeis in 4 Harvard L Rev 193, denied the existence of the so–called "right of privacy" on two principal grounds,
namely, first, that the supposed right was not mentioned by any of the great commentators nor sustained by any precedents,
and second, that the recognition of such a right would open up a vast field of litigation, some of it bordering upon the absurd.
In Martin v F.I.Y. Theatre Co. (1938, CP) 10 Ohio Ops 338, 26 Ohio L Abs 67, the plaintiff, an actress of high reputation
who alleged that she had spent large sums in publicizing herself as a legitimate actress, was held not entitled to recover from
the owner of a theater featuring burlesque shows who had exhibited a large photograph of plaintiff among lewd burlesque
performers, the court reasoning that plaintiff's quest for publicity deprived her of any right of privacy.
While recognizing the existence of a right of privacy, the court in Harlow v Buno Co. (1939) 36 Pa D & C 101, held that a
manufacturer of a hair preparation who ordered from a publishing company and distributed a large number of display cards
containing a photograph of plaintiff was not liable to plaintiff for this commercial use of her picture where it appeared that
plaintiff, an employee in a beauty shop, had posed for the photograph for her employer for display in his shop to illustrate his
work; that the employer forwarded the photograph to a publishing company for use for advertising purposes in beauty shops;
that the photograph was accompanied by a purported release from the plaintiff, found by the jury to be a forgery; and that
the defendant had inquired, at the time it purchased the pictures, concerning permission to use them and was assured by the
publishing company that releases had been obtained. Holding that the invasion of privacy, to be actionable, must be intentional,

and that a defendant must knowingly publish the photograph of plaintiff without authority, the court stated that the necessity of
determining, at his peril, the validity of a release, or the existence of releases, would be such a burden as effectually to prevent
the use of photographs for advertising purposes.
Cases:
Photographer's direction of Christmas card to editors, which card contained picture of photographer on one side and picture of
Jacqueline Onassis on other, amounted to advertising for photographer and gave grounds for private right of action under §§
50 and 51 of New York Civil Rights law. Galella v. Onassis, 353 F. Supp. 196 (S.D. N.Y. 1972), judgment aff'd in
part, rev'd in part on other grounds, 487 F.2d 986, 1 Media L. Rep. (BNA) 2425, 17 Fed. R. Serv. 2d 1205, 28 A.L.R. Fed.
879 (2d Cir. 1973) (applying New York statute).
Use of image of television news anchor, who was videotaped in various states of undress while participating a wet t–shirt
contest, to sell video tapes and website memberships was not protected under the First Amendment so as to preclude claims
under Ohio or Florida law for violation of right to publicity; the images did not contain a significant creative component so that
they could be said to constitute expressive material or contain editorial content. U.S. Const. Amend. I; Ohio R.C. § 2741.02;
West's F.S.A. § 540.08. Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 32 Media L. Rep. (BNA) 1577, 70 U.S.P.Q.2d
(BNA) 1520 (N.D. Ohio 2004).
Copyright Act did not completely preempt claims for violation of Illinois right of publicity statute and common-law
misappropriation of name or likeness for commercial purposes, so as to support removal of suit brought by amusement park
patrons who alleged their photo appeared on commercial packaging without their consent. 17 U.S.C.A. § 301. Leto v. RCA
Corp., 355 F. Supp. 2d 921 (N.D. Ill. 2004).
See Carson v National Bank of Commerce Trust & Sav. (DC Neb) 356 F Supp 811, § 20[b].
See Page v. Something Weird Video, 960 F. Supp. 1438, 25 Media L. Rep. (BNA) 1489, 41 U.S.P.Q.2d (BNA) 1811 (C.D.
Cal. 1996) (applying Cal law), § 21[b].
In action for invasion of privacy, child did not have cause of action when department store photography department exhibited
child's picture without parent's consent even though there was technical invasion of privacy, where exhibition was promptly
discontinued when requested by parents, where one–year–old child did not suffer any injury, and where damages would not
be awarded for invasion of right without proof of actual damage. Slocum v Sears Roebuck & Co. (1989, La App 3d Cir) 542
So 2d 777.
Portrait photographer and picture frame company did not have permission to use student's photograph in thousands of picture
frames to be widely distributed and displayed in numerous retail sales establishments, and thus were liable for invasion of
privacy for appropriation of likeness of another for use in commercial enterprise; photographer did not know who put initials
on authorization form but claimed that it must have been student, her mother, or her sister, but student and mother testified that
they had not extended permission to use photograph and sister did not have legal authority to issue such permission. Harbin
v. Jennings, 734 So. 2d 269 (Miss. Ct. App. 1999).

See People for the Ethical Treatment of Animals v Bobby Berosini, Ltd. (1994, Nev) 867 P2d 1121, 22 Media L R 1769, § 3.
Artist's photographs of neighbors, without their knowledge or consent, did not violate Privacy Act provisions prohibiting use,
without written consent, of name, portrait or picture of any living person for purposes of trade or advertising, even though profit
might have been derived from the sale of the photographs; photographs were works of art protected by First Amendment, and,
as such, were exempt from classification as "advertising" or "trade" under Privacy Act, and artist's actions in surreptitiously
photographing neighbors did not rise to the level of atrocious, indecent and utterly despicable behavior. U.S.C.A. Const.Amend.
1; McKinney's Civil Rights Law §§ 50, 51. Foster v. Svenson, 7 N.Y.S.3d 96, 2015 WL 1565726 (App. Div. 1st Dep't
2015).
In action by controversial radio talk–show celebrity who alleged commercial misappropriation by company that used celebrity's
photograph in magazine advertisement for on–line, computer bulletin board it set up to debate celebrity's candidacy for state
governorship, court would grant company's motion for summary judgment, where protections of statutes forbidding commercial
misappropriation of person's name or likeness are construed narrowly so as not to apply to publications concerning newsworthy
events, where even though company sold access to its bulletin board, it was disseminator of news, where celebrity's candidacy
was newsworthy, where use of celebrity's name and photograph therefore fell under "incidental use" exception to commercial
misappropriation statutes, and where fact that celebrity never approved use of his photograph by company did not preclude
finding of "incidental use." Stern v Delphi Internet Servs. Corp. (1995) 165 Misc 2d 21, 626 NYS2d 694, 23 Media L R 1789.
See Francica v Fun World (1988) 138 Misc 2d 628, 524 NYS2d 612, § 9[b].
Licensor's website advertisement for sale of photograph, which depicted plaintiff grasping a Mafia defendant's arm, fell under
New York right of privacy law's exception for sales for use in lawful manner, since licensee's ultimate use of the image in
advertising for a newsworthy "Inside the Mafia" documentary was a lawful incidental use. N.Y.McKinney's Civil Rights
Law § 51. Alfano v. NGHT, Inc., 623 F. Supp. 2d 355 (E.D. N.Y. 2009) (applying New York law).
Model sufficiently pled that adult nightclub's use, without her consent, on its website of videotape showing her dancing, was
for purposes of advertising or trade, so as to state cause of action under the Civil Rights law, by alleging that use of her image
on flyer was not only unconsented use of her image for trade and advertising purposes. McKinney's Civil Rights Law §§ 50,
51. Molina v. Phoenix Sound Inc., 747 N.Y.S.2d 227 (App. Div. 1st Dep't 2002).
In action for violation of state statutory right of privacy, trial court properly ruled, as matter of law, that defendants violated
statute when, without plaintiff's consent, they used her photograph on commercial billboard advertising. Felice v Delporte
(1988, 4th Dept) 136 App Div 2d 913, 524 NYS2d 919, app withdrawn, app gr, app den 72 NY2d 829, 530 NYS2d 549, 526
NE2d 40.
See Brinkley v Casablancas (1981, 1st Dept) 80 App Div 2d 428, 438 NYS2d 1004, § 12[b].
See Simeonov v Tiegs (1993, Civ Ct) 159 Misc 2d 54, 602 NYS2d 1014, § 4[b].
See Vinci v American Can Co. (1990, Cuyahoga Co) 69 Ohio App 3d 727, 591 NE2d 793, § 7.

