New York

The right to privacy in New York is governed solely by a misappropriation statute. N.Y. Civ. Rights Law §§ 50, 51.

Intrusion: An HBO camera crew filmed models posing naked on New York City streets for a program called "Real:Sex." A bystander who saw a crowd gathered around the models stopped to see what was happening, was filmed as part of the crowd, and appeared on the program in introductory footage as part of the crowd and in a close-up. She had no invasion of privacy claim because she voluntarily joined a crowed gathered at a newsworthy event, and her embarrassment alone could not support an invasion claim. Gaeta v. Home Box Office, 645 N.Y.S.2d 707 (N.Y. Civ. Ct. 1996).

Television crew members who entered a restaurant, without consent and with cameras rolling, after a health code violation against the restaurant was announced were guilty of trespass. Even though the restaurant was open to the public, the elevision crew had no intention of buying food or beverages there. The court found the crews presence to be noisy and obtrusive and said patronizing a restaurant does not carry with it an obligation to appear on television. Le Mistral Inc. v. CBS, 402 N.Y.S.2d 815 (N.Y. App. Div. 1978).

A television camera crew intruded on private property when it videotaped unauthorized interviews with minors at an institution for dependent and neglected children. Quinn v. Johnson, 381 N.Y.S.2d 875 (N.Y. App. Div. 1976).

Consent to being photographed may be implied by a highly public lifestyle, which makes the person a subject of public interest. However, a photographer was found to have harassed Jackie Onassis by constantly tailing her, jumping about to position himself for photos, bribing doormen for a chance to get closer to her, and romancing family servants to learn her schedule. Galella v. Onassis, 487 F.2d 896 (2d Cir. 1973). Nine years later, the photographer was found in contempt of an earlier injunction against such behavior. Galella v. Onassis, 533 F. Supp. 1076 (S.D.N.Y. 1982).

A television interview with a mentally impaired criminal defendant, who was found incompetent to stand trial, was intrusive because even though the defendant consented to the interview, his doctor did not. Delan v. CBS, 445 N.Y.S.2d 898 (N.Y. App. Div. 1981), modified, 458 N.Y.S.2d 608 (N.Y. App. Div. 1983).

A television crew that was invited by a humane society investigator to accompany him could not claim that either the newsworthiness of the officials search of a house or custom implied the consent of the homeowner for the media to enter the house. A court upheld the homeowner s right to bring trespass charges against the media. Anderson v. WROC-TV 441 N.Y.S.2d 220 (N.Y. Sup. Ct. 1981).

By accompanying federal agents on a search of an apartment, a television news crew may have become a "state actor," and thus, may have violated the constitutional privacy rights of a woman and her son. Ayeni v. CBS Inc., 848 F. Supp. 362 (E.D.N.Y. 1994).

Misappropriation: A man who had been held hostage alleged that a magazine photograph essay falsely reported that a new play portrayed his familys experience. The U.S. Supreme Court held that the man would have to prove that the magazine published the essay with knowledge of falsity or with reckless disregard for the truth. Time, Inc. v. Hill, 385 U.S. 374 (1967).

Radio personality Howard Stern sued an Internet services company for using his photograph -- for which he had posed -- without permission in an advertisement for an on-line bulletin board service set up for debating Sterns political candidacy. Stern had no misappropriation claim because the primary goal of the advertisement was to inform potential subscribers about the contents of the on-line service, and the use of Sterns photograph was incidental. Stern v. Delphi Internet Servs., 626 N.Y.S.2d 694 (N.Y. Sup. Ct. 1995).

The photograph of a woman who was HIV-positive and afflicted with AIDS-related illnesses was used to illustrate a newspaper article about her, and in the article she was described as having AIDS, rather than as being HIV-positive. She had no claim for the unauthorized use of her likeness for advertising purposes against the newspaper because discrimination against AIDS or HIV-positive patients was a matter of public concern, and state laws relating to the confidentiality of AIDS and HIV diagnoses "apply to health care providers and certain others, not the news media." Cruz v. Latin News, 627 N.Y.S.2d 388 (N.Y. App. Div. 1995).

