OPINION OF THE COURT
Murphy, P. J.
Plaintiff Stephano is a professional model who is paid a fee for the use or publication of his photograph. Defendant News Group Publications, Inc., the publisher of New York Magazine (the Magazine), contacted the plaintiff in July of 1981 to do an article on men’s fall fashions. Plaintiff avers that he orally agreed with defendant that the photographs, taken in that shooting session, were only to be used in that one article. There is no dispute that the plaintiff’s photograph that appeared in the August 31, 1981 issue and his two photographs that appeared in the September 7, 1981 issue were taken in that shooting session. On or about [288]*288August 11, 1981, the defendant had sent the plaintiff a written release for all photographs. However, the plaintiff refused to sign that release.
One of the photographs taken in the session appeared in the “Best Bets” column of the August 31, 1981 issue of the Magazine. Over the photograph there was a caption that read as follows:
“Yes, Giorgio
“From Giorgio Armani. Based on his now classic turn on the bomber jacket, this cotton-twill version with ‘fun fur’ collar features the same cut at a far lower price — about $225. It’ll be available in the stores next week.
“ — Henry Post
“Bomber Jacket/Barney’s, Bergdorf
“Goodman, Bloomingdale’s”
An article entitled “Classic Mixes” appeared in the September 7,1981 issue of the Magazine. This article on men’s fall fashions included two photographs of the plaintiff wearing Giorgio Armani clothing. The price of the clothing was given together with the fact that it could be purchased at Bloomingdale’s or Charivari for Men.
In his first cause of action, plaintiff seeks to recover $350,000 compensatory and $350,000 exemplary damages for a violation of section 51 of the Civil Rights Law. Plaintiff alleges in his affidavit that the defendant used his photograph in the August 31, 1981 issue without his written consent. The second cause, grounded upon the same facts, seeks identical damages for an invasion of plaintiff’s right of publicity.
In support of defendant’s motion for summary judgment, an affidavit was submitted from Henry Post, a contributing editor of the Magazine. Post did not contest the fact that the plaintiff’s photograph was used without his written consent in the “Best Bets” column of August 31, 1981. To the extent here relevant, Post declared: “3. I have worked for New York since 1980. During that time, I have assisted in researching and writing items for the ‘Best Bets’ column. That column is a regular news feature of the magazine. It provides the reader of New York with information as to interesting products, services, and events [289]*289available in the New York metropolitan area. Although the ‘Best Bets’ column, on occasion, discloses the price of a product or cost of a service, no retailer or producer pays New York anything for the publication of such information. That information is included solely for newsworthy purposes.”
In opposition to the defendant’s motion, plaintiff maintained that Post did not have any knowledge of or experience with the Magazine’s advertising department. Plaintiff also made these pertinent comments on the “Best Bets” column found in the Magazine:
“7. While it may be that a party whose service or product is included in ‘Best Bets’ does not pay a direct advertising fee to be included, the benefits to the magazine are obtained in an indirect manner. Stores, designers and retailers featured there have all advertised in New York magazine at other times and places, and giving them this ‘breakout’ features in the ‘Best Bets’ column acts as barter for such advertising at another time and place.
“8. The ‘Best Bets’ feature in question is illustrative. The ad is for a bomber jacket by Giorgio Armani available at Barney’s, Bergdorf-Goodman and Bloomingdales. All of the above are advertisers inNew York magazine. Exhibit 1 annexed hereto contains copies of such ads in New York Magazine.
“9. Furthermore, large sums of money are spent by designers such as Armani each year for publicity of their designs. It is not only spent on advertisements but goes to publicize the particular clothes and the designer thereof. In the instant case, the publicity benefits in the column to the designer and retail outlets mentioned are evident from a fair reading of the column”.
Corky Pollan, an assistant editor of the Magazine, submitted a reply affidavit in support of defendant’s motion. Pollan stressed that “Best Bets” was an editorial portion of the Magazine. In deciding what to include in “Best Bets”, Pollan claimed that no consideration was given to advertising concerns. No payment was ever made to the Magazine for an item appearing in “Best Bets”.
[290]*290Relying upon the cases of Lopez v Triangle Communications (70 AD2d 359) and Pagan v New York Herald Tribune (32 AD2d 341, affd 26 NY2d 941), Special Term granted defendant’s motion for summary judgment. The rationale for the court’s determination is found in the following paragraph: “[a]n examination of the exhibits compels the finding that the publication complained of was a newsworthy observation on the part of defendant in a section devoted to keeping the readership apprised of novel happenings and offerings within the metropolitan area and not for advertising purposes or purposes of trade as contemplated by the statute (Lopez v Triangle Communications, Inc., 70 AD2d 359; Pagan v New York Herald Tribune, 32 AD2d 341). The fact as to the availability of the item at certain stores which currently advertise in defendant’s magazine without a further showing of benefit to defendant does not sustain the allegation of use for advertising or trade purposes and no factual issue exists to be tried (Hirsch v S. Berger Import & Mfg. Corp., 67 AD2d 30)”.
