## Facts

- The New York Times Magazine published a feature article titled “The Black Middle Class: Making It” about the social role of an expanding Black middle/professional class.
- The magazine cover displayed a prominent photograph of Clarence W. Arrington walking on a New York City street; the article text did not identify him by name.
- The photograph was taken in a public place by a freelance photographer without Arrington’s knowledge and was sold through a photo agency to the publisher.
- Arrington alleged the article conveyed controversial views he rejected and that using his image as the cover illustration portrayed him as an exemplar of the article’s message, subjecting him to ridicule and disparagement.
- Arrington sued the publisher, photographer, photo agency, and the agency’s president alleging (1) violation of New York Civil Rights Law §§ 50–51, (2) common-law invasion of privacy, and (3) constitutional privacy violations.

## Issues

1. Whether using Arrington’s photograph on a magazine cover to illustrate an article on a matter of public interest constituted use of his picture for “advertising purposes” or “purposes of trade” under New York Civil Rights Law §§ 50–51.
2. Whether New York recognizes a common-law privacy right supporting liability for nonconsensual publication in this context.
3. Whether publication of the photograph stated a constitutional right-to-privacy claim.
4. Whether the statutory claim should be analyzed differently for the publisher’s editorial use versus the photographer/agency’s commercial sale of the image.

## Decision

- The Court of Appeals affirmed dismissal of all claims against the New York Times Company.
- The court held the cover photo, used to illustrate an article on a matter of legitimate public interest, was not an “advertising” or “trade” use within §§ 50–51.
- The court reaffirmed that New York does not recognize a general common-law right of privacy beyond the statutory scheme.
- The court rejected the constitutional privacy claim because constitutional privacy protections generally require state action and do not bar truthful publicity by private media defendants in this setting.
- The court modified the judgment to reinstate the §§ 50–51 claim against the photographer, the photo agency, and its president, holding the pleadings were sufficient to proceed based on their commercial trafficking in the photograph.

## Legal Principles

- New York Civil Rights Law §§ 50–51 is limited to nonconsensual uses of a person’s name or picture for “advertising purposes” or “purposes of trade,” and is narrowly construed to avoid conflict with free-press interests.
- Editorial use of a photograph as an illustration for reporting or commentary on newsworthy matters or subjects of legitimate public interest is not a statutory “advertising” or “trade” use, even if the publication is sold for profit.
- Disagreement with a publication’s viewpoint, or an asserted lack of ideological “fit” between the subject and the article’s message, does not convert a newsworthy illustrative use into actionable statutory misappropriation absent materially false representation.
- New York does not recognize an independent common-law privacy tort; privacy protection is confined to the statutory provisions.
- Constitutional privacy doctrines generally restrict government action and do not create liability for private publishers for publishing a truthful image taken in public.
- Commercial sale and distribution of a person’s image by non-publisher intermediaries may constitute “trade” activity subject to §§ 50–51, depending on the pleadings and proof.

## Conclusion

The court held that a publisher’s nonconsensual use of a person’s photograph to illustrate a newsworthy article is protected as editorial content and is not “advertising” or “trade” under New York’s privacy statute, while allowing the statutory claim to proceed against the photographer and photo-agency defendants based on their commercial sale of the image.


Arrington v. N.Y. Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941 (N.Y. 1982)