The privacy rights of a woman who was photographed at a psychiatric facility walking with the mother implicated in a well-publicized child-beating death were not violated because the photograph was related to a news story about a matter of public interest. The court also rejected an intentional infliction of emotional distress claim against the photographer, who used a telephoto lens. Hwell v. New York Post Co., 612 N.E.2d 699 (N.Y. 1993).

A doctor won $75,700 for her identified depiction in the background of a picture in a medical centers promotional calendar. Beverley v. Choices Womens Medical Center, Inc., 587 N.E.2d 275 (N.Y. 1991).

A couple whose family photograph illustrated a magazine article about caffeine and fertility could not sue for misappropriation, even though the photograph was taken years earlier for another purpose. The court held there was a link between the newsworthy article about fertility and the picture of a large family. Finger v. Omni Publications International Ltd., 566 N.E.2d 141 (N.Y. 1990).

A man misidentified in a photograph as the person berating the mayor had no cause of action because the picture was newsworthy and was not used for advertising purposes. Bytner v. Capital Newspapers, 492 N.E.2d 1228 (N.Y. 1986).

The photograph of a professional model in a bomber jacket in a column about new products was not misappropriation because it was published to illustrate a legitimate public interest, not for advertising or trade purposes. Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984).

A photograph of a nude woman and child taken from behind might be misappropriation if the woman and child were identifiable from that position. Cohen v. Herbal Concepts, 472 N.E.2d 307 (N.Y. 1984).

A newspapers publication of a photograph of a black man, taken in a public place, to illustrate an article on the upward mobility of blacks was not misappropriation because his name was not used, and the photograph was published for illustrative, not commercial purposes. But the photographer and agency that supplied the picture to the newspaper were liable under a state misappropriation law. The law subsequently was amended to protect freelancers supplying photographs for use as news. Arrington v. New York Times, 433 N.Y.S.2d 164 (N.Y. App. Div. 1980), modified, 55 N.Y.2d 433 (1982), cert. denied, 459 U.S. 1146 (1983).

Aides to Sen. Joseph McCarthy could not claim misappropriation based on a film about McCarthy because they did not prove their portrayals were false and published with knowledge of falsity or reckless disregard for the truth. Cohn v. National Broadcasting Co., Inc., 414 N.Y.S.2d 906 (N.Y. App. Div. 1979), affd, 50 N.Y.2d 885 (N.Y.), cert. denied, 449 U.S. 1022 (1980).

The use of an athletes photograph was found merely incidental to a magazine advertisement because the magazine carried accurate articles about the athlete. Namath v. Sports Illustrated, 48 A.D.2d 487 (N.Y. App. Div. 1975), affd, 352 N.E.2d 584 (N.Y. 1976).

A magazine cover depicting a spectator watching a parade was not misappropriation because the parade was a newsworthy event. Murray v. New York Magazine Co., 267 N.E.2d 256 (N.Y. 1971).

The use of a photograph of an actress in an advertisement for a magazine, which was republished from an article about her, was incidental and not misappropriation. Booth v. Curtis Publishing Co., 223 N.Y.S.2d 737 (N.Y. App. Div. 1962), affd, 182 N.E.2d 812 (N.Y. 1962).

Consent obtained from his agent precluded a model from suing Nintendo for using his photograph on video game packages; the misappropriation statutes consent provision does not encompass the full requirements of a legally binding contract. Cory v. Nintendo of America Inc., 592 N.Y.S.2d 6 (N.Y. App. Div. 1993).

A newspapers use of a reproduced cover featuring an activist to solicit subscriptions did not misappropriate the activists image. Velez v. VV Publishing Corp., 524 N.Y.S.2d 186 (N.Y. App. Div.), cert. denied, 529 N.E.2d 425 (N.Y. 1988).

An episode of Howard Sterns television show included a skit in which a married woman gave Stern a massage, and her husbands photograph appeared during the broadcast. The husbands misappropriation claim was dismissed because the sworthiness" exception extends to comedic performances. Glickman v. Stern, 19 Med. L. Rptr. 1769 (N.Y. Sup. Ct. 1991), affd, 592 N.Y.S.2d 581 (N.Y. App. Div. 1992).

