Dallesandro v. Henry Holt & Co.

4 A.D.2d 470, 166 N.Y.S.2d 805, 1957 N.Y. App. Div. LEXIS 4227

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1957
• Status: Published

Opinions

Per Curiam.

Defendant displayed a picture on the cover of “ Waterfront Priest ”, a book it published, that showed Father Corridan, the subject of the book, in conversation with plaintiff, a longshoreman and rank-and-file union member. We do not believe the use of this picture comes within the proscription of sections 50 and 51 of the Civil Eights Law.

A picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute (Gautier v. Pro-Football, 304 N. Y. 354, 359) unless it has no real relationship to the article (Thompson v. Close-Up, 277 App. Div. 848), or unless the article is an advertisement in disguise (Griffin v. Medical Soc. of State of N. Y., 7 Misc 2d 549). It makes no difference whether the article appears in a newspaper (Lahiri v. Daily Mirror, 162 Misc. 776); a magazine (Oma v. Hillman Periodicals, 281 App. Div. 240); a newsreel (Redmond v. Columbia Pictures Corp., 277 N. Y. 707); on television (Gautier v. Pro-Football, supra); in a motion picture (Merle v. Sociological Research Corp., 166 App. Div. 376); or in a book (Damron v. Doubleday Doran Co., 133 Misc. 302, affd. 226 App. Div. 796). The test of permissible use is not the currency of the publication in which the picture appears but whether it is illustrative of a matter of legitimate public interest (Molony v. Boy Comics Publishers, 277 App. Div. 166, 170; Sidis v. F-R Pub. Corp., 113 F. 2d 806, cert. denied 311 U. S. 711).

The book here involved purports to be the true story of a priest’s “ one-man crusade against gangsterism and terror on the New York waterfront ”, and the book jacket showing the priest in earnest conversation with a longshoreman is an attempted pictorialization of the theme. ‘ It is immaterial that its manner of use and placement was designed to sell the article so that it might be paid for and read ” (Oma v. Hillman Periodicals, supra, p. 244). (See, also, Humiston v. Universal Film Mfg. Co., 189 App. Div. 467.) The offending book jacket is annexed to the complaint, and since it appears therefrom that the use of the picture is not actionable under the Civil Eights Law, the complaint was properly dismissed without leave to amend (Callas v. Whisper, Inc., 198 Misc. 829, affd. 278 App. Div. 974, affd. 303 N. Y. 759). The order appealed from should be affirmed.