The primary purpose of section 51 of the Civil Rights Law is to protect the sentiments, thoughts and feelings of an individual. The purpose of the statute is remedial and rooted in popular resentment at the refusal of the courts to grant recognition to the newly expounded right of an individual to be immune from commercial exploitation (Flores v Mosler Safe Co., 7 NY2d 276, 280, 281).
In this proceeding, plaintiff Stephano relies primarily upon the language of section 51 which prohibits the use of his picture for advertising purposes or purposes of trade without his written consent being first obtained. Nonetheless, the law is settled that 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 unless it has no real relationship to the article or unless the article is an advertisement in disguise. (Murray v New York Mag. Co., 27 NY2d 406, 408, 409.) As will be developed below, factual questions are presented as to whether the article in the August 31, 1981 issue was (i) truly in the public interest or (ii) an advertisement in disguise.
[291]*291By way of background, certain observations should be made about the article in the June 7, 1981 issue.
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OPINION OF THE COURT
Murphy, P. J.
Plaintiff Stephano is a professional model who is paid a fee for the use or publication of his photograph. Defendant News Group Publications, Inc., the publisher of New York Magazine (the Magazine), contacted the plaintiff in July of 1981 to do an article on men’s fall fashions. Plaintiff avers that he orally agreed with defendant that the photographs, taken in that shooting session, were only to be used in that one article. There is no dispute that the plaintiff’s photograph that appeared in the August 31, 1981 issue and his two photographs that appeared in the September 7, 1981 issue were taken in that shooting session. On or about [288]*288August 11, 1981, the defendant had sent the plaintiff a written release for all photographs. However, the plaintiff refused to sign that release.
One of the photographs taken in the session appeared in the “Best Bets” column of the August 31, 1981 issue of the Magazine. Over the photograph there was a caption that read as follows:
“Yes, Giorgio
“From Giorgio Armani. Based on his now classic turn on the bomber jacket, this cotton-twill version with ‘fun fur’ collar features the same cut at a far lower price — about $225. It’ll be available in the stores next week.
“ — Henry Post
“Bomber Jacket/Barney’s, Bergdorf
“Goodman, Bloomingdale’s”
An article entitled “Classic Mixes” appeared in the September 7,1981 issue of the Magazine. This article on men’s fall fashions included two photographs of the plaintiff wearing Giorgio Armani clothing. The price of the clothing was given together with the fact that it could be purchased at Bloomingdale’s or Charivari for Men.
In his first cause of action, plaintiff seeks to recover $350,000 compensatory and $350,000 exemplary damages for a violation of section 51 of the Civil Rights Law. Plaintiff alleges in his affidavit that the defendant used his photograph in the August 31, 1981 issue without his written consent. The second cause, grounded upon the same facts, seeks identical damages for an invasion of plaintiff’s right of publicity.
In support of defendant’s motion for summary judgment, an affidavit was submitted from Henry Post, a contributing editor of the Magazine. Post did not contest the fact that the plaintiff’s photograph was used without his written consent in the “Best Bets” column of August 31, 1981. To the extent here relevant, Post declared: “3. I have worked for New York since 1980. During that time, I have assisted in researching and writing items for the ‘Best Bets’ column. That column is a regular news feature of the magazine. It provides the reader of New York with information as to interesting products, services, and events [289]*289available in the New York metropolitan area. Although the ‘Best Bets’ column, on occasion, discloses the price of a product or cost of a service, no retailer or producer pays New York anything for the publication of such information. That information is included solely for newsworthy purposes.”
In opposition to the defendant’s motion, plaintiff maintained that Post did not have any knowledge of or experience with the Magazine’s advertising department. Plaintiff also made these pertinent comments on the “Best Bets” column found in the Magazine:
“7. While it may be that a party whose service or product is included in ‘Best Bets’ does not pay a direct advertising fee to be included, the benefits to the magazine are obtained in an indirect manner. Stores, designers and retailers featured there have all advertised in New York magazine at other times and places, and giving them this ‘breakout’ features in the ‘Best Bets’ column acts as barter for such advertising at another time and place.
“8. The ‘Best Bets’ feature in question is illustrative. The ad is for a bomber jacket by Giorgio Armani available at Barney’s, Bergdorf-Goodman and Bloomingdales. All of the above are advertisers inNew York magazine. Exhibit 1 annexed hereto contains copies of such ads in New York Magazine.
“9. Furthermore, large sums of money are spent by designers such as Armani each year for publicity of their designs. It is not only spent on advertisements but goes to publicize the particular clothes and the designer thereof. In the instant case, the publicity benefits in the column to the designer and retail outlets mentioned are evident from a fair reading of the column”.
Corky Pollan, an assistant editor of the Magazine, submitted a reply affidavit in support of defendant’s motion. Pollan stressed that “Best Bets” was an editorial portion of the Magazine. In deciding what to include in “Best Bets”, Pollan claimed that no consideration was given to advertising concerns. No payment was ever made to the Magazine for an item appearing in “Best Bets”.
