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N.Y. Civ. Rights Law § 50 provides that use of the name, portrait or picture of any living person for advertising purposes, or for the purposes of trade absent written consent is a misdemeanor. N.Y. Civ. Rights Law § 51 authorizes a civil action for injunctive relief and damages, including exemplary damages if a defendant acts knowingly in violation of that protection.
Plaintiff, Dr. Cordia Beverley, sued defendant, Choices Women's Medical Center, Inc. (Choices), seeking damages primarily for invasion of her privacy in violation of Civil Rights Law § 51. Choices, without Beverley’s consent, used her photo, name and professional title in a calendar widely disseminated to promote Choices' for-profit medical services business. The Appellate Division ruled in favor of Beverley. Choices asserted that Beverley was improperly awarded summary judgment on her invasion of privacy suit under N.Y. Civ. Rights Law §§ 50, 51. Specifically, Choices argued that the theme of the calendar on which Beverley’s picture was displayed without permission was the women's movement and, consequently, this message of public interest was enveloped with constitutional free speech protections.
Were Beverly’s photo, name and professional title used for "advertising purposes" within the meaning of Civil Rights Law § 51?
The court found that public interest messages did not come within the protection of civil rights provisions, unless the public interest message was really an advertisement in disguise. The calendar was an advertisement, the court observed, because it identified Choices, highlighted the medical services provided by the facility and staff, and was budgeted as advertising. Choices also asserted that Beverley was a limited-purpose public figure not entitled to sue for privacy. Rejecting this contention, the court said that Beverley’s conference appearance years before did not make her a current news item.