The "Legal Method" of Judge Jon O. Newman and the Second Circuit

In cases prior to Groden v. Random House, Inc., et al., the United States Court of Appeals for the Second Circuit manifestly understood the meanings and distinctions that New York assigns to the terms "incidental use," "republication," "newsworthiness," "advertising purposes," and "purposes of trade" in interpreting and applying the New York Civil Rights Law §§ 50 and 51. See. e.g., Lerman v. Flynt Distr. Co., Inc., 745 F.2d 123 (2nd Cir. 1984); Bankers Trust Co. v. Publicker Indus., 641 F.2d 1361 (2nd Cir. 1981); see also, Negri v. Schering Corp., 333 F. Supp. 101 (S.D.N.Y. 1971). The meaning of "incidental use," and that doctrine, changed with Groden, and the earlier cases went unmentioned.

A federal court of appeals may overrule lower (district) court precedents and, on rare occasions, it overrules even its own, but it has no power to overrule the precedents of either a coordinate federal jurisdiction or those of a state court, even a state's highest court. That said, given the sheer volume of cases that pass through the judicial process annually, courts enjoy enormous discretion to pick and choose among precedents that support almost any legal proposition. Conversely, they may ignore precedents that they find inconvenient.

One of the remarkable aspects of the Second Circuit's Opinion in Groden v. Random House, Inc., et al., is its studied avoidance of inconvenient precedents from within its own jurisdiction, as well as from the highest court of one of its forum states, the New York Court of Appeals, in preference for decisions from other forums and the lower state courts.

Besides selectivity, the skill of contriving flexible interpretations of case precedents is a highly valued presentational technique in the law profession. Nevertheless, there is a difference, however fine, between selectivity and flexible interpretation, on the one hand, and stark intellectual dishonesty, on the other. Judge Jon O. Newman's Opinion in Groden v. Random House, Inc., et al. illustrated the point through his argument from case precedents. The main pillar of his argument was the Ayn Rand case.

Ayn Rand was well-known for championing egoism and selfishness as ideal human traits nurtured by capitalism unbound. Forty years before her protégé, Alan Greenspan, was humbled by the latest financial crisis in the United States, Rand received her comeuppance at the hands of the New York State Supreme Court, Appellate Division, First Department, in the case of Rand v. Hearst Corp., 298 N.Y.S.2d 405, 410 (1st Dept. 1969), aff'd, 309 N.Y.S.2d 348 (1970).

Hearst published and distributed a paperback reprint of a novel entitled "Chaos Below Heaven" by Eugene Vale. On the back cover of the paperback, Hearst printed an excerpt from a review of the original hardcover edition of Vale's book by the San Francisco Examiner. The quoted review mentioned Ayn Rand's name as follows: "Ayn Rand Enjoys * * * The Same Kind Of Mystique Analysis As Vale * * * Their Underlying Drive Is The Same." That the quotation was a true and accurate excerpt from the review, and that it was explicitly sourced to the San Francisco Examiner, were never in dispute. Regardless, Rand objected to the use of her name in a comparison with the writing style of another author. Instead of suing the San Francisco Examiner, she sued Hearst over the Vale paperback under the New York Civil Rights Law.

Twice in its opinion, the Appellate Division pointedly quoted the proud proclamation in Rand's Complaint that she was "well-known in the contemporary intellectual and literary world [and] among the public at large generally she possesses great fame as a writer." Clearly, the Appellate Division was not similarly so impressed. It held "that the book publisher had a right to use the book review in the manner it did." The New York Court of Appeals affirmed the decision without opinion, meaning that it agreed with the end result, not necessarily that it adopted the Appellate Division's reasoning.

Leaning heavily on the Rand case in Groden v. Random House, Inc., et al., Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit (pictured right) attempted to summarize its facts: "Rand concerned a book jacket . . ." [no, it was actually the cover of a paperback] ". . . in which a publisher had used the name of Ayn Rand in describing the writing style of the book's author." No, it was actually a review by a newspaper, the San Francisco Examiner, which the publisher quoted on the cover of the paperback. "The Appellate Division found this to be incidental use." This was a serious misrepresentation by Newman. It was not the majority opinion by the Appellate Division but the minority dissent that characterized it as "incidental use." The majority never characterized it as such. Indeed, although Newman would have his readers believe that Rand was "a leading case on incidental use," that characterization was an outright fabrication.

As the Appellate Division noted in Rand, "The facts in the Booth case and in our case are entirely different. They present different situations and call for different considerations."

A close reading of Rand indicates that, if anything, it was a "for purposes of trade" case, not a "for advertising purposes" case. Since there was no advertising in another separate medium, "incidental use" could not be established. The Appellate Division never equated the use of Rand's name with a print or broadcast advertisement. The verbiage was physically part of the paperback book product itself. A prospective purchaser browsing a bookstore and seeing that excerpted review on the cover of the Vale paperback could immediately inspect its contents and judge for himself whether the blurb was reliable. Since the comparison to Rand's style of writing was physically attached to the Vale paperback, it was never disseminated more widely than the paperback itself, and perhaps even less widely than the original review in the San Francisco Examiner.

On the other hand, Robert Groden's identity, used in conjunction with a photograph and a quote not found in -- and therefore not reproduced from -- Case Closed, was related to that product in separate commercial print advertising, which reached a far wider audience than Case Closed ever achieved. The quote, which predated Case Closed, was not pegged to its source.

