## Facts

- Burton, a well-known steeplechaser, posed for a cigarette advertisement campaign and was paid for the use of his likeness.
- The publisher ran an advertisement containing text and two photographs of Burton to promote Camel cigarettes.
- One photograph showed Burton seated and smoking under the legend “Get a lift with a Camel”; it was not independently alleged to be defamatory.
- A second, smaller photograph showed Burton walking from a race while carrying a saddle; a stirrup and a loosely hanging white girth created the appearance (as alleged) of indecent exposure or deformity.
- Burton alleged the photograph and accompanying legends were capable of portraying him as guilty of indecent exposure, physically deformed, mentally perverted, and as speaking salacious or obscene words.
- Burton alleged the publication subjected him to ridicule, scorn, and public reproach.
- The publisher asserted Burton consented by posing and accepting payment; Burton alleged he was never shown the particular photograph used after it was taken.

## Issues

1. Whether the advertisement, as pleaded, was capable of a defamatory meaning by exposing Burton to hatred, ridicule, contempt, or public scorn.
2. Whether Burton’s consent to pose for and be paid for advertising photographs barred the claim as a matter of law at the pleadings stage.

## Decision

- The Second Circuit reversed the dismissal of the complaint and remanded for further proceedings.
- The court held the complaint adequately alleged a publication susceptible of a libelous meaning based on the combined effect of the photograph and advertising text.
- The court held consent was not conclusively established on the pleadings because general permission to use one’s image in advertising did not necessarily include permission to publish a distorted, obscene, or humiliating depiction.

## Legal Principles

- A publication may be libelous if it is reasonably capable of exposing a person to ridicule, contempt, scandal, or public disgrace, including through pictorial depiction.
- Defamatory meaning can arise from the juxtaposition of image and text, even if the defamatory implication is created by visual appearance rather than express statements.
- On a motion directed to the pleadings, the court asks whether the challenged material is susceptible of the defamatory meaning alleged; if so, the claim may proceed.
- Consent to be photographed or to appear in advertising is limited to the scope of what was authorized; it does not necessarily extend to a materially distorted or obscene presentation that subjects the person to serious ridicule.
- Whether consent covers a specific use and whether the publication is defamatory in the alleged sense may require factual development and is not always resolvable as a matter of law at the pleadings stage.

## Conclusion

The Second Circuit held that Burton stated a plausible libel claim because the advertisement’s distorted photograph and accompanying legends could be read to portray him in an obscene and humiliating manner, and it further held that Burton’s paid participation in the photo session did not conclusively establish consent to that particular publication.


Burton v. Crowell Publ'g Co., 82 F.2d 154 (2d Cir. 1936)