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§ 21[b] Other uses of picture—In newspapers or other printed publications
In the following cases, the use of plaintiff's picture in a newspaper or other printed publication for advertising purposes was
held to constitute an invasion of privacy.
See Fitzsimmons v Olinger Mortuary Asso. (1932) 91 Colo 544, 17 P2d 535, holding that a widow would be allowed to
recover against an undertaker who inserted in newspapers an advertisement of his business, which was accompanied by a picture
showing the body of the widow's husband being removed from an airplane to a hearse, the advertisement including the names
of the plaintiff and the deceased.
Thus, a complaint which alleged that plaintiff's photograph was published, without her permission, in defendant newspaper for
advertising purposes, and that plaintiff was thereby subjected to ridicule, embarrassment, vexation, and humiliation, was held
in Korn v Rennison (1959) 21 Conn Supp 400, 156 A2d 476, to sufficiently state a cause of action for invasion of privacy.
The publication by an insurance company in a newspaper of a likeness of a man, easily recognizable as the picture of the
plaintiff, placed by the side of a likeness of an ill–dressed and sickly looking person, with captions indicating that the other
man was one who did not have life insurance, and that the plaintiff was protected by life insurance in the defendant company
(which was false), was held in Pavesich v New England Mut. L. Ins. Co. (1905) 122 Ga 190, 50 SE 68, 69 LRA 101, to
constitute an actionable invasion of plaintiff's right of privacy, the court stating that the defendant insurance company and its
agent had no more authority to display the plaintiff's form and features in public for the purpose of advertising the business in
which they were engaged than they would have had to compel the plaintiff to place himself upon exhibition for this purpose.
The court further observed that in the publication of one's picture for advertising purposes there is not the slightest semblance
of an expression of an idea, a thought, or an opinion, within the meaning of the constitutional provision which guarantees to
a person the right to publish his sentiments on any subject.
Recovery was permitted under the New York statute for the unauthorized use of the plaintiff's picture in advertising a book on
hair culture, in Riddle v MacFadden (1906) 116 App Div 353, 101 NYS 606.
Where, during the filming of a motion picture, a number of on–location pictures of plaintiff actress were taken with Minox
cameras, and pictures showing plaintiff focusing such a camera were later used in a manual sold by defendants, it was held
that plaintiff was entitled to recover under the New York statute, since defendant had not obtained her consent in writing for
the use of her name and picture for advertising purposes. Selsman v Universal Photo Books, Inc. (1963) 18 App Div 2d 151,
238 NYS2d 686.
A cartoonist and a newspaper which sold a cartoon containing a photographic reproduction of plaintiff to other newspapers for
reproduction therein were guilty of using plaintiff's likeness for the purposes of trade within the New York statute and therefore
liable in damages to plaintiff. McNulty v Press Pub. Co. (1930) 136 Misc 833, 241 NYS 29.
A complaint alleging that the defendants, while attending and treating plaintiff as physicians, took photographs of him which
they published as part of an article entitled "Saddle Nose" was held to state a cause of action under the New York statute, since

there was nothing in the complaint to show that the article and photographs were not published by the defendants to advertise
themselves and their handiwork. Griffin v Medical Soc. of New York (1939) 7 Misc 2d 549, 11 NYS2d 109.
In Fisher v Murray M. Rosenberg, Inc. (1940) 175 Misc 370, 23 NYS2d 677, it appeared that plaintiff, a professional dancer,
was photographed while performing at the 1939 World's Fair. A number of pictures taken at that time were used to advertise
"Miles Shoes" in newspapers and on display cards in shoe stores, without mentioning plaintiff's name. The court found that
such use of plaintiff's picture, without his consent, entitled him to recover damages for humiliation and distress of mind.
The publication of plaintiff's picture in a program booklet sold at a bicycle race was held actionable, in Miller v Madison Square
Garden Corp. (1941) 176 Misc 714, 28 NYS2d 811, supra § 4[a], the court noting that the booklet was not a publication sold
to the general public but was sold only in the arena where the sporting event took place.
In Pittera v Parade Publications, Inc. (1961) 29 Misc 2d 90, 216 NYS2d 162, motion to dismiss app den 13 App Div 2d 729,
218 NYS2d 495, where the plaintiff's picture was used in connection with an article entitled "How Much Is a Wife Worth?" the
court noted that there was nothing in the complaint which precluded the fair inference that such articles were primarily used
to obtain circulation. The complaint was held sufficient to present a jury question as to whether the photograph was used for
advertising or trade purposes.
In the following cases, the use of plaintiff's picture for advertising purposes in a newspaper or other publication was held not
to constitute an invasion of privacy.
Thus, it was held in Dabbs v Robert S. Abbott Publishing Co. (1963) 44 Ill App 2d 438, 193 NE2d 876, that plaintiff could
not recover from a newspaper that had published her picture and a news item to the effect that she had entered a beauty contest
to run in connection with the opening of a store, nor from the owner of the modeling agency which supplied the picture to
the newspaper, where plaintiff, in return for the modeling agency's endeavoring to obtain modeling jobs for her, had agreed to
cooperate with the agency by keeping it supplied with photographs and by making herself available for publicity stunts.
See Johnson v Boeing Airplane Co. (1953) 175 Kan 275, 262 P2d 808, supra § 10[b], holding that an employee who permitted
his picture to be taken with an airplane under construction, without inquiring as to the use to which such picture was to be put,
could not recover for the publication of such pictures in magazines with nationwide distribution.
The use of plaintiff's picture, without her consent, to advertise cosmetics was held not to be a violation of her privacy, in Pallas
v Crowley-Milner & Co. (1952) 334 Mich 282, 54 NW2d 595, where, at a time when she was a showgirl, the plaintiff had
consented to have her picture taken by a photographer with whom she had registered as a model.
And a complaint alleging the use of plaintiff's picture without her consent to illustrate a magazine article entitled "The Miracle
of Face Planing" was held, in Siegel v Esquire, Inc. (1957) 4 App Div 2d 477, 167 NYS2d 246, not to sufficiently allege a
cause of action under the New York statute. The court held that the picture, examined in conjunction with the text of the article,
appeared on its face to be an illustration of a newsworthy article on a new medical development, and was therefore a matter of
legitimate public interest. The court rejected the plaintiff's contention that the article was really an advertisement in disguise to
publicize the doctors mentioned in the article for their own pecuniary gain, and to publicize the machine they had developed.