The New York State Court of Appeals' later and more authoritative interpretation of the statute in Beverley v. Choices Women’s Medical Ctr., Inc., 78 N.Y.2d 745 (1991), which the Second Circuit saw fit to ignore, made the continuing vitality of the intermediate (Appellate Division) court's reasoning in the 1969 Rand case highly dubious. (I discussed Beverley in my last post.)  So, Jon Newman relied upon an intermediate state appellate court's decision in Rand so that he could intentionally ignore the higher New York Court of Appeals more recent ruling on "matter of public interest" in Beverley.

Having misconstrued and disguised Rand v. Hearst in the garb of "incidental use", Newman sought to embellish further support for his Opinion: "Other decisions of the New York courts also indicate that republication is not required for incidental use." His "evidence" for this assertion was two cases in which the judges held republication to be permissible incidental use: the Joe Namath case, Namath v. Sports Illustrated, a Division of Time Incorporated, et al., 80 Misc. 2d 531, 533, 363 N.Y.S.2d 276, 278 (Supreme Court of New York, Special Term, New York County, 1975), aff'd, 48 A.D.2d 487, 371 N.Y.S.2d 10 (First Dept. 1975), aff'd, 39 N.Y.2d 897, 386 N.Y.S.2d 397 (1976), where Sports Illustrated had previously published Namath's photograph many times in its editorial content and republished one of those photographs to solicit subscriptions to its magazine; and Velez v. VV Publishing Corp., 135 A.D.2d 47, 524 N.Y.S.2d 186 (1st Dept.), ap denied, 72 N.Y.2d 808, 533 N.Y.S.2d 57 (1988), in which The Village Voice republished the photograph of a person previously featured on the cover of the publication in a subscription advertisement. If these were not examples of "republication" then what were they? Well, according to Newman, they were not, because:

(a) "Republication" means to him the exact replication of an image taken from the original medium in its original size, without any cropping or embellishment. If the image is not a precise, unadorned replica of the image as it appeared in its original medium, there is no "republication".

(b) The doctrine of "incidental use" has been applied to instances where there was no exact replication.

(c) Therefore, "republication" is not required to qualify the use of a man's photo in advertising without his consent as "incidental use."

In other words, from two cases that defined "incidental use" as "republication", and allowed it as a complete defense, Newman concluded that republication was unnecessary. Absurd as it sounds, this is a scrupulously fair and accurate syllogistic breakdown of Newman's argument. I forego any attempt at eloquent appeals to common sense and fairness. Instead, I leave it to people of average intelligence to marvel at what masks for genius in the federal judiciary today. I leave it to their hard-won experience in life to ponder the pompous, arrogant, abstract, desolate mindset of the judges who published this argument earnestly believing that their stature alone would guarantee it credence and respect. And I remind readers that this exploration of Newman's Opinion is no mere academic exercise; its purpose is to highlight the judiciary's fear of the potential for a jury trial of the official lone gunman theory of President Kennedy's assassination, and the lengths to which they were willing to go to prevent it.

For his next trick, I will show how Newman's desperate quest for a persuasive precedent to reject the Civil Rights Law branch of Robert Groden's lawsuit led him in circles.

“Newsworthiness” and “Incidental Use”: How the Second Circuit Changed the Law

In most circumstances, a business cannot use your image to advertise a product without your permission and without paying you. If you're the President of the United States, you can ask that such a billboard be taken down. If your name is Woody Allen, you can sue and win $5 million dollars. The federal judiciary of the Second Judicial Circuit in the United States has carefully thought about this problem in the past and decided in favor of people who were exploited by businesses in this way. But then they thought about it some more, and they decided that, on the other hand, if you're a critic of the Warren Commission, it's okay for a business to steal your image, use it as a poster for their own profit to advertise a derisive anti-conspiracy book, and not have to pay a dime for the damage they've done to your ability to sell your own book. The federal courts accomplish such feats of magic, and officially sanction such thievery on behalf of the government they serve, through the use of fancy words, which, after all, are their stock-in-trade. So, our task is to understand how judges used these words when their goal was to muddle and confuse a set of ideas that had been carefully developed over a period of eight decades because their literal application would have led them inexorably toward a result they found unpalatable.

The key to understanding New York law on this point is the distinction that it draws from the statutory language between the terms "advertising purposes" and "purposes of trade." Since news publications (e.g., newspapers, magazines, etc.) are sold for profit, if a person's photo is used for illustrative purposes within a news or public interest medium it is denominated a use for "purposes of trade." However, New York grants this kind of use a common law "newsworthiness" (a/k/a "public interest") exception so long as it has a real relationship to the article. Murray v. New York Mag. Co., 27 N.Y.2d 406, 409 (1971); Pagan v. New York Herald Trib., 26 N.Y.2d 941 (1970), aff'g, 32 A.D.2d 341, 343, 301 N.Y.S.2d 120 (1st Dept. 1969).

That same photo may be republished in an advertisement for the original medium under the doctrine of "incidental use", because it is "incidental" to the original protected use. New York grants this common law exemption solely to publishers as a limited accommodation of their need to convey samples of the aesthetic content or quality of their products.