The use of an actors old commercial in a television show about classic commercials was newsworthy and was not an advertising or trade use. Welch v. Group W Productions, 525 N.Y.S.2d 466 (N.Y. Sup. Ct. 1987), affd, 540 N.Y.S.2d 121 (N.Y. App. Div. 1989).

A newspaper illustrated an article about young drug dealers with a drawing that a freelance artist based on posed photographs of youths not involved in the drug trade; no misappropriation claim existed because there was no showing that the newspaper was at fault. Quezada v. Daily News, 501 N.Y.S.2d 971 (N.Y. App. Term 1986).

The publication of a photograph of nude sunbathers in a guide book on nude beaches was not misappropriation because the photograph was taken with the consent of the sunbathers and was used to illustrate a book about a matter of public interest. Creel v. Crown Publisher, 496 N.Y.S.2d 219 (N.Y. App. Div. 1985).

A man who alleged his photograph appeared in a magazine for homosexuals, with false statements attributed to him, stated both misappropriation and libel claims. Palmisano v. Modernismo Publications, Ltd., 470 N.Y.S.2d 196 (N.Y. App. Div. 1983).

A mentally disabled patient who appeared briefly in a documentary about institutionalization had no misappropriation claim regardless of whether there was valid consent because the appearance was incidental, and the documentary was of public interest. Delan v. CBS, Inc., 458 N.Y.S.2d 608 (N.Y. App. Div. 1983).

The female boxer who alleged that another woman was identified as her in Celebrity Skin magazine stated a misappropriation claim because, although the nude picture of her would be newsworthy, the picture of a woman misidentified as her would not be newsworthy. To prevail, the boxer would be required to prove knowledge of falsity or reckless disregard for the truth. Davis v. High Society Magazine, Inc., 457 N.Y.S.2d 308 (N.Y. App. Div. 1982).

A court overturned a preliminary injunction awarded a well-known model seeking to stop distribution of an edition of Celebrity Skin magazine containing nude photographs of her because money damages could compensate her for any harm, and she did not establish a clear right to relief for the alleged misappropriation. Hansen v. High Society Magazine, Inc., 429 N.Y.S.2d 552 (N.Y. App. Div. 1980).

Displaying a womans photograph during a talk show did not violate the misappropriation statute because the broadcast about relationships between mothers and daughters was of public interest. Wallace v. WWOR-TV Inc., 21 Med. L. Rptr. 1959 (N.Y. Sup. Ct. 1993).

A model who gave written consent to his photographer was barred from bringing a misappropriation claim when the photographs were used in advertisements. Delaney v. Newsday, 18 Med. L. Rptr. 1885 (N.Y. Sup. Ct. 1991).

The photograph of a "disappeared" agent and his wife did not misappropriate her image because the photograph had a "real relationship" to an article of public interest. Moreau v. New York Times Co., 15 Med. L. Rptr. 1623 (N.Y. Sup. Ct. 1988).

The use of a boys photograph, without consent, in a book was not actionable because the public had an interest in the subject matter: a childs initiation into an education system through enrollment in a preschool program. McWhir v. Krementz, 15 Med. L. Rptr. 1367 (N.Y. Sup. Ct. 1987).

Footage of a wet T-shirt contestant on cable television was not misappropriation because coverage of the contest was newsworthy and was not for trade or commercial purposes, even though the T-shirts featured a cigarette logo. McCarville v. American Tobacco Co., 11 Med. L. Rptr. 2344 (N.Y. Sup. Ct. 1985).

A construction worker depicted holding hands with a coworker as part of a news broadcast about "Coupls in Love in New York" had no misappropriation claim because romance is of public interest, and the mans appearance was only incidental. DeGregorio v. CBS, 473 N.Y.S.2d 922 (N.Y. Sup. Ct. 1984).

When a photograph of a celebrity "look-alike," who is an instantly recognizable public figure and who has not consented to the use of her likeness for promotional purposes, is published for commercial use in an advertisement, the celebrity has sufficient grounds for a misappropriation claim. Onassis v. Christian Dior, 472 N.Y.S.2d 254 (N.Y. Sup. Ct. 1984).

