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Photographs illustrating newsworthy topic not actionable

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  1. Libel and Privacy

    NMU         NEW YORK         Privacy         Feb 23, 2000    

Photographs illustrating newsworthy topic not actionable

  • A magazine that used photographs of a young model to illustrate a discussion about teen drinking and sex did not violate the model’s privacy rights under New York law.

A 14-year-old aspiring model who posed for YM magazine photographers cannot recover under the New York Civil Rights Law for publication of her photograph accompanying a letter from an unidentified girl seeking advice after drinking alcohol and having sex with three men, according to a ruling from the state’s highest court in mid-February.

Jamie Messenger consented to the photo shoot, but the magazine did not obtain written consent from her parent or legal guardian. YM, a magazine for teenage girls, then used the photos to illustrate the “Love Crisis” column in its June/July 1995 issue, where the letter from the girl seeking advice about drinking and sex was published.

The New York Court of Appeals in Albany found that when a person’s “likeness is used to illustrate a newsworthy article,” there is no violation of the New York Civil Rights law “even if the use of the likeness creates a false impression.” The New York Civil Rights Law governs the right to privacy, including claims of commercial misappropriation, in the state.

The court determined that the law must be “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.” Furthermore, the law is inapplicable to reports of newsworthy events or matters of public interest, the court held. Finally, the court found that newsworthiness should be broadly construed, and includes “not only descriptions of actual events” but also articles “concerning political happenings, social trends or any subject of public interest.”

The court noted that it does not matter whether the person whose likeness appears “is a public figure or a private person. Rather the analysis centers on whether the photograph bears a real relationship to a newsworthy article and is not an advertisement in disguise. Where those requirements are met, there is no cause of action under the Civil Rights Law.”

Messenger sued the magazine in federal court in New York City, alleging that YM used her photographs for commercial gain without obtaining the requisite consent. The federal trial court found that the newsworthiness defense to her claims — that the photographs had been used to illustrate a newsworthy column — did not apply where the juxtaposition of a photograph to an article created “substantially fictionalized” implications. Subsequently, a jury awarded her $100,000 in damages.

YM appealed to the U.S. Court of Appeals in New York City (2nd Cir.), which certified to the highest court in New York the question regarding interpretation of the New York Civil Rights Law.

(Messenger v. Gruner+Jahr Printing and Publishing; Media Counsel: Robert Sugarman, New York City)

© 2000 The Reporters Committee for Freedom of the Press

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