See Albert v New York Tel. Co. (1960) 28 Misc 2d 296, 204 NYS2d 36, affd 11 App Div 656, 203 NYS 1019, where the court
refused to grant an injunction restraining defendants from using plaintiff's photograph for advertising purposes in the "Yellow
Pages" of its classified telephone directory. Referring to defendants' allegation that it would be impossible to recall 900,000
copies of a directory which had been distributed 5 months earlier, and that even if it were possible, telephone subscribers and
the business community would be deprived of the use of the directory for 8 months, the court held that even assuming that
plaintiff's rights under the New York statute were violated, equitable considerations required a denial of the relief sought.
In Martin v Senators, Inc. (1967, Tenn) 418 SW2d 660, supra § 10[b], it was held that a hatcheck girl who had permitted her
photograph to be taken for use in a bulletin published by her employer and distributed to the members of a "public" club could
not recover for invasion of privacy when her picture was subsequently used in conjunction with a newspaper advertisement.
Cases:
See Falwell v Flynt (1986, CA4 Va) 797 F2d 1270, 13 Media L R 1145, 21 Fed Rules Evid Serv 401, reh den, en banc (CA4)
805 F2d 484, 13 Media L R 1671 and cert gr (1987, US) 94 L Ed 2d 788, 107 S Ct 1601, § 4[b].
See Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 11 Media L. Rep. (BNA) 2264, 18 Fed. R. Evid. Serv. 273 (7th
Cir. 1985), § 10[a].
In action by actress who alleged that vintage video distributor misappropriated her likeness by using drawing of her in advertising
and on video box covers of films in which she starred, court would grant defense motion for summary judgment where
distributor's use of actress' likeness in advertising for two films in which she starred was protected by First Amendment in
that videos themselves were protected by First Amendment and advertising was incidental to protected publication of videos,
where advertising for video cassettes starring actress were not "commercial speech" for First Amendment purposes, even though
distributor charged for its catalog that contained actress' likeness, in that distributor did not intend to or in fact make profit from
its catalog sales and catalog was purely form of advertising of its products, and where distributor's use of actress' likeness to
promote videos of films in which she did not appear was protected by First Amendment in that promotion of vintage videos was
medium for transmission of news, so that use of actress' image to advertise entire line of video products was protected so long
as distributor did not falsely claim that actress endorsed distributor. Page v. Something Weird Video, 960 F. Supp. 1438, 25
Media L. Rep. (BNA) 1489, 41 U.S.P.Q.2d (BNA) 1811 (C.D. Cal. 1996).
In invasion of privacy action by model against magazine arising out of use of her photograph in advertisements allegedly
containing strong sexual overtones that promoted hair–care product made by affiliate of magazine, court would deny defense
motions for summary judgment where model alleged that magazine had misappropriated her image for commercial use, where
it was undisputed that model had not signed written consent form, and where magazine received commercial benefit from its
publication of model's photograph inasmuch as magazine had economic interest in profitability of its affiliate and any money
received by affiliate would necessarily have inured to benefit of magazine. Kyser-Smith v Upscale Communications (1995,
MD Ala) 873 F Supp 1519 (applying Ala law).
In action by two patrons of dog racing park who alleged their privacy was violated when park took photograph in which
patrons appeared and then used it in advertising brochure, court did not err in entering judgment for park where patrons were
photographed as they sat with other park attendees in reserved section of park's seating, where text on same page of brochure
as photograph described special services offered in reserved section and how to reserve seating there, where brochure did not

refer to persons in photograph, either by name or by implication, and photograph in which patrons appeared was one of several
in brochure illustrating various park services and activities, where there was nothing in record to support patrons' claims that
park intruded on their privacy or portrayed them in false light, where patrons' attending park activities and sitting in public
seating at park negated any claim of "solitude or seclusion" on part of patrons or intrusion into their "affairs or concerns," where
photograph of patrons in public seating they chose to occupy could not be interpreted as "highly offensive" to reasonable person,
and where photograph did not place patrons in false light in that it simply depicted normal activity at park and did not reflect
false information; there was no evidence to support patrons' claim of commercial misappropriation of their likenesses in that
there was no unique quality or value in patrons' likenesses that would have resulted in commercial profit to park simply from
using photograph of them, unidentified and seated in group; court did not err in refusing to consider patrons' affidavits setting
out their contention that they had not consented to their photograph being taken and that, if they had been informed of park's
intent to take photograph, they would have objected, where park submitted affidavits of two employees who stated that before
photograph was taken, park had made announcement indicating photograph would be taken, that patrons had had opportunity
to object or move, and that they had done neither, where employees' affidavits also established that photographs had been taken
on camera mounted on tripod in full view of, and only few feet away from, persons being photographed, and where in light of
evidence in record, patrons consented to having their photograph taken by neither objecting nor moving when those options were
made available by park. Schifano v Greene County Greyhound Park, Inc. (1993, Ala) 624 So 2d 178, 21 Media L R 1794.
In action by television game show hostess who alleged that electronics manufacturer and advertising agency violated her state
statutory and common–law rights of publicity when they ran magazine advertisement that depicted robot made to look like
hostess posed next to manufactuer's product sometime in twenty–first century, court did not err in rejecting hostess' claim
under state right of publicity statute where statute provided cause of action for knowing use of person's "likeness," and where
mechanical features of robot could not be said to be "likeness" under statute; court erred, however, in rejecting hostess' common–
law claim where common law was not confined, as was statute, to use of name or likeness, and where hostess alleged facts
showing appropriation of her identity. White v Samsung Electronics America, Inc. (1992, CA9 Cal) 971 F2d 1395, 92 CDOS
6578, 92 Daily Journal DAR 10519, 20 Media L R 1457, 23 USPQ2d 1583, amd (CA9) 92 CDOS 7130, 92 Daily Journal DAR
11502 (applying Cal law)92 CDOS 7130, 92 Daily Journal DAR 11502 (applying Cal law).
For purposes of California's statutory cause of action based on rights of publicity, a use of a name, image and likeness in
connection with any news or public affairs broadcast does not constitute a use for which consent is required; additionally, the
statute does not apply to the owners or employees of any medium used for advertising, unless the owners or employees have
knowledge of an unauthorized use. West's Ann. Cal. Civ. Code § 3344(d, f). Perfect 10, Inc. v. Cybernet Ventures, Inc.,
213 F. Supp. 2d 1146 (C.D. Cal. 2002) (applying California law).
Publication of a brokerage firm secretary's name and picture in private investigator's truthful newsletter article regarding felony
conviction for theft of bearer bonds was privileged under the First Amendment and, therefore, was not actionable as invasion
of privacy by appropriation of name or likeness; even though the investigator acted out of a profit motive and even if his
reasons for publishing the information were commercial, the publication related to a matter of public concern and was primarily
noncommercial speech. U.S.C.A. Const. Amend. 1. Joe Dickerson & Associates, LLC v. Dittmar, 34 P.3d 995 (Colo. 2001).
See Epic Metals Corp. v Condec, Inc. (1994, MD Fla) 867 F Supp 1009 (applying Fla law), § 6.
See Shepard's Pharmacy v Stop & Shop Cos. (1994) 37 Mass App 516, 640 NE2d 1112, review den 419 Mass 1102, 644 NE2d
226, § 20[a].

