Photo used to illustrate story does not violate privacy rights

From the Spring 2000 issue of The News Media & The Law, page 18.

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, the state’s high court ruled in mid-February.

The court’s decision came after the U.S. Court of Appeals in New York (2nd Cir.) asked it to determine the model’s rights under a New York civil rights law.

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Jamie Messenger, a 14-year-old aspiring model, agreed to a photo shoot for YM, a magazine for teenage girls. The magazine did not get the consent of her parent or legal guardian.

The magazine then used the photos to illustrate the “Love Crisis” column in its June/July 1995 issue. The column began with a letter from a 14-year-old girl identified only as “Mortified,” who wrote that she got drunk at a party and had sex with her 18-year-old boyfriend and two of his friends. A pull-out quotation above the column stated, “I got trashed and had sex with three guys.”

Three photographs of Messenger were used, including one showing her hiding her face in embarrassment as three boys look on. The photo captions repeat the columnist’s advice, such as “Wake up and face the facts: You made a pretty big mistake.”

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, in violation of a New York civil rights law meant to protect against commercial appropriation of a person’s image or likeness.

YM countered that the civil rights law specifically exempts newsworthy uses of image, because journalism is not considered the type of commercial activity the statute is meant to control.

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 asked the highest court in New York to first determine whether the state’s civil rights law is violated when a person’s likeness is used in a substantially fictionalized way, even in conjunction with a newsworthy column.

On February 17, the New York Court of Appeals in Albany ruled 6-1 that use of a likeness to illustrate a newsworthy article, even if such use creates a false impression, does not violate the statute.

The court noted that the statute must be narrowly construed and recoveries under it must be “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.” It is well established that because of constitutional free-speech concerns, the law is inapplicable to reports of newsworthy events or matters of public interest, the court said.

Newsworthiness should be broadly construed to include “not only descriptions of actual events” but also articles “concerning political happenings, social trends or any subject of public interest,” the court held. Newsworthiness depends solely on the content of the article, and is not negated by any alleged motive to increase circulation, according to the court.

If the use is newsworthy, there can be no liability under the statute unless the picture has no real relationship to the article or the article is an advertisement in disguise, the court noted. This is even true if use of the person’s image could be seen as falsifying or fictionalizing the person’s relation to the article, the court found. For instance, a family picture used to illustrate a story on caffeine-aided in vitro fertilization, even though none of the children were conceived through such a method, was sufficiently related to the newsworthy article to avoid liability under the statute.

Messenger had argued that even within this standard, however, a publisher can be liable if use of an image creates a “substantially fictionalized” implication. For example, a book publisher had violated the statute by creating a largely fictitious biography of a baseball player, Messenger argued.

But the court said that in that case, the book was filled with “imaginary incidents, invented dialogue, dramatized portrayals and manipulated chronologies,” and that no author had conducted interviews with anyone who even knew the player. A work can be “so infected with fiction, dramatization or embellishment” that it does not meet the standard of the newsworthiness exception. But here, the court said, Messenger had even conceded that the “Love Crisis” column was newsworthy.

If Messenger prevailed based on the creation of a false impression about her, the state’s civil rights law would be indistinguishable from the common law tort of “false light invasion of privacy,” a tort which New York does not recognize, the court said.

In dissent, Judge Joseph Bellacosa argued that the “fictionalization exception” remains part of New York law, and a plaintiff can prevail despite the “newsworthiness” of a published column. Here, Messenger’s photos were presented with captions to indicate that she was the letter-writer, and that linkage “is what takes this case over tolerable lines and limits,” he wrote.

The state high court returned the case to the federal court for further proceedings.