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Youssoupoff v. Columbia Broad. Sys., Inc. - 41 Misc. 2d 42, 244 N.Y.S.2d 701 (Sup. Ct. 1963)

Rule:

There may be no recovery under N.Y. Civ. Rights Law §§ 50 and 51 for use of a person's name or photograph in connection with an article of current news or immediate public interest. As a general rule, articles which are not strictly news, but which are used to satisfy an ever-present educational need, such as stories of distant places, tales of historic personages and events, the reproduction of items of past news are not within the ban of the statute. These classifications apply, with some possible distinctions, to books and magazines. Like other media of communication, television may have either a trade aspect or an informative or news aspect.

Facts:

Plaintiff, a Russian prince, in 1916 murdered the Russian monk Rasputin, and subsequently wrote two books describing the plot and the details of the murder. Defendant broadcast a dramatic play conceded by plaintiff for purposes of his motion to be historically accurate, in which an actor portrayed plaintiff but the dialogue was imaginary. In this action to recover damages for the invasion of plaintiff's right of privacy, brought under sections 50 and 51 of the Civil Rights Law, plaintiff's motion for summary judgment and defendant's request for such judgment were denied.

Issue:

Is an action to recover damages for the invasion of plaintiff's right of privacy, brought under sections 50 and 51 of the Civil Rights proper?

Answer:

No.

Conclusion:

The court noted that it had never been called upon to determine whether the use of an actor to impersonate the author and imaginary dialogue necessarily constituted fictionalization. The court held that the author's cause of action was not established merely because an actor impersonated him and the scenery and dialogue were the product of the script writers' imagination. The portrayal of the author's personality was no different from that contained in the books. Although the dialogue was necessarily fictional, it was entirely innocuous as far as the author's reputation or character were concerned. The court denied the author's motion for summary judgment. It also denied the broadcasting corporation's motion for summary judgment because its affiants had no personal knowledge of the historical facts and could only express their beliefs, based upon research. In holding that summary judgment in favor of the author was not appropriate, the court determined that a trial, at which all the circumstances of the broadcast would be developed, was necessary to establish that there had been "commercial exploitation" of the author's personality.

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