In action for invasion of privacy brought by patient against physician who had performed cosmetic surgery on her and medical
center which subsequently began distributing copies of promotional publication containing unidentified "before" and "after"
photographs of a patient's breast reduction and abdominoplasty, although plaintiff had given no consent for such publication, trial
court properly granted summary judgment on invasion of privacy claim where jurisdiction has never recognized cause of action
for invasion of privacy. Stubbs v North Memorial Medical Center (1989, Minn App) 448 NW2d 78, 17 Media L R 1090.
Railroad, which purchased portrait of Indian girl from artist in 1948, obtained copyright, and used portrait for advertising
purposes during 1950's with knowledge and without objection of girl, gave a magazine permission to use portrait. Magazine's
use of portrait on cover in 1970 prompted suit for invasion of privacy. Railroad would be liable for invasion of privacy if
magazine's use of credit line accompanying portrait constituted advertising for railroad. Gilham v Burlington Northern, Inc.
(CA9 Mont) 514 F2d 660 (applying Mont law).
Movie actor's suit for invasion of privacy, based on photograph in magazine article which showed plaintiff's head superimposed
on body of model with caption reading in part "Above, Cary Grant in a descendant of the classic cardigan, an Orlon doubleknit
navy, rust, and buff sweater–coat (Forum, $22.50)," would not be dismissed by summary judgment where questions of fact
existed as to whether defendant's actions were within statutory proscription of use for advertising purposes or purposes of trade;
i.e., plaintiff would be entitled to opportunity to establish whether any arrangement between magazine and maker of coat existed
which would make use of a paid advertisement; and, as to whether use was for purposes of trade, question existed for jury
whether magazine had appropriated plaintiff's picture merely to attract attention or whether it was used in course of a legitimate
comment on a public figure. Grant v Esquire, Inc. (DC NY) 367 F Supp 876 (applying New York law).
Defendant was liable to movie star under New York right of privacy statute where individual full–length likeness of star,
approximately 9 inches high, with features quite clear and characteristic, appeared in several magazines in advertisement
promoting sale of drug, the first 4 letters of which were the same as the movie star's first name. Negri v Schering Corp. (DC
NY) 333 F Supp 101 (applying New York law).
Use in defendant's newspaper of photograph of infant plaintiff eating ice–cream cone, with caption underneath that plaintiff was
10,000th visitor to attend children's ice–cream–manufacturing tour sponsored by defendant corporation, was not actionable as
use for purpose of advertising or trade within prohibition of statute, where plaintiff was singled out and photographed because
his presence constituted official participation in public event which invited special attention. Everett v Carvel Corp. 70 Misc
2d 734, 334 NYS2d 922.
Where a plaintiff's picture is used to illustrate an article on a matter of public interest or newsworthiness, there can be no
liability under New York statute requiring consent prior to use of likeness for commercial purposes, unless the picture has no
real relationship to the article or the article is an advertisement in disguise. N.Y.McKinney's Civil Rights Law §§ 50, 51.
Myskina v. Conde Nast Publications, Inc, 386 F. Supp. 2d 409 (S.D. N.Y. 2005) (applying New York law).
In action by physician who alleged that for–profit medical center that used her name and photograph in its calendar without
her permission invaded her privacy under statute prohibiting unauthorized use of person's name or picture for "advertising
purposes, or for purposes of trade," court did not award damages to physician where photograph showed physician along
with public figure two years earlier at public conference, where caption under photograph identified public figure, who
was medical doctor, as well as physician by name and professional title, where calendar had to be considered advertising
medium and promotional publication, given pervasive and prominent placement of medical center's name, logo, address, and
telephone number on each page of calendar, wide scope of distribution, range and nature of targeted audience, and glowing
characterizations and endorsements in calendar concerning services provided by medical center, where only physician and
public figure were identified as medical doctors, and services being promoted by medical center were its medical services, where

