WALTER v. NBC TELEVISION NETWORK INC NBC

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Supreme Court, Appellate Division, Fourth Department, New York.

Claire WALTER, Plaintiff-Respondent, v. NBC TELEVISION NETWORK, INC., Subsidiary of NBC Universal, The Tonight Show, Jay Leno, and Dorschel Automotive Group, Inc., Defendants-Appellants.

Decided: March 17, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, GREEN, AND HAYES, JJ. Nixon Peabody LLP, Rochester (Christopher D. Thomas of Counsel), for Defendants-Appellants NBC Universal, Inc. (Incorrectly Sued as NBC Television Network, Inc., Subsidiary of NBC Universal, and The Tonight Show) and Jay Leno. Chelus, Herdzik, Speyer, Monte & Pajak, P.C., Buffalo (Michael F. Chelus of Counsel), for Defendant-Appellant Dorschel Automotive Group, Inc. Nira T. Kermisch, Rochester, for Plaintiff-Respondent.

Plaintiff commenced this action against her former employer, defendant Dorschel Automotive Group, Inc. (Dorschel), and defendants NBC Universal, Inc. (incorrectly sued as NBC Television Network, Inc., subsidiary of NBC Universal, and The Tonight Show) and Jay Leno (NBC defendants), after Jay Leno displayed her photograph as part of a comedic “ Headlines” segment on The Tonight Show.   Plaintiff asserted causes of action for the violation of Civil Rights Law §§ 50 and 51 and intentional infliction of emotional distress.   Supreme Court granted in part the motion of the NBC defendants to dismiss the complaint for failure to state a cause of action by dismissing the third cause of action, for intentional infliction of emotional distress, against them.   The court denied the motion of Dorschel for summary judgment dismissing the complaint against it.

 We agree with the NBC defendants that the court erred in denying that part of their motion to dismiss the Civil Rights Law cause of action against them, and we therefore modify the order accordingly.   Sections 50 and 51 are “to be narrowly construed and ‘strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person’ ” (Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d 436, 441, 706 N.Y.S.2d 52, 727 N.E.2d 549, cert. denied 531 U.S. 818, 121 S.Ct. 57, 148 L.Ed.2d 25, quoting Finger v. Omni Publs. Intl., 77 N.Y.2d 138, 141, 564 N.Y.S.2d 1014, 566 N.E.2d 141;  see Colon v. City of Rochester, 307 A.D.2d 742, 744, 762 N.Y.S.2d 749, appeal dismissed and lv. denied 100 N.Y.2d 628, 769 N.Y.S.2d 192, 801 N.E.2d 412).   Here, the use of plaintiff's photograph by the NBC defendants was not strictly limited to a commercial appropriation, and thus the use of the photograph does not fall within the ambit of those sections of the Civil Rights Law (see Messenger, 94 N.Y.2d at 441, 706 N.Y.S.2d 52, 727 N.E.2d 549;  see also Stephano v. News Group Publs., 64 N.Y.2d 174, 185-186, 485 N.Y.S.2d 220, 474 N.E.2d 580).   In addition, sections 50 and 51 of the Civil Rights Law “do not apply to reports of newsworthy events” (Messenger, 94 N.Y.2d at 441, 706 N.Y.S.2d 52, 727 N.E.2d 549), and the issue whether an item is newsworthy is a question of law to be determined by the court (see Freihofer v. Hearst Corp., 65 N.Y.2d 135, 140-141, 490 N.Y.S.2d 735, 480 N.E.2d 349;  Glickman v. Stern, 19 Media L. Rptr. 1769, 1775-1776, affd. 188 A.D.2d 387, 592 N.Y.S.2d 581).   Newsworthiness is to be broadly construed (see Messenger, 94 N.Y.2d at 441, 706 N.Y.S.2d 52, 727 N.E.2d 549) and “liberally applied” (Finger, 77 N.Y.2d at 143, 564 N.Y.S.2d 1014, 566 N.E.2d 141).   A performance involving comedy and satire may fall within the ambit of the newsworthiness exception even if the performance is not related “to a ‘legitimate’ news broadcast [or event]” (Glickman, 19 Media L. Rptr. at 1775;  see De Gregorio v. CBS, 123 Misc.2d 491, 493, 473 N.Y.S.2d 922;   Paulsen v. Personality Posters, 59 Misc.2d 444, 448, 299 N.Y.S.2d 501;  see also Kane v. Comedy Partners, 32 Media L. Rptr. 1113, 2003 WL 22383387 [S.D.N.Y.], affd. 98 Fed.Appx. 73).   We conclude that the comedic component of the newsworthiness exception applies here.   We have examined the remaining contentions of plaintiff in support of her Civil Rights Law cause of action against the NBC defendants and conclude that they are lacking in merit.

 With respect to Dorschel, however, we conclude that the court properly denied that part of its motion for summary judgment dismissing the Civil Rights Law cause of action against it.   Dorschel failed to establish as a matter of law that it did not submit plaintiff's photograph, which bore a caption listing the name of its business, its area code, and part of its telephone number, to the NBC defendants “for advertising purposes, or for the purposes of trade” (§ 50).   We reject Dorschel's contention that, if the newsworthiness exception applies to the NBC defendants, then that exception must also apply to Dorschel.   If Dorschel did indeed submit the photograph for its own advertising purposes, Dorschel is not entitled to the protection available to the NBC defendants under the newsworthiness exception (see generally Arrington v. New York Times Co., 55 N.Y.2d 433, 442-443, 449 N.Y.S.2d 941, 434 N.E.2d 1319, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247, 57 N.Y.2d 669, 454 N.Y.S.2d 75, 439 N.E.2d 884, cert. denied 459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994).   We agree with Dorschel, however, that the court erred in denying that part of its motion for summary judgment dismissing the cause of action for intentional infliction of emotional distress against it.   The complaint does not contain the requisite allegations that Dorschel engaged in conduct that is “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ” (Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86).   We therefore further modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendants NBC Universal, Inc. (incorrectly sued as NBC Television Network, Inc., subsidiary of NBC Universal, and The Tonight Show) and Jay Leno in its entirety and dismissing the complaint against those defendants and by granting the motion of defendant Dorschel Automotive Group, Inc. in part and dismissing the third cause of action and as modified the order is affirmed without costs.

MEMORANDUM: