In Jeffries v. N.Y. Evening Journal Pub. Co. (67 Misc. Rep. 570) Mr. Justice WHITNEY writes that the picture of a person is not used for trade purposes within the meaning of the section when used merely for the dissemination of information and not for commerce or traffic.Summary of this case from Humiston v. Universal Film Manufacturing Co.
C.A. Brodek, for plaintiff.
Clarence J. Shearn, for defendant.
Plaintiff, who alleges that he has written an autobiography which "by reason of plaintiff's career is of interest to the public" and "of great financial value to the plaintiff" and "of immense value" to the newspaper publishing it, brings this suit to enjoin defendant "from using the name, portrait or picture of the plaintiff in or in connection with a so-called biography or life history of the plaintiff," and for $25,000 damages. The autobiography is copyrighted, and a direct attack upon the "so-called biography" now being published as a serial by the defendant can of course not be made in a State court. Hence, plaintiff relies upon section 51 of the Civil Rights Law (formerly Laws of 1903, chap. 132), which prohibits the use of any person's name, picture or portrait without his written consent "for advertising purposes or for the purposes of trade." He attempts to bring the case within the statute by alleging that his picture gives defendant's newspaper "an increased circulation" and thereby "increased value as an advertising medium." But this stretches the language of the statute ad absurdum. It is a penal as well as a remedial provision (see § 50), and must be confined in construction to a reasonable interpretation of its language. In my opinion a picture is not used "for advertising purposes" within its meaning unless the picture is part of an advertisement, while "trade" refers to "commerce or traffic," not to the dissemination of information. According to the plaintiff's construction the picture of a pugilist or president would bring the case within the statute where that of an obscure and quiet citizen would probably not; nor does he, indeed, object to his picture, except in connection with his biography. Motion for temporary injunction denied.