physician's name, photograph, and professional title were therefore central to calendar's unmistakable commercial message,
where there was no merit to medical center's argument that "theme" of calendar, which was history of women's movement, was
message of public interest that enveloped calendar in constitutional free speech/free press protections in that medical center
was not media defendant and it had used physician's name, photograph, and professional title in publication that was, on its
face, advertisement, and where medical center's argument that physician could not have action because she was limited–purpose
public figure was without merit in that calendar did not present simultaneous reporting by public medium of communication of
actions of person who had voluntarily entered public eye, but rather was deliberate later publication of no longer current news
item in advertising literature. Beverley v. Choices Women's Medical Center, Inc., 78 N.Y.2d 745, 579 N.Y.S.2d 637, 587
N.E.2d 275, 19 Media L. Rep. (BNA) 1724, 21 U.S.P.Q.2d 1313 (1991).
Use by chain of retail stores of attorneys' photograph, without his authorization, on cover of its annual stockholder report in
such manner as to portray him as customer of one of its stores constituted, at most, de minimis matter not actionable as wrongful
invasion of privacy. Rossi v. F. W. Woolworth Co., 56 A.D.2d 566, 392 N.Y.S.2d 9 (1st Dep't 1977).
See Seale v. Gramercy Pictures, 949 F. Supp. 331 (E.D. Pa. 1996) (applying Pennsylvania law), § 21[c].
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§ 21[c] Other uses of picture—On television or in motion pictures
The use of plaintiff's picture for advertising purposes, without his consent, on television, or in motion pictures, may give rise
to an action for invasion of privacy.
It was said in Smith v WGN, Inc. (1964) 47 Ill App 2d 183, 197 NE2d 482, supra § 10[a], that if the use of plaintiff's pictures
in connection with a television advertisement was without his consent, it would constitute an invasion of his right of privacy
which would entitle him to recover more than nominal damages.
The taking of motion pictures of a customer in a store, and the exhibition thereof in a theater in the neighborhood where the
customer lived, to advertise the business of the store, without the consent of the customer, was held to constitute an invasion
of the customer's right of privacy, entitling her to damages against the owner of the store. Kunz v Allen (1918) 102 Kan
883, 172 P 532, LRA1918D 1151.
The producers and distributors of a motion picture entitled "Sight Seeing in New York with Nick and Tony" were held in
Blumenthal v Picture Classics (1932) 235 App Div 570, 257 NYS 800, affd 261 NY 504, 185 NE 713, to be liable to a
woman who was shown in the motion picture in the act of selling bread and rolls on the street.
But in Sherwood v McGowan (1956) 3 Misc 2d 234, 152 NYS2d 658, supra § 10[b], it was held that one who had signed a
general release, consenting to the exhibition of a film in which he appeared, could not recover where the film was shown to
an audience different from the one contracted for.

Even if plaintiff knew that a character representing him and bearing his name was to be portrayed in a television program,
and even though he had raised no objection to such use and had even tried to help procure members of the cast, plaintiff was
entitled to an injunction restraining the broadcast of such a program where his written consent had not been given. Durgom
v Columbia Broadcasting System, Inc. (1961) 29 Misc 2d 394, 214 NYS2d 752, noting that oral consent is no defense to an
action for damages for violation of the statute and would constitute at most a partial defense in mitigation of damages.
Cases:
Professional musician who, at "someone's" request, mounted stage at Woodstock festival and performed before 400,000 people
and movie cameras, could not recover under New York statute authorizing action for damages and injunctive relief where
person's name, portrait, or picture is used for advertising for purposes of trade without that person's consent, since motion picture
of festival presented true account of what actually happened at event of great public interest, and mere fact that defendants were
spurred by profit motive and engaged in commercial exploitation of motion picture did not negate their right to depict matter
of public interest or to advertise picture by showing of "trailer"; moreover, statute was never intended to apply to professional
entertainers who are shown giving performance before public audience, and fact that plaintiff by his own volition placed himself
in spotlight of sensational event which exposed him to glare of publicity made him newsworthy and deprived him of any right
to complain of violation of statute. Man v Warner Bros., Inc. (DC NY) 317 F Supp 50.
Even if preemption of state-law claim under Copyright Act provided basis for removal, absence of evidence that amusement
park patrons provided release allowing them to be photographed while riding roller coaster precluded determination that patrons'
personas as depicted in such photograph were "fixed" and copyrightable for preemption purposes, and therefore patrons' state-
law claims for alleged violation of Illinois right of publicity statute and common-law misappropriation of name or likeness for
commercial purposes, which were based on television packaging's use of patrons' picture, were not preempted by Act, and their
state-court action could not be removed by television manufacturer and retailers pursuant to complete preemption doctrine. 17
U.S.C.A. §§ 101, 102, 301;S.H.A. 765 ILCS 1075/15. Leto v. RCA Corp., 341 F. Supp. 2d 1001 (N.D. Ill. 2004), reconsideration
denied, (Oct. 26, 2004).
For purposes of California's statutory cause of action based on rights of publicity, a use of a name, image and likeness in
connection with any news or public affairs broadcast does not constitute a use for which consent is required; additionally, the
statute does not apply to the owners or employees of any medium used for advertising, unless the owners or employees have
knowledge of an unauthorized use. West's Ann. Cal. Civ. Code § 3344(d, f). Perfect 10, Inc. v. Cybernet Ventures, Inc.,
213 F. Supp. 2d 1146 (C.D. Cal. 2002).
See Baugh v CBS, Inc. (1993, ND Cal) 828 F Supp 745, 93 Daily Journal DAR 10373, 21 Media L R 2065 (applying Cal
law), § 4[b].
See Vassiliades v Garfinckel's, Brooks Bros. (1985, Dist Col App) 492 A2d 580, 11 Media L R 2057, § 21[a].
Company that edited assembled video footage depicting young women exposing themselves in public places was not liable
under Florida law for common law invasion of privacy based on commercial misappropriation of likeness of 17–year–old girl
who was depicted in video and related television commercials exposing her breasts in public place, given that girl's likeness

was not used to directly promote product or service and girl consented to use and publication of her likeness. Lane v. MRA
Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002) (applying Florida law).
Individual's allegations that video footage of individual exposing her breasts was used without her consent to endorse a video,
for video producer's commercial gain, stated claim for appropriation of likeness. Bullard v. MRA Holding, LLC, 740 S.E.2d
622 (Ga. 2013).
In statutory action for misappropriation of likenesses brought by popular music performers against cable television network,
motion picture studio, and producer of film containing previous published film footage of these groups performing, interspersed
with reminiscences of individuals associated with production of groups' recordings, which was shown on cable television and
marketed, advertised and distributed for home video market, defendants' motion for summary judgment was denied where mere
assertion of "public interest" exemption for newsworthy items from scope of statute would not forestall inquiry into issue of
whether defendants merely identified video as newsworthy as pretext for usurping creative effort so whether or not defendants
utilized plaintiffs' likenesses for commercial or trade purposes must await resolution at trial. James v Delilah Films, Inc. (1989)
144 Misc 2d 374, 544 NYS2d 447, 12 USPQ2d 1387.
See Friedan v Friedan (DC NY) 414 F Supp 77 (applying New York law), § 22.
See Lombardo v Doyle, Dane & Bernbach, Inc. (1977) 58 App Div 2d 620, 396 NYS2d 661, § 6.
Where plainitff's nude picture was used in film and petition did not contain allegation that charge was made for exhibition of
film, use of plaintiff's picture was not for advertising purposes or for purposes of trade. McGraw v Watkins (App Div) 373
NYS2d 663.
Use of plaintiff's image in rock band documentary did not constitute a use for advertising or trade purposes in violation of "right
to privacy" statute, since a viewing of the documentary made clear that it was just that, a documentary, and the program was not
used as a vehicle to promote either the band member's or the band's music or merchandise, nor otherwise as an advertisement.
McKinney's Civil Rights Law § 51. Ward v. Klein, 10 Misc. 3d 648, 809 N.Y.S.2d 828 (Sup 2005).
In suit for general damages for mental anguish based on use by broadcasting company of film of scene of automobile accident
to advertise another news program, absent showing that plaintiff accident victim's picture was either obtained or broadcast
in manner or for purpose wrongful beyond unconsented publication itself, plaintiff's claim failed. Anderson v Fisher
Broadcasting Cos. (1986) 300 Or 452, 712 P2d 803, 12 Media L R 1604.
Use of person's name and likeness to advertise novel, play, or motion picture concerning that individual is not actionable as
infringement of right of publicity. Seale v. Gramercy Pictures, 949 F. Supp. 331 (E.D. Pa. 1996), related reference, 964
F. Supp. 918 (E.D. Pa. 1997) (applying Pa law).
Television station's promotional broadcast for its investigative reporting, during which state fire marshall's televised image
briefly appeared, did not constitute unauthorized use of his picture, under statute giving cause of action to any person whose
name, portrait, or picture was used within state for advertising purposes or for purposes of trade, without consent; news medium
such as television station had constitutional privilege to tout itself in promotional spots or advertisements by showing brief
rebroadcasts or televised snippets from its past, nondefamatory, investigative report concerning fire marshall. Gen.Laws 1956,
§ 9–1–28. Leddy v. Narragansett Television, L.P., 843 A.2d 481 (R.I. 2004).

