Murray v. New York Magazine Co.

Appellate Division of the Supreme Court of New York

Murray v. New York Magazine Co.

35 A.D.2d 557, 314 N.Y.S.2d 324, 1970 N.Y. App. Div. LEXIS 4081

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 13, 1970

StatusPublished

Cited by3 cases

This text of 35 A.D.2d 557 (Murray v. New York Magazine Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Murray v. New York Magazine Co., 35 A.D.2d 557, 314 N.Y.S.2d 324, 1970 N.Y. App. Div. LEXIS 4081 (N.Y. Ct. App. 1970).

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Opinion

No opinion. Martuscello, Kleinfeld and Benjamin, JJ., concur; Munder, Acting P. J., and Latham, J., dissent and vote to reverse the order insofar as appealed from and to grant defendant’s cross motion for summary judgment, with the following memorandum: This is an action, brought at the behest of plaintiff’s brother, pursuant to sections 50 and 51 of the Civil Rights Law, to recover damages for invasion of privacy for the publication by defendant of a photograph of plaintiff on the cover of the March 17, 1969 issue of its magazine. The magazine featured several articles including one entitled “ The Last of the Irish Immigrants ”. The photograph, which was taken on March 17,1967, while plaintiff was standing on a public street watching the St. Patrick’s day parade, shows him wearing an Irish hat. In our opinion, under these circumstances, the picture is not actionable as a use for the purpose of advertising or trade within the prohibition of the statute. Plaintiff’s appearance and presence was a visual participation in this public event which invited special attention and was in keeping with the festive spirit of the occasion. Since the photograph appeared in an issue of the magazine which was published on St. Patrick’s Day, it bore a reasonable connection to a matter of legitimate public interest (Booth v. Curtis Pub. Co., 15 A D 2d 343; Dallesandro v. Holt & Co., 4 A D 2d 470). We do not consider the fact that the photograph appeared two years after it was taken to be determinative. “ 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” (Dallesandro v. Holte Co., supra, p. 471).

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No opinion. Martuscello, Kleinfeld and Benjamin, JJ., concur; Munder, Acting P. J., and Latham, J., dissent and vote to reverse the order insofar as appealed from and to grant defendant’s cross motion for summary judgment, with the following memorandum: This is an action, brought at the behest of plaintiff’s brother, pursuant to sections 50 and 51 of the Civil Rights Law, to recover damages for invasion of privacy for the publication by defendant of a photograph of plaintiff on the cover of the March 17, 1969 issue of its magazine. The magazine featured several articles including one entitled “ The Last of the Irish Immigrants ”. The photograph, which was taken on March 17,1967, while plaintiff was standing on a public street watching the St. Patrick’s day parade, shows him wearing an Irish hat. In our opinion, under these circumstances, the picture is not actionable as a use for the purpose of advertising or trade within the prohibition of the statute. Plaintiff’s appearance and presence was a visual participation in this public event which invited special attention and was in keeping with the festive spirit of the occasion. Since the photograph appeared in an issue of the magazine which was published on St. Patrick’s Day, it bore a reasonable connection to a matter of legitimate public interest (Booth v. Curtis Pub. Co., 15 A D 2d 343; Dallesandro v. Holt & Co., 4 A D 2d 470). We do not consider the fact that the photograph appeared two years after it was taken to be determinative. “ 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” (Dallesandro v. Holte Co., supra, p. 471).

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35 A.D.2d 557, 314 N.Y.S.2d 324, 1970 N.Y. App. Div. LEXIS 4081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-v-new-york-magazine-co-nyappdiv-1970.

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