If there is no photograph accompanying the article, but one is used instead to separately advertise the sale of the publication, this is use for "advertising purposes." Prior to Groden, the "newsworthiness" and "incidental use" doctrines did not apply to commercial ad photos that did not originate in the underlying publication. Beverley v. Choices Women,s Medical Ctr., Inc., 78 N.Y.2d 745 (1991).

"Incidental use" is a doctrine that finds no textual basis in the statute, and is more in the nature of a judicial accommodation of the editorial use of a publication's actual contents in other media to aid its dissemination.

The "newsworthiness" and "incidental use" doctrinal exceptions to the New York Civil Rights Law were carefully crafted to save the statute from overbreadth only as applied to the news, public affairs, and entertainment dissemination media. They were not invented for the benefit of garment manufacturers looking for "free" advertising, but solely as limited accommodations to enable the media to advertise their publications where they would otherwise have no practical means of publicizing them.

Consider the problem: You or I might look at a magazine or billboard photo of a professional model (not Barack Obama) that has been paid to display the Weatherproof coat. We might then visit a store to try it on, or else order it, either by mail or online. But in the days before the World Wide Web, if we wanted to know who was on the cover of TIME or Newsweek or Gentlemen's Quarterly, were these publications not permitted to advertise we would have to travel to our local newsstand or candy store to find out. Judges in New York State recognized that, reading the statute by its strict literal terms, the media would be unable to advertise their wares unless they were allowed to display some of their graphical content in another, separate medium to generate sales.

Thus was born, in 1919, New York State's doctrine of "incidental use" as an exception to the proscriptions of the New York Civil Rights Law. The seminal case was Humiston v. Universal Film Manufacturing Co., 189 App. Div. 467, 178 N.Y.S. 752 (1919). Newsreel footage of a lawyer helping police to solve a murder was shown in theaters, and posters containing her photograph for the purpose of advertising the newsreel were displayed outside. She sued under the New York Civil Rights Law. The court declared both the film and the advertising posters exempt from the statute.

There is, however, a vitally important point about the Humiston case that the corporate media defense bar dislikes bringing to a court's attention, frequently resulting in judicial misconstruction of what Humiston actually decided and meant: Those lawyers routinely cite the appellate opinion in Humiston, which did not recite the full procedural history found in the decision of the lower court, i.e., the New York State Supreme Court, Special Term, New York County. There, the procedural history of the case makes clear that the defendants in Humiston disclaimed a First Amendment defense. Humiston v. Universal Film Mfg. Co., 101 Misc. 3, 6, 167 N.Y.S. 98 (Sup. Ct., Special Term, N.Y. Co. 1917), rev'd, 189 App. Div. 467, 178 N.Y.S. 752 (1st Dept. 1919). Since the defendants did not raise the First Amendment in the lower court, the appellate court did not face the issue whether it applied to the case.

What that means is that Humiston, the wellspring from which the doctrine of incidental use flowed, was not grounded in a free speech rationale, an immutable fact of historical record that significantly undermines the notion advanced by the Second Circuit Court of Appeals in Groden v. Random House, Inc., et al., that the exception was driven by a First Amendment interest in protecting the ability of the media to publicize its own communications. It wasn't. This is a serious misconception that has been foisted upon, and in turn by, the courts through the passing years in the apparent expectation that repetition will breed familiarity, which in turn will gain acceptance of a false proposition. Nonetheless, it is a legal fiction. On the contrary, beginning with Humiston, the historical development of the "incidental use" doctrine was pegged to the practical necessity of publishers, broadcasters, and filmmakers to advertise samples of their aesthetic content. As interpreted by New York state courts prior to the federal court decisions in Groden, the "incidental use" exception applied only to "republication" of material contained within the protected (under the "newsworthiness" exception to "purposes of trade") editorial content of the product being advertised. Such use was analogized to a "window display" of the contents of the underlying publication.

Therefore (and here is the crucial point), the two doctrines of "newsworthiness / matter of public interest" and "incidental use" are conceptually separate and distinct, but not co-extensive. The application of the former doctrine is the prerequisite to application of the latter. The incidental use exception derives from the material's original source; it does not stand on its own footing.

For example, Holiday Magazine had published an article featuring a photograph of actress Shirley Booth vacationing in Jamaica. Booth had consented to the article, but Curtis Publishing Company made further use of the photo to advertise its magazine in The New Yorker and Advertising Age. Booth sued. The court found that the advertisement used nothing more than a properly acquired, previously published photo, therefore, the use was "incidental" to the original publication and non-actionable. As the court explained in Booth v Curtis Pub. Co., 15 A.D.2d 343, 223 N.Y.S.2d 737 (First Dept. 1962), aff'd, 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812 (1962), the doctrine recognizes "the purpose served in a publisher presenting to its potential customers illustrative samples of the quality and content of its publication." Id., 15 A.D.2d at 351, 223 N.Y.S.2d at 745 (emphasis supplied).

In a subsequent case involving football star Joe Namath, Booth was called "the extreme limit of 'incidental use'", Namath v. Sports Illustrated, a Division of Time Incorporated, et al., 80 Misc. 2d 531, 533, 363 N.Y.S.2d 276, 278 (Supreme Court of New York, Special Term, New York County, 1975), aff'd, 48 A.D.2d 487, 371 N.Y.S.2d 10 (First Dept. 1975), aff'd, 39 N.Y.2d 897, 352 N.E.2d 584,386 N.Y.S.2d 397 (1976).