[290]*290Relying upon the cases of Lopez v Triangle Communications (70 AD2d 359) and Pagan v New York Herald Tribune (32 AD2d 341, affd 26 NY2d 941), Special Term granted defendant’s motion for summary judgment. The rationale for the court’s determination is found in the following paragraph: “[a]n examination of the exhibits compels the finding that the publication complained of was a newsworthy observation on the part of defendant in a section devoted to keeping the readership apprised of novel happenings and offerings within the metropolitan area and not for advertising purposes or purposes of trade as contemplated by the statute (Lopez v Triangle Communications, Inc., 70 AD2d 359; Pagan v New York Herald Tribune, 32 AD2d 341). The fact as to the availability of the item at certain stores which currently advertise in defendant’s magazine without a further showing of benefit to defendant does not sustain the allegation of use for advertising or trade purposes and no factual issue exists to be tried (Hirsch v S. Berger Import & Mfg. Corp., 67 AD2d 30)”.
The primary purpose of section 51 of the Civil Rights Law is to protect the sentiments, thoughts and feelings of an individual. The purpose of the statute is remedial and rooted in popular resentment at the refusal of the courts to grant recognition to the newly expounded right of an individual to be immune from commercial exploitation (Flores v Mosler Safe Co., 7 NY2d 276, 280, 281).
In this proceeding, plaintiff Stephano relies primarily upon the language of section 51 which prohibits the use of his picture for advertising purposes or purposes of trade without his written consent being first obtained. Nonetheless, the law is settled that 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 unless it has no real relationship to the article or unless the article is an advertisement in disguise. (Murray v New York Mag. Co., 27 NY2d 406, 408, 409.) As will be developed below, factual questions are presented as to whether the article in the August 31, 1981 issue was (i) truly in the public interest or (ii) an advertisement in disguise.
[291]*291By way of background, certain observations should be made about the article in the June 7, 1981 issue. In a footnote on page 8 of its brief, the defendant concedes that the plaintiff was paid for the two photographs used in the September 7, 1981 issue. Undisputably, the September 7, 1981 article, together with the accompanying photographs, was included in the Magazine for the purposes of trade. Quite simply, the article was included to increase circulation. It is also possible that this article constituted an advertisement in disguise since many of the Magazine’s advertisers were mentioned in the copy. More will be said on this point in the discussion of the August 31, 1981 article.
It should be further emphasized that the defendant does not challenge the plaintiff’s understanding of the oral agreement that governed the shooting session. The defendant does not dispute the fact that it breached the oral agreement by using plaintiff’s photograph in the August 31,1981 issue. Despite this apparent breach, the defendant chooses to focus attention upon its claim that the August 31, 1981 article was of a newsworthy event. Therefore, it maintains that it did not violate section 51 of the Civil Rights Law. (Cf. Wrangell v Hathaway Co., 22 AD2d 649.)
Notwithstanding the defendant’s contention of newsworthiness, the caption and the photograph in the August 31, 1981 issue were identical in form and presentation to those used in the September 7, 1981 issue. This could very well lead a reasonable person to conclude that the August 31, 1981 article was also used for purposes of trade. It must be remembered that the article itself, rather than its location in the Magazine on August 31, 1981, is the determinative factor as to its characterization and its use (Lahiri v Daily Mirror, 162 Misc 776, 782).
Although the defendant argues that the August 31,1981 article is of a newsworthy event, the same might be said of the September 7,1981 article and all other articles dealing with fashion trends. The real question presented in this case is whether the public interest aspect of the August 31, 1981 article is merely incidental to its commercial purpose. (Davis v High Soc. Mag., 90 AD2d 374, 380, 381, app dsmd 58 NY2d 1115.) In this proceeding, compelling arguments [292]*292are made that the defendant did more than merely alert its readership that bomber jackets were in style. The defendant gave the designer name of the bomber jacket, the price and sales locations. Viewing the evidence most favorably to the plaintiff, a factual question is presented as to whether the August 31, 1981 article was actually published for purposes of trade. A collateral question is presented as to whether the article’s newsworthiness was merely incidental to the commercial purpose of the article.
Summary judgment should have been denied for the additional reason that the August 31, 1981 article might have been an advertisement in disguise. As was mentioned above, the August 31, 1981 article inured to the benefit to several of the Magazine’s regular advertisers. Even though the defendant denied that any remuneration was received for articles appearing in the “Best Bets” column, that is a matter within its exclusive knowledge. The plaintiff should be given the opportunity to explore, on an examination before trial and at trial itself, whether any consideration was given by the advertisers for the passing mention of their names in the “Best Bets” column. Similarly, the plaintiff should be allowed to delve into the question of whether the defendant promised to give its advertisers free exposure in the “Best Bets” column as part of its basic advertisement package.
In view of the factual questions found under the first cause, a discussion of the second cause becomes academic. A comment should be made, however, on Special Term’s decision. Special Term relied upon Lopez and Pagan (supra). Suffice it to say that the facts in both of those cases are readily distinguishable from those in the instant proceeding. The foremost distinction is, of course, the fact that the plaintiffs in Lopez and Pagan were not professional models.
Accordingly, the judgment of the Supreme Court, New York County (Hettinger, J.), entered December 16, 1982, granting defendant’s motion for summary judgment dismissing the complaint, should be reversed, on the law, and the motion should be denied, with costs.