Joseph Finger v Omni Publications
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[edit] 1 Joseph Finger et. Al v Omni Publications Int.
Case Name: Joseph Finger et. Al v Omni Publications Int.
Key Words: relation between press reporting and portrait use
Court: New York Court of Appeals
Country: USA
Citation: 77 N.Y.2d 138, 566; N.E.2d 141, 564 N.Y.S.2d 1014 (1990)
Date: 27. December 1990
Case No.: 3 No. 259
Importance: The use of a portrait and name of a real person for the purposes of advertising or trade is subject to authorization under § 50 New York Civil Law. However, newsworthy articles do not fall into that category. Neither do accompanying pictures of persons that have a “real” relationship with the article. The Court accepted such a relationship in the case of a photograph of a large family where all the children were born without scientific aid, and an article about caffeine-induced fertility enhancement.
Facts: Claimants Joseph and Ida Finger have six children. The June 1988 edition of the magazine published by the defendant contained an article about research carried out at the University of Philadelphia into the use of caffeine as a method to improve male fertility. It was headlined: “Want a large family? Maybe your sperm needs a cup of java in the morning. Tests revealed that caffeine-spritzed sperm swim faster, which may increase the chances for in vitro fertilization.” A photograph depicting two adults and six “attractive and apparently healthy children”, i.e. the claimants’ children, accompanied the article. None of the children was conceived using any sort of fertility enhancement. The claimants sued for damages
[edit] 2 Decision and Reasoning
Under §§ 50, 51 New York Civil Rights Law damages can be awarded to claimants whose portrait has been used for purposes of advertising and trade.
The Court observed that this statute has to be strictly limited to “non-consensual commercial appropriations of the name, portrait or picture of a living person” for “advertising purposes or for the purposes of trade.” (*Arrington v New York Times Co., 55 NY2d 433, 435)
The statute does not define these purposes. Rather than giving a definition, the New York Court of Appeals has indicated what would be excluded. This includes “publications concerning newsworthy events or matters of public interest”. (*Stephano v News Group Publications, 64 NY2d 174, 184)
A picture illustrating an article on a matter of public interest is not considered to be used for purposes of trade or advertising unless one of two exceptions apply:
- It has no real relationship to the article; or
- The article is an advertisement in disguise. (Murray v New York Mag., 27 NY2d 406, 409)
A third exception, the creation of an impression that is not a true representation of the facts has not been accepted. (See however dissenting opinion of Bellacosa J. in *Messenger v Gruner, 2000 NY Int. 0001 of Feb. 17, 2000)
In the instant case the Court of Appeals considered that the topic of the article was “having a large family”, and that the picture showed a large family. In these circumstances they did not want to interfere with the editorial judgments of the press, and dismissed the case.
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