Indeed, in all these cases, and several more, the safeguard of predictability was clear: Use deemed "incidental" by these courts was carefully confined to the reproduction in advertising of an image, portrait or likeness that was actually contained within the publication being sold, and then only where that image bore such a real relationship to editorial content that the incidental use became, in effect, a representative display of the work itself.

Robert Groden's photograph was not contained within the book Case Closed, neither was the quote attributed to him by the Random House advertising campaign reproduced anywhere in that book. Until Groden, no case squarely held the unconsented use of one's photograph in a commercial advertisement privileged under New York's Civil Rights Law §§ 50, 51 where that same photograph had not previously appeared in the protected editorial content of the advertised medium. The dubious "innovation" of the Groden case lay in deeming the unauthorized advertising use of Mr. Groden's identity "incidental" to a matter of alleged "public interest," i.e., a book about the Kennedy assassination. The holding implicit in Groden appears to be that, under the New York Civil Rights Law and the common law doctrine of "incidental use", a publisher of material that is newsworthy, or concerns a matter of public interest, may use the likeness of person who is one of its subjects in an advertisement to "indicate the nature of the contents" of the publication being sold, irrespective of whether that likeness appears in the publication itself. (This leaves the question whether that person must be a subject of the book or article, or could merely be employed as a symbolic representation of the subject. The thrust of my understanding of Groden is that the vagary of "indicating the nature of the contents" does leave that wide-open uncertainty, however, we need not address that problem here.)

In practical reality, this holding merely restates the premises and prerequisites of the "newsworthiness" doctrine, and it leaves nothing of the doctrine of "incidental use." The latter is a nullity except in name only, since its sine qua non is the republication of "newsworthiness-privileged" likenesses previously used in the underlying publication. According to this holding, the quality of "newsworthiness" in the subject matter and the likeness alone suffices to privilege a publisher to use it in commercial advertising for his product.

Common sense yields that, if there were a First Amendment privilege to breach the statutory proscription in advertising for products related to news dissemination or the public interest, the doctrine of incidental use would be superfluous. Although there is, still, no such First Amendment privilege under the statute, whose constitutionality still stands, nevertheless, that redundancy appears to be Groden's practical result. If "incidental use" is not closely delineated and qualified, as New York courts have previously done, the definition of "advertising purposes" under the statute becomes uncertain and even whimsical. Besides common sense, the U.S. Court of Appeals for the Second Circuit previously held that the First Amendment does not protect the commercialization of personality through treatment distinct from the dissemination of news or information. Titan Sports, Inc. v. Comics World Corp., 870 F.2d 85, 87 (2d Cir. 1989). Compare in the copyright context the rejection of fair use defenses to direct commercial exploitation in Iowa State Univ. Rsch. Fd., Inc. v. ABC, Inc., 621 F.2d 57, 61 (2d Cir. 1980); Meeropol v. Nizer, 560 F.2d 1061, 1069 (2d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978).

Having considered the true purpose and origins of the "incidental use" doctrine, we are left with a troubling question: In the absence of a holding that the "Guilty of Misleading" ads were exempt from regulation under the First Amendment, why would a ruling in Groden's favor have been incompatible with the traditional purpose and interpretation of the "incidental use" rule, and what made the literal application to his case of prior formulations of that rule unacceptable, unreasonable, unfair, or absurd?

Regrettably, Judge Newman and his Second Circuit colleagues failed to supply us with a rhetorically or dialectically convincing answer, as we will further learn by examining their use (and egregious misuse) of legal precedents as purported justification for their alteration of the doctrine.

Next: The "Legal Method" of Judge Jon O. Newman and the Second Circuit (Only the First of Several Iterations)

Barack Obama at the Great Wall of China

This photograph of President Barack Obama visiting The Great Wall in Badaling, China, was taken by an Associated Press news photographer covering the President's trip during November 2009. The Weatherproof Garment Company, which manufactured the coat worn by Obama in the photo, paid the AP for a license to use it. Weatherproof, however, did not ask President Obama for his permission to use his image in its advertising, which identified the coat's style number and bore the tagline "A Leader in Style." On its web site, Weatherproof further identified this as “The Obama Jacket”. A billboard advertisement appeared in New York’s Times Square. The New York Times, the New York Post and Women's Wear Daily all rejected a similar ad.

Our Woody Allen example would seem to suggest, that some elements of the First Amendment bar are bent on enticing garmentos to gamble their money so that lawyers can live in luxury while playfully testing the boundaries of commercial free speech. Obama hasn't sued over the coat ad -- not yet anyway -- so there can be no certainty how a court would rule on whether the ad violated his rights. Nevertheless, the coat manufacturer, while taking its sweet time, took down the advertising billboard at the request of the White House after it objected to the ad, so we may fairly surmise that both the president and the manufacturer sensed the legal issues it raised, and that neither side to the dispute acted gratuitously.

The ad indicates the nature and quality of the garment Weatherproof sells, which is hardly surprising, as that is the goal of all commercial advertising. So, why should Weatherproof have to pay Obama a thin dime to make gazillions of dollars off of his image, and why shouldn't Weatherproof have the absolute First Amendment right to enjoy such a financial bonanza? After all, Obama didn't make that coat; he just wore it. He was photographed wearing the coat because he wanted to be photographed. That's what a "photo opportunity" is for.

