STERN v. DELPHI INTERNET SERVICES CORPORATION.

626 N.Y.S.2d 694, Supreme Court, New York County, April 20, 1995.

Phillips, Nizer, Benjamin, Krim, & Ballon by Michael J. Silverberg, for plaintiff.
Squadron, Ellenoff, Plesent, Sheinfeld & Sorkin by Slade R. Metcalf, for defendant.
EMILY JANE GOODMAN, Justice.

BACKGROUND AND FACTS

This case involves state-of-the-art electronic communication and public figures.

Howard Stern (“Stern” or “Plaintiff”), a controversial radio talk show celebrity and heavily promoted public figure, announced his candidacy for the office of Governor of the State of New York in the Spring of 1994. Defendant Delphi Internet Services Corporation (“Delphi” or “Defendant”) provides access to paid subscribers to the vast electronic “information super highway,” known as the Internet. Stern brought this lawsuit because his photograph was used without his permission in an advertisement for the on-line bulletin board service Delphi had set up to debate Stern’s own political candidacy. There is no allegation that the defendant obtained the outlandish, bare buttock photo unlawfully or improperly. It is clear that plaintiff posed for the picture, but he does not object on grounds of its lewdness.

Delphi, as an on-line computer network, offers three types of information services to its subscribers: (1) “hard information”, such as news stories, stock quotes, or reference material; (2) computer games; (3) user interaction, meaning electronic mail, on-line conferences or bulletin board messages. Delphi has been operating for eleven years and currently has over 100,000 subscribers who pay “on-line time” for access.

Delphi set up on its on-line electronic bulletin board, a subscriber-participation debate on the merits of Stern’s candidacy. A June 1994 full page advertisement in New York Magazine and the New York Post featured the flamboyant photograph of Stern in leather pants which largely exposed his buttocks. The ad caption read “Should this man be the next governor of New York?” and continued: You’ve heard him. You’ve seen him. You’ve been exposed to his Private Parts. Now he’s stumping to be governor. Maybe it’s time to tell the world exactly what you think. The Internet’s the one frontier even the King of (Almost) All Media hasn’t conquered. And Delphi’s where you get aboard. The online service that “leads the way in Internet access.” With Delphi, navigating the Net is as easy as falling down. Assistance is available at every turn. From help files, guides and books, to hundreds of online experts, including Wald Howe, Delphi’s resident Internet guru and all around smart guy. So whether you think Howard-the-Aspiring-Governor should be crowned King of the Empire State, or just greased up and sent face-first down a water slide, don’t put a cork in it. Sit down, jack in, and be heard.

In this action Stern alleges that defendant’s use of his name and photograph violates Sections 50 and 51 of the New York Civil Rights Law (the “CRL”). Stern does not deny that it is his picture and buttocks that appear in the advertisement, nor does Delphi.

Defendants have moved to dismiss the complaint, pursuant to CPLR 3211(a)(7), (c).

DISCUSSION

Section 50 of the New York Civil Rights Law makes commercial misappropriation of a person’s name or likeness a misdemeanor. It provides in relevant part: a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without first having obtained the written consent of such person … is guilty of a misdemeanor. N.Y. Civ. Rights Law [[section]]50 (McKinney 1992). Section 51 of the Civil Rights Law also authorizes a civil action for injunctive relief and damages against a party who violates Section 50. See N.Y. Civ. Rights Law Section 50 (McKinney 1992). Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379, 383, 482 N.Y.S.2d 457, 459, 472 N.E.2d 307, 309 (1984). These provisions must be construed narrowly, Rand v. Hearst Corp., 31 A.D.2d 406, 298 N.Y.S.2d 405, 410 (1st Dept.1969), aff’d, 26 N.Y.2d 806, 309 N.Y.S.2d 348, 257 N.E.2d 895 (1970), and constitute the only available relief in New York for the so-called “invasion of privacy” torts recognized at common law. See Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 354, 612 N.E.2d 699, 703 (1993); Cohen, 482 N.Y.S.2d at 459, 472 N.E.2d at 309.

To state a claim under [[section]]51, plaintiff must show that: (1) defendant used his name, portrait or picture, (2) for purposes of trade or advertising, (3) without his written consent. Cohen, 482 N.Y.S.2d at 459, 472 N.E.2d at 309. It is undisputed that Delphi used Stern’s name and picture without his permission, and that both were used “for advertising purposes” within the meaning of the statute since it “appeared 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.” Beverley v. Choices Women’s Medical Center, 78 N.Y.2d 745, 579 N.Y.S.2d 637, 640, 587 N.E.2d 275, 278 (1991).

Defendants contends, however, that its use of Stern’s name and photograph falls within the scope of the “incidental use exception” to Sections 50 and 51.[FN1]

[FN1. The Court need not reach the issue of the newsworthiness exception as the Court finds that the incidental use exception applies.]  The incidental use exception was first adopted in Humiston v. Universal Film Mfg. Co., 189 A.D. 467, 178 N.Y.S. 752 (1st Dept.1919). The court there held that a news disseminator was entitled to display the name and photograph of a woman who was the subject of the defendant’s newsreel for purposes of attracting and selling the film. The court reasoned: If it be held that they cannot be used under the statute for purposes of advertising these motion pictures, then it is clear that they cannot advertise the motion pictures at all, because they cannot be fully advertised, at least, without giving the name of the parties represented … [T]he use of the plaintiff’s name or picture in the approach to the theater and upon the billboard in from, as advertising what was to appear upon the screen, is … incidental to the exhibition of the film itself. Humiston, supra, 178 N.Y.S. at 758.

