Lombardo v. Doyle, Dane & Bernbach, Inc. - 58 A.D.2d 620, 396 N.Y.S.2d 661 (App. Div. 2nd Dept. 1977)

Rule:

N.Y. Civ. Rights Law § 1 et seq. is to be strictly construed and is not to be applied so as to prohibit the portrayal of an individual's personality or style of performance.

Facts:

Appellant entered into negotiations with respondent entertainer, in order to obtain his appearance and services in promoting appellant’s product during a filmed television commercial. Negotiations fell through, but appellant went ahead and completed the commercial. Appellant utilized the services of an actor conducting a band and provided him with the same gestures, musical beat and choice of music with which respondent had been associated in the public’s mind for several decades. Respondent instituted suit, alleging breach of contract, invasion of privacy, and appropriation of public personality for commercial purposes. Appellant moved to dismiss the privacy and appropriation claims, but the trial court denied the motion. Appellant sought review. 

Issue:

1. Was the privacy claim actionable? 
2. Was the appropriation claim actionable? 

Answer:

1) No. 2) Yes.

Conclusion:

On appeal, the court reversed as to the invasion of privacy count, ordering its dismissal, but affirmed as to the appropriation count. The court held that the statutory cause of action for invasion of privacy was to be strictly construed, and thus dismissal was proper since there had been no exploitation of respondent's name, as required by statute. Accordingly, that claim should have been dismissed. As to the appropriation count, the court held that the crux of that allegation was that appellant's imitation of respondent's performance was completely unfair, amounted to a deception of the public, and thus exploited respondent's property right in his public personality. As such, that claim was actionable.