[Top of Section]
[END OF SUPPLEMENT]
§ 22. Advertising a nonactionable publication
Under the New York privacy statute, a publication involving a matter of public interest, such as an article or film reporting a
newsworthy event or referring to a public personage, does not constitute an invasion of privacy. 5 An advertisement which in
turn publicizes such an article or film of public interest has been held not to constitute an actionable invasion under the New York
statute on the ground that such an advertisement makes only an "incidental" use 6 of the name or picture of the person publicized.
An advertisement in a newspaper of a biographical sketch in a forthcoming issue of a magazine was held not to be a basis of
recovery by the person who was the subject of the biography, under the New York privacy statute, where the magazine article
itself was unobjectionable, especially where the advertisement did not use the name or picture of the plaintiff. Sidis v F-R
Pub. Corp. (1904, CA2 NY) 113 F2d 806, 138 ALR 15, cert den 311 US 711, 85 L Ed 462, 61 S Ct 393.
Thus, where the production and presentation of a motion–picture news film, containing the name and picture of the plaintiff,
did not constitute the use of such name or picture "for advertising purposes, or for the purposes of trade," within the meaning
of the New York privacy statute, it was held that the use of her name and picture upon posters or billboards in front of and in
the approach to a theater showing such film, which use was for advertising the picture, was merely incidental to the exhibition
of the film itself, and did not come within the meaning of the statute. Humiston v Universal Film Mfg. Co. (1919) 189 App
Div 467, 178 NYS 752.
Where a photograph of a well–known actress was taken at a resort, with her knowledge and without her objection, and thereafter
published in a travel magazine, which publication was concededly not a violation of plaintiff's right of privacy since it was a
reproduction for news purposes, but thereafter the same photograph was used by defendant, publishers of "Holiday" magazine,
to advertise its magazine in the "New Yorker" magazine and in "Advertising Age," a trade periodical, it was held in Booth
v Curtis Publishing Co. (1962) 15 App Div 2d 343, 223 NYS2d 737, affd 11 NY2d 907, 228 NYS2d 468, 182 NE2d 812, that
although the republication of plaintiff's picture was, in motivation, sheer advertising and solicitation, it did not constitute an
invasion of her privacy inasmuch as the law accords an exempt status for incidental advertising of a news medium itself. The
court held that as 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 despite its use for advertising, it being essential to such holding, however, that there be
nothing in the reproduction which would suggest that plaintiff had indorsed the magazine.
The use of the plaintiff's photograph and name in advertising his unauthorized biography was held in Koussevitzky v Allen,
Towne & Heath, Inc. (1947) 188 Misc 479, 68 NYS2d 779, affd 272 App Div 759, 69 NYS2d 432, app den 272 App Div 794, 71
NYS2d 712, not to constitute a violation of the New York privacy statute justifying its restraint by injunction, the court saying
that since the biography itself did not fall within the restraint of the statute, neither did the advertisements or announcements
thereof, since they were merely incidental to the publication itself.

Cases:
Defendant video distributor's use of new artwork depicting likeness of plaintiff former actress as she appeared in films she
had starred in 1950's was protected activity against which action for invasion of privacy would not lie, where new releases
of videotapes of films enjoyed First Amendment protection and use of likeness in advertising was incidental to protected
publication of films on video. Page v. Something Weird Video, 960 F. Supp. 1438, 25 Media L. Rep. (BNA) 1489, 41
U.S.P.Q.2d (BNA) 1811 (C.D. Cal. 1996).
Use of a person's name and likeness to advertise a novel, play, or motion picture concerning that individual is not actionable as
an infringement of the right of publicity. Cal. Civ. Code § 3344(a). de Havilland v. FX Networks, LLC, 2018 WL 1465802
(Cal. App. 2d Dist. 2018).
First Amendment precluded plaintiff from prevailing on claim of commercial appropriation of identity against makers of film
that contained child character who was similar in name and appearance to plaintiff as a child, even though filmmakers used
photographs of child character to advertise film; film was a work of fiction and imagination, events depicted in film did not
actually happen to plaintiff, and film revealed no private facts about plaintiff. U.S.C.A. Const. Amend. 1; West's Ann. Cal.
Civ. Code § 3344. Polydoros v. Twentieth Century Fox Film Corp., 67 Cal. App. 4th 318, 79 Cal. Rptr. 2d 207 (2d Dist. 1997).
Plaintiff Vietnam veteran had no cause of action for "invasion of privacy" where his photograph, taken during war, was used
to advertise defendants' multi–volume series of illustrated books about war, in that defendants did not intrude upon plaintiff's
solitude or seclusion, photo depicted plaintiff in clearly public setting, and there was no allegation that plaintiff had been placed
in false light; however, plaintiff stated cause of action for "misappropriation of likeness" where, although he could be considered
newsworthy public figure for purpose of photo at issue, photo was not used in any book in series but solely as commercial
advertisement. Tellado v Time-Life Books, Inc. (1986, DC NJ) 643 F Supp 904, 13 Media L R 1401 (applying NJ law).
See Welch v Group W. Productions, Inc. (1987) 138 Misc 2d 856, 525 NYS2d 466, § 4[b].
Use of former husband's photograph in television commercials for magazine issue containing former wife's article describing
their domestic life was not invasion of privacy or violation of New York statute prohibiting use of likeness in trade without
consent, even though husband did not consent, where photograph was used in conjunction with article by public figure in
feminist movement, and where advertisement for purpose of advertising article shared privilege enjoyed by article. Friedan
v Friedan (DC NY) 414 F Supp 7 (applying New York law).
[Top of Section]
[END OF SUPPLEMENT]