Here we are presented with the novel issues of whether Delphi’s electronic bulletin board service is to be treated as a news disseminator, whether the incidental use exception is applicable, and defendant’s entitlement to First Amendment protections.

Although only paid subscribers may access Delphi’s on-line information services from their computers or terminals, this service is analogous to that of a news vendor or bookstore, or a letters-to-the-editor column of a newspaper, which require purchase of their materials for the public to actually gain access to the information carried. As Judge Leisure of the United States District Court, Southern District of New York, has noted, “a computerized database is the functional equivalent of a more traditional news vendor, and the inconsistent application of a lower standard of liability to an electronic news distributor … than that which is applied to a public library, bookstore or newsstand would impose an undue burden on the free flow of information.” Cubby, Inc. v. CompuServe, Inc., 776 F.Supp. 135, 140 (S.D.N.Y.1991). In Cubby, Judge Leisure found that Compuserve, a computer service company that provides service similar to Delphi, was in essence “an electronic, for-profit library” which is afforded the same First Amendment protections as distributors of publications. Similarly, here it is evident that Delphi’s on-line service must be analogized to distributors such as news vendors, bookstores and libraries. (It is unnecessary to discuss Delphi’s function as a media news organization disseminating “hard news”.

New York courts have consistently held that the incidental advertising exception applies to all “news disseminators,” not just newspapers and magazines. See Booth v. Curtis Publishing Co., 15 A.D.2d 343, 223 N.Y.S.2d 737, 741 (1st Dept.), aff’d, 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812 (1962) (privileged or incidental advertising use by a news disseminator of a person’s name or identity does not violate CRL Section 51); Velez v. VV Pub. Corp., 135 A.D.2d 47, 50, 524 N.Y.S.2d 186, 187 (1st Dept.), appeal denied, 72 N.Y.2d 808, 533 N.Y.S.2d 57, 529 N.E.2d 425 (1988) (“[T]he incidental use in an advertisement by a news disseminator of a person’s name or identity does not violate the statutory proscription, if it had previously published the item exhibited as a matter of public interest.” (emphases supplied).

Plaintiff concedes that on-line computer services engage, on occasion, in activities similar to those of news vendors. Plaintiff also does not dispute that Delphi’s services include dissemination of news and that the service for which Stern’s likeness was exploited was a newsworthy service similar to a letters-to-the-editor column in a news publication.

Defendant concedes that if the advertisements at issue used plaintiff’s name and likeness to advertise products unrelated to news dissemination, plaintiff would have stated a claim for relief under CRL Section 51. However, since the advertisements were for a service related to news dissemination (in this case plaintiff’s very candidacy for public office), defendant argues they are protected by the incidental use exception. Thus it is defendant’s position that the use of the likeness determines the applicability of the exception, not whether a defendant is solely or even predominantly engaged in the dissemination of news.

The New York courts are consistently cautioned that the protections of CRL Sections 50-51 shall be construed narrowly “so as not to apply to publications concerning newsworthy events or matters of public interest.” Creel v. Crown Publishers, Inc., 115 A.D.2d 414, 415, 496 N.Y.S.2d 219 (1st Dept.1985). The First Amendment, of course, is construed broadly. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). It is well established that “the constitutional guarantees of freedom of speech and of the press stand in the way of imposing” strict liability on distributors for the content of the reading materials they carry. Smith v. California, 361 U.S. 147, 152-53, 80 S.Ct. 215, 218-219, 4 L.Ed.2d 205 (1959). In Smith, the Court struck down an ordinance that imposed liability on a bookseller for possession of obscene books, regardless of whether the bookseller had knowledge of the books’ contents. The Court reasoned that if First Amendment protections are not afforded to booksellers, “the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted.” Id. at 153, 80 S.Ct. at 219. Other courts have noted that “First Amendment guarantees have long been recognized as protecting distributors of publications … obviously, the national distributor of hundreds of periodicals has no duty to monitor each issue of every periodical it distributes. Such a rule would be an impermissible burden on the First Amendment.” Lerman v. Flynt Distributing Co., 745 F.2d 123, 139 (2d Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); see also Daniel v. Dow Jones & Co., 137 Misc.2d 94, 102, 520 N.Y.S.2d 334, 340 (Civ.Ct.1987) (computerized database service “is one of the modern, technologically interesting alternative ways the public may obtain up to the minute news” and “is entitled to the same protection as more established means of news distribution”). Affording protection to on-line computer services when they are engaged in traditional news dissemination, such as in this case, is the desirable and required result.

The proper analogy is to a television network. As a quantitative, though not qualitative assessment, there can be no question that a television network engages both in dissemination of news and entertainment, and that in the former situation “it should be entitled to the same privilege accorded other such media where the statutory right to privacy … is at issue.” Delan by Delan v. CBS, Inc., 91 A.D.2d 255, 260, 458 N.Y.S.2d 608 (2nd Dept.1983). Because Stern’s name was used by Delphi to elicit public debate on Stern’s candidacy, logically the subsequent use of Stern’s name and likeness in the advertisement is afforded the same protection as would be afforded a more traditional news disseminator engaged in the advertisement of a newsworthy product.