On the other hand, Obama’s willing pose for this photograph hardly necessitates that he consented to its use in Weatherproof's commercial advertisement. Why should this garment manufacturer make a bundle off of the president’s image to sell his coats without the president's permission, and without compensating him, not even to the extent of offering to donate coats to the homeless and needy in the dead of winter? Why, in other words, would the White House find this advertisement objectionable, and why would the manufacturer see the sense in removing it from public view as soon as the White House protested?

President Obama is both an actor on the public stage and a symbol of his office and whatever additional values people may associate with him. While still an elected official in Illinois, he exploited his national renown and the commercial value of his identity as the author of two successful books and their ancillary audio adaptations. After leaving the presidency, Obama may do the same, as have all recently retired presidents. Does he retain any valid interest, let alone right, to control the circumstances in which his image appears, or have they evaporated for all time?

Under New York’s Civil Rights Law jurisprudence in both the state and federal courts prior to Groden v. Random House, Inc., et al., whether a plaintiff is a public figure or a private figure is irrelevant to the analysis. Titan Sports, Inc. v. Comics World Corporation, et al., 870 F.2d 85 (2nd Cir. 1989); Brinkley v. Casablancas, et al., 80 A.D.2d 428, 438 N.Y.S.2d 1004 (1st Dept. 1981); Reilly v Rapperswill Corp., 50 A.D.2d 342, 377 N.Y.S.2d 488 (1st Dept. 1975). The statute affords Mr. Obama, or almost any other plaintiff for that matter, the right to conduct and present himself to the public in such a manner as to preserve the attribute of dignity. This concept would seem to apply even more forcefully when the dignity of the individual is inextricably intertwined with the dignity of the highest elective office in the United States.

I propose to analyze the Obama ad within the same framework utilized by Judge Jon O. Newman to justify his Opinion in Groden v. Random House, Inc., et al., where Robert Groden's photograph was used without his consent in a print advertising campaign for the book, Case Closed. This is difficult, however, because totally absent from Newman's opinion (as well as that of the lower U.S. District Court for the Southern District of New York) is any weighing of the competing interests involved. For example there was no consideration of Groden's recognition value to Random House, or his interest in protecting the salability of his own competing book and video products, which Newman deliberately omitted mentioning. There was neither any nod to Groden's interest in freedom from the mental distress of being associated in the public mind through advertising with the unflattering work of another author that he did not endorse, nor even lip service paid to a person's right to control the circumstances or terms under which he may exploit his name and likeness when another seeks their use in an advertisement. In Jon Newman's universe, there were no competing interests; he is a skillful writer, as may be expected of Earl Warren’s former senior law clerk, but his Opinion merely feigned at evaluating Groden’s arguments and was, in reality, completely one-sided. As I will demonstrate in the posts to follow, his use of case precedents was also egregiously dishonest. So, in comparing and contrasting the Obama and Groden ads, I must take a different tack.

Newman's Opinion in Groden struck three main themes: (1) the fact that the assassination of John F. Kennedy is a "matter of public interest"; (2) the "emotional" context of the Kennedy assassination controversy (perhaps a significant remark in light of our discussion of bias); and (3) the questions whether the assassination was the work of only one man, and whether the critics of the Warren Commission were "guilty of misleading the American public" were purely matters of opinion, not susceptible to factual determination.

I am not citing any purported First Amendment justification, because Newman and his colleagues on the Second Circuit Court did not base their ruling on the First Amendment. When, as here, a court declares that its decision “might even be required by First Amendment considerations,” it is indicating that it did not regard such considerations as pivotal, and that doubt remains. In lay terms, it was "padding" to make the decision seem weightier. In legal terms it is called dicta, as opposed to "holding" (ratio decidendi), i.e., the essential rule of the case. Newman's First Amendment musings did not lay down a constitutional rule, thus did not have any precedential force with regard to the First Amendment, notwithstanding that some courts and commentators may find it impressive. At the same time, Newman's circumlocution around a First Amendment ruling made it less likely that the Supreme Court of the United States would accept the case for constitutional review. I will remark further on the significance of this strategic maneuver when I get around to discussing the constitutional implications of commercial advertising in a follow-up post.

There can be little dispute that the activities of President Obama, whether as president, as a husband, or as a father, but especially as a head-of-state visiting China, are all matters of public interest. The president's trip was newsworthy. He is newsworthy. Every move he makes, every breath he takes is a matter of public interest and concern. He actually wore The Weatherproof Garment Company's coat while visiting The Great Wall, and Weatherproof merely republished the bona fide news photograph to advertise the nature and quality of its products.

There also can be little dispute that President Obama is the focal point of many emotions for multitudes in the United States and around the world. He broke a long-standing color barrier to become our first African-American president, a fact of which a vast majority of Americans, particularly those of African-American descent, are justly proud. From a political standpoint, people either approve or disapprove of his performance as president, and those emotions can be equally strong. He is a target of controversy, so people may be expected to hold differing opinions of him.

Significantly, as with the Woody Allen billboards, “The Obama Coat” ad contains no hint of an endorsement of the manufacturer's product; he is simply shown wearing the coat that it makes and sells. Under the terms of Newman's Opinion in the Groden case, there is nothing false about this advertisement: the photograph is genuine and Obama actually wore the coat, which was actually produced by the ad's sponsor. It presents Obama as an attractive man dressed in a well-fitting garment, and does not overtly solicit readers to buy the coat, although that is the ad's obvious purpose and goal.

The ad makes no political argument or statement, unless one was to take it as a subtle appeal to patriotism. It is simply and starkly a solicitation to buy the same coat that President Obama is shown to have worn.

On principle, then, taking Judge Newman's purported justifications on their face, there should be little material distinction between this ad and the Random House ad for Case Closed. One might argue that a distinction lay in the products sold: a garment vis-á-vis a book. But if this were true, then why did Newman stop short of holding that advertising for a book was entitled to the same First Amendment protection as the book itself? That's the holding that the Groden defendants strenuously argued and obviously hoped for.

There is, however, a fatal flaw in the structure of Newman's argument, in particular his use of a “public interest” rationale to circumvent New York’s statute and its prior interpretation by the New York Court of Appeals:

In the literal context of the New York Civil Rights Law, the terms "advertising purposes" and "purposes of trade" are terms of art, not conjunctive but disjunctively distinct. Subject to carefully delineated exceptions that we will discuss, the violation of either prong may be sufficient for recovery. Flores v. Mosler Safe Co., 7 N.Y.2d 276, 284, 196 N.Y.S.2d 975 (1959). In the Flores case, The Mosler Safe Company reprinted a New York Times story about a building fire which mentioned the plaintiff, together with an accompanying photograph, in an advertisement soliciting businessmen to use Mosler’s product to protect their business records. Flores’ involvement in the story was merely that he happened to be visiting the tenant of the building when it caught fire. When he sued, Mosler defended on the grounds that the advertisement contained a true news account, it did not imply any endorsement by Flores, and that the mention of his name was incidental. The Court found that the story reprinted in the ad, although a news account protected under the “purposes of trade” prong of the New York Civil Rights Law, was not an item of current or general interest, but was intended solely to sell Mosler's products, therefore, Mosler’s advertisement amounted to "an advertisement in disguise" and a misappropriation of Flores’ name and photo “for advertising purposes.”

It is the dual and disjunctive nature of that statutory proscription that guided the development of the case law and two doctrinal exceptions to the statute by the New York courts throughout the twentieth century. New York courts have liberally construed the term "advertising purposes." The use of a name, portrait or picture "for advertising purposes" within meaning of the statute contemplates a use for the solicitation to patronage of a particular service or product. Pagan v. New York Herald Tribune, Inc., 32 A.D.2d 341, 343, 301 N.Y.S.2d 120 (1st Dept. 1969), aff'd, 26 N.Y.2d 941, 310 N.Y.S.2d 327, 258 N.E.2d 727 (1970).

As interpreted by the courts prior to Groden, the objects of these words are treated differently according to the respective classification under which they fall: "for purposes of trade" (under which newsworthy images contained in books, films, newspaper or magazine stories are exempted from the statutory proscription by judge-made doctrine), or "for advertising" (under which only those images that already enjoy the newsworthiness privilege may be republished in commercial advertising as an "incidental use.") The Groden case did not present any kind of penumbral accretion to the meaning of the words "advertising" or "purposes of trade."

On its face, there is no "public interest" exception to the advertising prong of the New York Civil Rights Law, since the statute expressly provides that consent is required for use of a person’s name or likeness in advertising. "Public interest", as interpreted by New York state courts, only attaches to identity uses in news reportage, periodicals, pamphlets, texts, books, theatrical performances and the like. The leading cases in New York confirm that the public interest exception does not apply to advertising, but only to use “for purposes of trade.” Beverley v. Choices Women’s Medical Center, Inc., 78 N.Y.2d 745, 587 N.E.2d 275, 579 N.Y.S.2d 637 (1991).

In Beverley, the defendant used the plaintiffs photograph, name and professional title, on a calendar disseminated by the defendant. The use of her identity was intended to illustrate milestones in the women's rights movement. The calendar, appealing to consumers, also described the medical services rendered by the defendant. The defendant's budget allocation for the calendar was described as being for "advertising and promotion." Plaintiff particularly objected that she opposed the defendant clinic's conduct of abortions. The Court held that

"[A]lthough women's rights and a host of other worthy causes and movements are surely matters of important public interest, a commercial advertiser ... may not unilaterally neutralize or override the longstanding and significant statutory privacy protection by wrapping its advertising message in the cloak of public interest, however commendable the educational and informational value."

Id, at 78 N.Y.2d 745, 752, 587 N.E.2d 275, 279,579 N.Y.S.2d 637. (citations omitted.)

Accordingly, proposing “public interest” in the subject as being a decisive consideration that warrants excusing the commercial exploitation of a victim's goodwill and popularity flies in the face of New York State’s authoritative interpretation of its own statute.

We still need to dig deeper into the scope and implications of the nebulous suggestion that “public interest” overcomes anyone’s right to be free of unwanted exploitation in commercial advertising. There are nuances to digest. Until next time, two points may stir further thought:

First, it is difficult to conjure any advertisement that could not arguably describe or represent, even symbolically, the nature and content of its subject, and to deny that proposition serves no more useful purpose than to tease the ingenuity of advertisers and lawyers, rather than to establish and maintain predictable norms of behavior.

Second, it is a short leap from saying that the product has become newsworthy by dint of the fact that Obama was photographed wearing it at a public news event, to saying that, hence, the Weatherproof advertisement for that product inherits its newsworthy properties and merits treatment as "a matter of public interest," i.e., the ad somehow inherits a penumbra of protection from the product being sold. Note as well this comment from one fashionista quoted in a dispatch by the Associated Press that was printed in The Atlanta Journal Constitution when the billboard appeared: “The ad has potential to be effective with consumers because the president and first lady both carry considerable fashion credibility.” This is the conceptual analogue of the defense put forward in Groden v. Random House, Inc. et al., and eagerly adopted by courts that were anxious to avoid a judicial trial of the JFK assassination: The newsworthiness of the subject attaches itself to the product, and an image evoking that newsworthiness may also be made to symbolize the product. Common sense tells us that creative advertisers could employ this same rationale to conscript any well-known figure against his will as a symbol for its product or service, using the thin (and circular) excuse that the product became newsworthy because the person, his photograph, and the subject they embodied were inherently newsworthy.

If the media might employ this justification scheme, why deny any marketer of a product or service that bears some relation to "a matter of public interest"? Conceptually divorcing the Case Closed book from advertising images that were not contained in the book itself, the courts effectively granted advertisers a license for symbolic expression through the use of people's names and likenesses that they had not previously enjoyed, and there appears little reason to restrict such symbolically expressive liberty to advertisers of media products. Once the exploited image is arbitrarily imbued with symbolic and expressive significance for its utility in attracting attention and promoting sales, absent some demonstrably compelling state interest there is little justification left for prohibiting the use of anyone’s image as a symbolic representation of any product in advertising, whether it is a book, a movie, a play, or a coat. I do not believe that this was the intention of New York State courts in interpreting their Civil Rights Law because the alleged “public interest exception” is thereby made to swallow the rule, and the symbolic worth of the image is left to the advertiser’s judgment. In sum, the outcome of Groden was a sub rosa assault against the United States Supreme Court's commercial speech jurisprudence, paving one road toward removing any distinction for purposes of regulation between advertising and ordinary speech by torturing common law doctrine under the rubric "matter of public interest" to forefend a potentially unfavorable constitutional (i.e., First Amendment) ruling by a Supreme Court that has shown no great sympathy for media interests.

If Obama sues, should he win or lose? If he is reduced to a trading symbol employed in advertising for his recognition value, as was Mr. Groden's involuntary fate, and if the “matter of public interest” standard prevails, and if society’s interest in protecting symbolic expression trumps the already limited and fragile proscriptions of the statute, then Obama should lose, and statutes such as the New York Civil Rights Law are effectively defunct, their protections distinguished away and whittled down by common law doctrine. The only two possible resorts remaining to plaintiffs would be the theories of "false endorsement", which may easily be subsumed by other local, state and federal trade regulations or common law causes of action, and “objectionable character,” which may be pre-empted by the traditional common law dignitary torts (e.g., defamation, false light invasion of privacy, intentional infliction of emotional distress, etc.). On the other hand, if New York's state or federal courts adhere to both the letter and spirit of the New York Civil Rights Law as it existed prior to Groden, Obama should win. That statute was not intended to permit such blatant exploitation for someone else’s profit; its purpose was the exact opposite.

New York and the rest of the nation can use another test case of the rights of privacy and publicity, and the New York courts should clarify whether the exploitation of President Obama's image for advertising purposes violated the law.  If you found "The Obama Coat" ad inappropriate, you might write to the president.

Next: “Newsworthiness” and “Incidental Use”: How the Second Circuit Changed the Law

Woody Allen Takes the Money Without Breaking a Sweat

(Introducing the concept of commercial misappropriation of name and likeness in advertising.)

The use of human model photography in commercial advertising dates back to the beginning of the twentieth century, but it has a special resonance in our own time. Since the advent of multimedia and the graphical Internet, companies large and small have been hungry to feed the beast, i.e., the voracious public appetite for photos and videos. In the context of advertising, they would like to use your image or mine -- for that matter, anyone who steps outside the private sanctuary of his home into a camera's range -- to represent whatever mood, idea, product, etc., that they wish him (or her) to represent, and they would like nothing more than to do this without having to pay for the privilege. It's a hybrid issue of human rights and dignity, unjust enrichment, property in one's own visage (or other uniquely identifiable characteristics), and one's right to be free of intrusion and exploitation. In cases of advertising a particular product, it may also be an unfair competition issue. Commonly, but not invariably, it pits an individual against a corporate concern that has attempted to capitalize on his renown for its own profit, although the victim need not be famous. While plain, ordinary people are not immune from being "ripped off" this way, we usually hear about such thefts only when they happen to celebrities. Plain, ordinary people, however, are just as vulnerable to this type of exploitation of their personas, perhaps even more so, since they lack the financial clout to fight back. In short, anyone can be recruited against his will as a model for someone else's product.