A female police officer depicted during a televison news segment about premenstrual syndrome had no misappropriation claim because the use was incidental and introduced a report of public interest. Ryan v. ABC, Inc., 9 Med. L. Rptr. 2111 (N.Y. Sup. Ct. 1983).

Models who alleged that a photograph taken for their personal use was included without their consent in an article about how couples endure a womans rape stated a misappropriation claim. Mayers v. Michals, 9 Med. L. Rptr. 1484 (N.Y. Sup. Ct. 1983).

A newspaper that published a photograph of men ogling a woman with an article about a feminist rally later republished the photograph to illustrate an article about psychological rape. The men had no misappropriation claim regarding the second article because the photograph depicted a precise activity discussed in a report of public interest. Bourgeau v. New York News, Inc., 5 Med. L. Rptr. 1799 (N.Y. Sup. Ct. 1979).

The publication of a photograph of a murder suspect in a gubernatorial candidates campaign commercial was not misappropriation because it was not published for trade purposes. Davis v. Duryea, 417 N.Y.S.2d 624 (N.Y. Sup. Ct. 1979).

Babe Ruths heirs had no claim over the use of Ruths likeness in a calendar because the statutory right to privacy does not survive death, and New York does not recognize a common-law right to privacy. Pirone v. Macmillan Inc., 894 F.2d 579 (2d Cir. 1990).

A wrestling magazine stapled posters of wrestlers into the magazine. An appellate court asked the trial court to determine whether the poster photographs were included for trade purposes, or mainly for public interest purposes. The factors to be considered included the nature of the photos, their relationship to the magazines contents, the ease with which they could be detached, their suitability as separate products, and how the posters were marketed. Titan Sports Inc. v. Comics World Corp., 870 F.2d 85 (2d Cir. 1989).

Republication of a magazine cover in an advertisement for subscriptions was found to be an incidental use and not a misappropriation. Lerman v. Flynt Distributing, 789 F.2d 164 (2d Cir.), cert. denied, 479 U.S. 932 (1986).

A magazine incorrectly identified actress Jackie Collins Lerman as the woman in a nude photograph. Although the photograph was newsworthy, this privilege did not apply because the identification accompanying the photograph was false. Nonetheless, no recovery of damages was allowed because there was no evidence that the magazine knew the identification probably was false. Lerman v. Flynt Distributing Co., 745 F.2d 123 (2d Cir. 1984), cert. denied, 471 U.S. 1054 (1985).

A court refused to dismiss a misappropriation claim filed by an actress against a sexually explicit cable program that edited her commercial for "crispbread" to make it appear she was engaging in sexual acts. Her false light claim was dismissed because false light is not recognized in New York. Geary v. Goldstein, 831 F. Supp. 269 (S.D.N.Y. 1993).

A woman allegedly depicted as a prostitute in the opening credits of the film Sea of Love had no misappropriation claim because her appearance was fleeting and incidental. The court also held that the mere publication of private, personal facts did not give rise to an intentional infliction of emotional distress claim. Preston v. Martin Bregman Productions Inc., 19 Med. L. Rptr. 1057 (S.D.N.Y.1991).

Hustler magazine was ordered to pay a woman $30,000 for publishing a nude photograph of her; the magazine recklessly disregarded the truth of an alleged consent form. The court also found private facts and false light violations, although New York does not recognize these causes of action. Gallon v. Hustler Magazine Inc., 732 F. Supp. 322 (N.D.N.Y. 1990).

A court did not address Woody Allens misappropriation claim regarding a look-alike model in an advertisement but instead enjoined further use of the advertisement under the Lanham Act because of likely consumer confusion. Allen v. Mens World Outlet Inc., 679 F. Supp. 360 (S.D.N.Y. 1988).

An actress who appeared nude in a film did not have a misappropriation claim over a magazines use of an image taken from the film because the image was newsworthy. Ann-Margret v. High Society Magazine, Inc., 498 F. Supp. 401 (S.D.N.Y. 1980).

A classical guitarist was entitled to relief under the misappropriation statute when a record company put a picture of another man, dressed in a tuxedo jacket but without trousers, on his album jacket. Jumez v. ABC Records, Inc., 3 Med. L. Rptr. 2324 (S.D.N.Y. 1978).