Selsman v. Universal Photo Books, Inc. , 18 A.D.2d 151 ( 1963 )

McNally, J.

In an action under sections 50 and 51 of the Civil Rights Law, plaintiff appeals from an order denying her motion for summary judgment.

The infant plaintiff is an actress and model. She was engaged in 1957 in the production by Walt Disney Buena" Vista studios of a picture titled ‘ ‘ The Light In The Forest ’ ’. A number of on-location pictures were taken with Minox cameras.

Kling Photo Corp. sells Minox cameras and accessories. It acquired from Buena Vista the photographs here involved. Kling delivered the photographs to its advertising agency Herbert Baker Advertising, Inc. The photographs were published for and in behalf of Kling in a publication known as Minox Memo. Thereafter Herbert Baker Advertising, Inc. made the photographs available to defendant Universal Photo Books, Inc., which in 1961 published the Minox Manual. At page 119 of the Manual are four photographs, one of which is of the plaintiff focusing a Minox camera. At the bottom of the page is the following legend: ‘ ‘ While on location, shooting the Walt Disney motion picture ‘ The Light in the Forest, ’ star Carol Lynley and the film’s promotion director took over a hundred Minox pictures, of which these are representative.”

The Minox Manual as well as the Minox Memo expound the versatility, effectiveness and virtues of the Minox camera. Universal’s president asserts: “ the inclusion of the Carol Lynley picture was intended to show another use of the Minox camera for existing owners, along with other usages as covered throughout the book. The whole tone of the book is to maximize the satisfaction to be derived by those Avho are already owners of the camera.” The manual is sold at $5 per copy and defendants thereon argue a purchaser is unlikely to pay the price unless he owns a Minox. This argument ignores the value of the publication in the sale of accessories and additional cameras. Moreover, the manual is described in its jacket as the “bible ” of miniature photography. In the light of its content, concerned solely with the Minox camera, the evident purpose is to extoll the virtues not of miniature cameras generally but of the Minox camera in particular.

Although in a broad sense the manual serves an educational purpose, nevertheless it does advertise the Minox camera. The ultimate objective of commercial advertising is to educate the public as to the advantages and virtues of commodities and thereby stimulate demand therefor. The provision of section 50 of the Civil Rights Law with regard to "uses for advertising purposes” is to be construed liberally and the publication of plaintiff’s picture is Avitliin its scope. (Almind v. Sea Beach Ry. Co., 157 App. Div. 230; Flores v. Mosler Safe Co., 7 N Y 2d 276; Manger v. Kree Inst. of Electrolysis, 233 F. 2d 5, 8-9.)

Plaintiff did not consent in Avriting to the use by defendant Universal of her name and picture for advertising purposes. (Adrian v. Unterman, 281 App. Div. 81, 88-89, affd. 306 N. Y. 771.) On this record it is apparent, and in fact it was so conceded on the argument of this appeal, that plaintiff failed to make a case against defendants Verían Books, Inc., and S. T). Lisian.

The order denying plaintiff’s motion for summary judgment should be reversed, on the law, the motion granted, an assessment of damages directed as to defendant Universal Photo Books, Inc., and the complaint dismissed as to defendants Verían Books, Inc., and S. D. Uslan, with costs to prevailing parties.