It is not my intention to explore the variety of philosophical underpinnings for the rights of privacy and publicity. For purposes of this blog, it is sufficient that New York has seen fit to recognize these rights within limitations, and I believe that this statute, the bane of a well-organized First Amendment bar that caters to wealthy corporate interests (they are not yesteryear's legendary champions of civil liberties but money whores), serves a salutary purpose. In my view, there is something pernicious about the recent trend in discussions of mass culture that see all of us (not only celebrities) as part of a pool of cultural resources available to be tapped as symbolic assets, purportedly in the service of some ideal of free expression and artistic (or political) enlightenment, but more realistically for someone else's crass profit. Take as an example this ad for a drug and alcohol treatment center that appeared in the New York Post in late September 2007, a blatant attempt to reap gain from news reports about actress Lindsay Lohan. Whatever your opinion of her, what did she do to invite this kind of exploitation and humiliation, this cruelty and finger-wagging at the expense of someone who sought nothing of the ad's sponsor, did not consent to it, and offered no endorsement of their services? Robert Groden's photograph was nowhere to be found in Gerald Posner's book, Case Closed, so what did he do to warrant Random House plastering his face on ads for the book, accusing him of misleading the American public and branding him with someone else's conspiracy theory? He contributed material to a book edited by someone who, for some reason still unexplained, managed to escape such calumny. Regardless, Groden's renown in his narrow specialty served Random's need for a prominent symbol of its publisher's bile. There would have been no Lindsay Lohan ad without Groden, and it is precisely where the implications of the Groden case have taken us. It is one of the reasons why I will show that it was more than a departure from previous legal precedent. Carefully examined, the court decisions in Groden's case have a disturbingly cynical and contemptuous character about them, as though the judges, lacking more effective tools to assist them, knew that they were twisting the meanings of the cases they purported to cite as their precedential authority, yet were so results-oriented -- so obsessed with defeasing this particular individual of his rights -- that they didn't care. As a consequence, and as the Lohan example shows, should the Groden case stand as valid legal precedent, the rights of others against what amounts to piracy have been compromised.

The gravamen of the New York Civil Rights Law §§ 50-51 is the misappropriation of a person's name or likeness "for advertising purposes" or "for purposes of trade," without consent.

New York’s Civil Rights Law, § 50 reads as follows:

§ 50. Right of privacy

A person, firm or corporation that 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, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

New York’s Civil Rights Law § 51 reads in pertinent part:

§ 51. Action for injunction and for damages

Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. . . .

"I am told the settlement [that] I am being paid is the largest reported amount ever paid under the New York 'right to privacy' law," Woody Allen told reporters in May 2009, as he claimed victory over the American Apparel company for this advertisement, in which they used his image without his permission.

Allen sued American Apparel in the United States District Court for the Southern District of New York after the company erected billboard ads, and published a similar ad on its Internet web site, using images of Allen from his 1977 Oscar-winning film, "Annie Hall", dressed in character as a Hasidic Jew with a long beard and black hat. The billboards, which appeared in New York and Hollywood for less than a week during 2007, included Allen's photo, text in Yiddish that translated as "The Holy Rebbe," and American Apparel's name. Allen's claim was mainly based on the New York Civil Rights Law, §§ 50-51.

American Apparel's answer to Allen's complaint cited free speech, public interest, fair use, parody and social commentary as defenses.

It is difficult, without the aid of psychoanalysts or psychiatrists, to discern any element of parody or social commentary from the American Apparel advertisement. Aside from his celebrity, it is equally puzzling why an ad featuring Woody Allen dressed in this garb would be "a matter of public interest," besides the mere fact that, hey, it's Woody Allen! And, while defense lawyers routinely argue in New York Civil Rights Law (and analagous) cases that the statute requires false endorsement for an ad to be actionable, that is actually not a required element of the cause of action. Falsely implied endorsement may indeed lead to liability, but is not required for liability under the New York Civil Rights Law. In any case, if Allen's endorsement was meant to be implied by his mere appearance in the ad, its meaning was obscure, to say the least.

American Apparel's insurance company apparently demanded over its owner's objection that they offer Allen the settlement. Insurance companies strongly prefer collecting premiums to paying out claims, especially a large settlement as they did to Allen. When a plaintiff's lawsuit appears questionable, they are not averse to awaiting a jury's verdict unless they perceive an overwhelming chance of being hit by a large judgment. Several levels of insurance company decisionmakers and their legal advisers are involved in such decisions before they will capitulate. The American Apparel billboards came about as close as you can get to the pure hijacking of an unwilling victim's persona for financial gain in commercial advertising. There was no reasonable excuse for it, not even in constitutional protections for freedom of speech. Both the insurance company and the court were mindful that Allen had previously been successful in preventing the commercial misappropriation of his image in advertising. (Allen v. Men's World Outlet, Inc., 679 F. Supp. 360 (S.D.N.Y. 1988)). That's why American Apparel's insurance company paid.

But why would they settle with Allen on the courthouse steps when, in the mid-1990s, the same court in the same federal circuit had already denied Groden's claim for the commercial use of his image? For that matter, why didn't the U.S. District Court for the Southern District of New York simply throw Allen's case out, citing the Groden case as a precedent?

Is there an inconsistency here? Is it hard to figure out?

Maybe another example will help to clarify why Groden's matter turned out one way, while Allen succeeded in his. Then again, maybe not.

Next: Barack Obama at The Great Wall of China