JAMIE MESSENGER, AN INFANT UNDER THE AGE OF EIGHTEEN, BY HER MOTHER AND “NEXT FRIEND” DONNA MESSENGER, PLAINTIFF-APPELLEE-CROSS-APPELLANT, v. GRUNER + JAHR PRINTING AND PUBLISHING, ALSO KNOWN AS GRUNER + JAHR USA, DEFENDANT-APPELLANT-CROSS-APPELLEE, SALLY LEE, AS EDITOR-IN-CHIEF OF “YM, YOUNG MODERN,” DEFENDANT.

Nos. 98-7767 (L), 98-7865 (XAP).United States Court of Appeals, Second Circuit.Argued: March 10, 1998.
Question Certified: April 28, 1999. Certified Question Answered by New York Court of Appeals February 17, 2000. Decided: February 28, 2000.

Resolution of issue certified to the New York Court of Appeals on whether a plaintiff may recover under New York’s statutory right of privacy, N.Y. Civil Rights Law §§ 50 and 51, when a publisher uses the plaintiff’s image in a substantially fictionalized way to illustrate a newsworthy piece.

Reversed and remanded.

Robert G. Sugarman, Weil, Gotshal Manges, LLP, New York, NY (Jennifer Sclar, of counsel), for Defendant-Appellant-Cross-Appellee.

Mitchell A. Stein, Lieberman Nowak, LLP, New York, N Y (Arthur M. Lieberman and Stephen J. King, of counsel), for Plaintiff-Appellee-Cross-Appellant.

(Slade R. Metcalf and Trina R. Hunn, Squadron, Ellenoff, Plesent
Sheinfeld, LLP, New York, NY; Jerry S. Birenz, Victor A. Kovner, and Laura Handman, Magazine Publishers of America, Inc., New York, NY; Rene P. Milam, Newspaper Association of America, Inc., Vienna, VA; R. Bruce Rich, Weil, Gotshal Manges, New York, NY; and Henry L. Baumann, Jack N. Goodman, and Steven A. Bookshester, National Association of Broadcasters, Washington, DC, submitted a brief fo amici curiae Magazine Publishers of America, Inc., Newspaper Association of America, Inc., The Association of American Publishers, Inc., and the National Association of Broadcasters.)

Before: McLAUGHLIN, STRAUB, and KEITH, Circuit Judges.[*]

[*] The Honorable Damon J. Keith, of the United States Court of Appeals for the Sixth Circuit, sitting by designation.

PER CURIAM:

[1] YM, Young and Modern, a magazine for teenage girls published by Gruner + Jahr Printing and Publishing, used Jamie Messenger’s picture, admittedly without adequate consent, to illustrate its “Love Crisis” column in its June/July 1995 issue. The column, whose headline or “pull quote” was “`I got trashed and had sex with three guys,'” included a letter from an author identified only as “Mortified.” The author of the letter related the events described in the pull quote and sought advice from YM‘s editor on how to deal with the consequences. The editor responded that the author had made a “major mistake,” suggested that she be tested for sexually transmitted diseases and pregnancy, and offered other advice. Messenger’s mother brought this action on her behalf, arguing that Gruner + Jahr violated Messenger’s statutory right of privacy under New York’s Civil Rights Law, §§ 50 and 51, which permit recovery when “[a] person, firm or corporation . . . uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person. . . .” N.Y. Civ. Rights Law §§ 50, 51 (McKinney 1992). After a trial in the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge), a jury found in Messenger’s favor, awarding her $100,000 in damages.

[2] Gruner + Jahr appealed from the judgment, specifically arguing that the District Court erred in denying its motion for summary judgment because the use of Messenger’s photographs fit within the broad definition of newsworthy material or material in the public interest. Because New York courts have consistently held that §§ 50 and 51 do not apply in circumstances involving newsworthy material or material in the public interest, Gruner + Jahr contended that it was entitled to judgment as a matter of law. The District Court denied the motion, concluding that New York courts have not permitted application of the newsworthiness exception in cases where the use “is `infected with material and substantial falsity'” or fictionalization. See Messenger v. Gruner + Jahr USA Publ’g, 994 F. Supp. 525, 529 (S.D.N.Y. 1998) (quoting Lerman v. Flynt Distrib. Co., 745 F.2d 123, 132-33 (2d Cir. 1984), cert. denied, 471 U.S. 1054 (1985)). The District Court decided that because a reasonable jury might find that “the publication created the impression that Messenger had had the experiences that were the subject of the column,” id. at 528, the fictionalization limitation on the newsworthiness exception might apply and therefore summary judgment was not appropriate.

[3] Though Gruner + Jahr raised several other issues in its appeal, and Messenger cross-appealed arguing that the District Court improperly limited her recovery, we decided that the central, dispositive issue in this appeal was whether a plaintiff can recover under New York’s statutory right of privacy, N.Y. Civ. Rights Law §§ 50 and 51, when a publisher uses the plaintiff’s image in a substantially fictionalized way to illustrate a newsworthy piece. See Messenger v. Gruner + Jahr Printing and Publ’g, 175 F.3d 262, 264 (2d Cir. 1999). Because we believed this important issue to be an open one under New York law, we certified the following questions to the New York Court of Appeals:

1. May a plaintiff recover under New York Civil Rights Law §§ 50 and 51 where the defendant used the plaintiff’s likeness in a substantially fictionalized way without the plaintiff’s consent, even if the defendant’s use of the image was in conjunction with a newsworthy column?
2. If so, are there any additional limitations on such a cause of action that might preclude the instant case?

Id. at 266.

[5] The New York Court of Appeals has answered the first question in the negative, see Messenger v. Gruner + Jahr Printing and Publ’g, No. 170, slip op., 2000 WL 190553 (N.Y. Feb. 17, 2000) (per curiam), attached as an Appendix to this opinion, holding that “a Civil Rights Law §§ 50 and 51 claim does not lie where a plaintiff’s photograph is used to illustrate a newsworthy article,” subject only to two limitations: “first, there must be a real relationship between the article and the photograph . . ., and second, the article cannot be an advertisement in disguise.”Id. at [10] (internal citations omitted). The court also noted that “a Civil Rights Law claim may lie if a plaintiff’s picture is used purely for trade purposes, and not in connection with a newsworthy article.” Id. at [10]. Under this analysis, the Court of Appeals determined that, as plaintiff conceded, the “Love Crisis” column in this case was newsworthy, the photographs of Messenger bore a real relationship to the article, and the article was not an advertisement in disguise. See id. at [10-11]. Thus, the Court of Appeals concluded that Messenger could not recover under §§ 50 and 51, “regardless of any false implication that might be reasonably drawn from the use of her photographs to illustrate the article.” Id. at [11]. Having answered the first question in the negative, the Court of Appeals determined that it need not address the second certified question. Id. at [17]. Likewise, we need not address the other issues raised in this appeal, which have been rendered moot by the New York Court of Appeals’ decision.

[6] Accordingly, we vacate the District Court’s judgment and remand for further proceedings consistent with this opinion.

image_pdfimage_print