USDC E.D. New York, June 11, 2009

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  • Court holds that defendants’ movie Inside the Mafia is newsworthy and defendants’ use of photograph of plaintiff escorting famous mobster outside a courthouse in advertisements for their movie was “incidental” and thus does not violate New York state’s right of publicity statute

Plaintiff attended the trial of notorious mobster John Gotti in 1991. Plaintiff did not know Gotti, but was talking with a clerk on Gotti’s legal team when Gotti emerged from the courthouse into a crowd of photographers and asked plaintiff to get him to his car. Plaintiff was then photographed escorting Gotti from the courthouse to his car.

The National Geographic Channel defendants produced and broadcast a movie called Inside the Mafia about organized crime in America. Defendant Corbis licensed the photograph to the National Geographic Channel defendants who used it, without obtaining consent from plaintiff, in advertisements and promotional materials for the movie, but not in the movie itself.

Plaintiff sued defendants for violating New York’s right of publicity statute, New York Civil Rights Law § 51, which provides that any person “whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without . . . written consent” may seek damages or injunctive relief. New York courts have held that § 51 does not apply to reports of newsworthy events or matters of public interest.

In this case, the court held that defendants’ movie was newsworthy, dismissing plaintiff’s argument that because the movie was a “docudrama” containing re-enactments it should not be considered newsworthy. Next, the court held that defendants’ use of the photograph in advertisements was a permitted “incidental” use to illustrate the content of the newsworthy media, even though the photograph did not appear in the movie. Finally, the court held that New York does not recognize a common law tort of false light (i.e., the publication of information that would place an individual in a “false light” in the public eye), and the court rejected plaintiff’s argument “that the NGC defendants’ use of the image was impermissible because it ‘fictionalized’ plaintiff’s experience and created the impression that plaintiff had a relationship with Mr. Gotti or the Mafia which he did not actually have.” The court granted summary judgment for the National Geographic Channel defendants.

The court also granted summary judgment for defendant Corbis, who licensed the image and featured the image on its web site, finding that its use met the exception in § 51 for sales for use in a lawful manner and advertising for such sales.