RESEARCH REFERENCES
A.L.R. Library
• A.L.R. Quick Index, Privacy
• Invasion of Privacy by Use of Plaintiff's Name or Likeness in Advertising—First Amendment Cases, 15 A.L.R.7th
Art. 6
• Expectation of Privacy in and Discovery of Social Networking Web Site Postings and Communications, 88 A.L.R.6th
319
• Preemption of State Law Claim by Federal Copyright Act—Nature or Type of Claim Asserted, 77 A.L.R.6th 543
• Preemption of State Law Claim by Federal Copyright Act—General Views and Jurisdictional Issues, 76 A.L.R.6th 289
• Invasion of Privacy by Using or Obtaining E-Mail or Computer Files, 68 A.L.R.6th 331
• Invasion of Privacy by Internet or Website Postings, 54 A.L.R.6th 99
• Liability of Employer, Supervisor, or Manager for Intentionally or Recklessly Causing Employee Emotional Distress
—Defamation, Invasion of Privacy, and Employer's Alleged Misuse of Company Procedures, 38 A.L.R.6th 541
• First Amendment Protection Afforded to Comic Books, Comic Strips, and Cartoons, 118 A.L.R.5th 213
• False light invasion of privacy—disparaging but noncriminal depiction, 60 A.L.R.4th 51
• False light invasion of privacy—neutral or laudatory depiction of subject, 59 A.L.R.4th 502
• False light invasion of privacy—accusation or innuendo as to criminal acts, 58 A.L.R.4th 902
• False light invasion of privacy—defenses and remedies, 57 A.L.R.4th 244
• False light invasion of privacy—cognizability and elements, 57 A.L.R.4th 22
• Name appropriation by employer or former employer, 52 A.L.R.4th 156
• Right to publicize or commercially exploit deceased person's name or likeness as inheritable, 10 A.L.R.4th 1193
• Invasion of privacy by use of a picture of plaintiff's property for advertising purposes, 87 A.L.R.3d 1279
• Invasion of privacy by sale or rental of list of customers, subscribers, or the like, to one who will use it for advertising
purposes, 82 A.L.R.3d 772
• Waiver or loss of right of privacy, 57 A.L.R.3d 16
• Unsolicited mailing, distribution, house call, or telephone call as invasion of privacy, 56 A.L.R.3d 457
• Uninvited entry into another's living quarters as invasion of privacy, 56 A.L.R.3d 434
• Invasion of privacy by radio or television newscast, 56 A.L.R.3d 386
•
Invasion of privacy by use of plaintiff's name or likeness for nonadvertising purposes, 30 A.L.R.3d 203
• Invasion of right of privacy by merely oral declarations, 19 A.L.R.3d 1318
• Invasion of privacy by publication dealing with one other than plaintiff, 18 A.L.R.3d 873
• Investigations and surveillance, shadowing and trailing, as violation of right of privacy, 13 A.L.R.3d 1025
• Eavesdropping as violating right of privacy, 11 A.L.R.3d 1296
•
Legal aspects of television, 15 A.L.R.2d 785
•
Right of privacy, 168 A.L.R. 446

• Rights and remedies as between originator of uncopyrighted advertising plan or slogan, or his assignee, and another
who uses or infringes the same, 157 A.L.R. 1436
• Conflict of laws, with respect to trademark infringement or unfair competition, including the area of conflict between
Federal and state law, 148 A.L.R. 139
•
Right of privacy, 138 A.L.R. 22
• Law of copyright as applied to contract forms or plans, 119 A.L.R. 1254
• Validity and effect of contract, not connected with transfer of any business or professional interest, purporting to grant
exclusive right to use one's name or likeness for advertising purposes, 101 A.L.R. 492
• Validity and effect of contract, unconnected with transfer of any business or professional interest, purporting to grant
exclusive right to use one's name or likeness for advertising purposes, 101 A.L.R. 492
• Directory, or compilation in nature of a directory, as subject of copyright, 26 A.L.R. 585
• Renewal of copyright where author is dead, 19 A.L.R. 295
• Parody as Trademark or Tradename Dilution or Infringement, 179 A.L.R. Fed. 181
•
Parody as trademark or tradename infringement, 92 A.L.R. Fed. 25
Legal Encyclopedias
• Am. Jur. 2d, Privacy §§ 9, 35–38
Treatises and Practice Aids

• McCarthy, The Rights of Publicity and Privacy 2d
Trial Strategy
• Invasion of privacy by false light publicity, 6 Am. Jur. Proof of Facts 3d 585
Forms

• 13 Am. Jur. Legal Forms 2d, Name § 182:3413 Am. Jur. Legal Forms 2d, Name § 182:34
Law Reviews and Other Periodicals

• Tortious Invasion of Privacy. 4 William Mitchell L. R. 163, 1975
Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1 Earlier general treatment of the right of privacy in 138 ALR 22 at page 50, 168 ALR 446 at page 454, 14
A.L.R.2d 750, need not be further consulted on the questions treated herein.
2 Generally, as to invasion of privacy by a publication dealing with one other than the plaintiff, see 18 A.L.R.3d
873.
3 Statutory law is not represented herein except as it is reflected in reported decisions of the courts, and hence
the reader is cautioned to consult the current statutes of his jurisdiction.
Although the annotation is not inherently limited to civil actions, it should be noted that even though a New
York statute makes invasion of privacy for purposes of advertising or trade a criminal offense, apparently
only two prosecutions have reached courts of record (People ex rel. Maggio v Charles Scribner's Sons (1954)
205 Misc 818, 130 NYS2d 514, and People ex rel. Stern v Robert R. McBride & Co. (1936) 159 Misc 5,
288 NYS 501) and in neither case was a conviction obtained.
4 § 3, infra.
5 § 4[a], infra.
6 § 4[b], infra.
7 § 5, infra.
8 § 6, infra.
9 § 7, infra.
10 § 8, infra.
11 § 9[a], infra.
12 § 9[b], infra.
13 § 10[a], infra.
14 § 10[b], infra.
15 § 11[a], infra.
16 § 11[b], infra.
17 § 11[b], infra.
18 § 12[a], infra.
19 § 12[b], infra.
20 § 13, infra.
1 § 14, infra.
2 § 15, infra.
3 § 16, infra.
4 § 17, infra.

5 § 18, infra.
6 § 19, infra.
7 § 20[a], infra.
8 § 21[a], infra.
9 § 21[b], infra.
10 § 21[c], infra.
11 § 22, infra.
12 It has been pointed out that many "right of privacy" cases could in fact have been brought as "libel per quod"
actions, and that several have been brought on both grounds. Time, Inc. v Hill (1967) 385 US 374, 17 L
Ed 456, 87 S Ct 534. Although not usually thought of in terms of "right of privacy," all libel cases concern
public exposure by false matter, but the primary harm being compensated is damage to reputation. Time v
Hill (US) supra. On the other hand, in the "right of privacy" cases the primary damage is the mental distress
from having been exposed to public view, although injury to reputation may be an element bearing upon
such damage, and moreover the published matter need not be defamatory, on its face or otherwise, and might
even be laudatory and still warrant recovery. Time v Hill (US) supra.
13 §§ 13 et seq., infra.
14 §§ 9 et seq., infra.
15 § 3, infra.
16 § 8, infra.
17 The right of privacy may be defined as the unwarranted appropriation or exploitation of one's personality, the
publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion
into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation
to a person of ordinary sensibilities. 138 ALR 22, 168 ALR 446, 14 A.L.R.2d 750.
18
The United States Supreme Court noted in Time, Inc. v Hill (1967) 385 US 374, 17 L Ed 456, 87 S Ct
534, that it has been said that a "right of privacy" has been recognized at common law in 30 states and the
District of Columbia, and by statute in four states. See also the dissenting opinion of Fortas, J., in Time v
Hill (US) supra.
19 Authorities recognizing the right of privacy will be found in 138 ALR 22 at page 24, 168 ALR 446 at page
448, 14 A.L.R.2d 750 at page 753 § 2.
20 Adopting the view that there is no right of privacy recognized by the law as an independent basis of a cause
of action, the court in Henry v Cherry & Webb (1909) 30 RI 13, 73 A 97, 24 LRA NS 991, held that there
could be no recovery of damages in an action of trespass vi et armis, based upon an invasion of the alleged
right of privacy, in an action against a merchant who published an advertisement in a newspaper, containing
a picture of the plaintiff seated in an automobile with other persons, with the words, beneath the picture,
"Only § 10.50" followed by the words: "The auto coats worn by above autoists are waterproof, made of fine
quality silk mohair—$10.50—in four colors," although this publication was made without the knowledge or
consent of the plaintiff, tended to and did make plaintiff the object of scorn, ridicule, and public comment,
and caused him great mental anguish.
And see Judevine v Benzies-Montanye Fuel & Warehouse Co. (1936) 222 Wis 512, 269 NW 295, 106
ALR 1443 (criticized in Martin v Outboard Marine Corp. 15 Wis 2d 452, 113 NW2d 135), wherein the
Wisconsin Supreme Court refused to permit recovery against a defendant who distributed handbills offering
plaintiff's account for sale to the highest bidder.
Massachusetts has avoided recognizing any right of privacy. See Lahr v Adell Chemical Co. (1962, CA1
Mass) 300 F2d 256; Brauer v Globe Newspaper Co. (1966) 351 Mass 53, 217 NE2d 736.
1
Roberson v Rochester Folding Box Co. (1902) 171 NY 538, 64 NE 442, 59 LRA 478, infra § 21[a].

2
New York Civil Rights Law § 51. New York Civil Rights Law, § 50, makes such use of a name,
picture, or portrait a misdemeanor. However, prosecutions thereunder are rare. See § 1[a], footnote 3.
3 § 3, supra.
4 Under the New York statute, it is necessary to allege that plaintiff's name was used without his consent for
the purpose of trade; an allegation that plaintiff was caused injury to his feelings is insufficient to meet the
requirements of the statute. Association for Preservation of Freedom of Choice, Inc. v Nation Co. (1962)
35 Misc 2d 42, 228 NYS2d 628.
5
But see Donahue v Warner Bros. Pictures Distributing Corp. (1954) 2 Utah 2d 256, 272 P2d 177, infra
§ 4[b], involving the same motion picture.
6 The court held that an actionable right of privacy existed under the common law of Oklahoma, although
such right was still unannounced by the courts of that state.
7
See Donahue v Warner Bros. Pictures, Inc. (1952, CA10 Utah) 194 F2d 6, supra § 4[a], involving the
same motion picture.
8 § 3, supra.
9
For a similar type of advertisement making use of a news item, see Flores v Mosler Safe Co. (1959) 7
NY2d 276, 196 NYS2d 975, 164 NE2d 853, infra § 20[a].
10
It was said in Fairfield v American Photocopy Equipment Co. (1955) 138 Cal App 2d 82, 291 P2d 194,
infra § 13, that the motives of a person charged with invading the right of privacy are not material and that
malice is not an essential element of violation of the right.
19 Attention is also called to Dache v Abraham & Straus (1942 Sup) 39 NYS2d 981, app dismd 268 App
Div 929, 51 NYS2d 856, affd 269 App Div 692, 54 NYS2d 400, reh and app den 269 App Div 755, 54
NYS2d 727, involving a preliminary or procedural phase, and not the merits, of an action to recover under
the New York privacy statute for the use of the name of the plaintiff, a famous hat designer, in advertising the
defendant's goods. See also John-Frederics, Inc. v Abraham & Straus (1945) 269 App Div 693, 53 NYS2d
658, revg (Sup) 39 NYS2d 979, and reh and app den 269 App Div 756, 54 NYS2d 726, involving a libel
action by another hat designer, growing out of the same advertisement.
20 § 3, supra.
1 The United States Supreme Court, in remanding for a new trial, held that the New York statute is precluded
by the constitutional protection of free speech and press from being applied to redress false reports of matters
of public interest in the absence of proof that the defendant published the report with the knowledge of his
falsity or in reckless disregard of the truth.
2 The purported letter used in the advertising scheme in this case was as follows: "Dearest: Don't breathe
it to a soul, but I'm back in Los Angeles and more curious than ever to see you. Remember how I cut up
about a year ago? Well, I'm raring to go again, and believe me I'm in the mood for fun. Let's renew our
acquaintanceship and I promise you an evening you won't forget. Meet me in front of Warner's Downtown
Theatre at 7th and Hill on Thursday. Just look for a girl with a gleam in her eye, a smile on her lips and
mischief on her mind! Fondly, Your ectoplasmic playmate, Marion Kerby."
3 For such use in newspapers and other publications, see § 21[b], infra; for such use on televisison or in motion
pictures, see § 21[c], infra.
4 This decision, which preceded the adoption of the New York privacy statute, is generally recognized as the
decision which led the New York legislature to enact the provisions which prohibit the use of a person's
name or likeness for advertising purposes or for purposes of trade without his consent.
5
Time, Inc. v Hill (1967) 385 US 374, 17 L Ed 456, 87 S Ct 534.
6 See § 7, supra for the rules applying to incidental uses.

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23 A.L.R.3d 865 (Originally published in 1969)