## Facts

- Omni Publications International, Ltd. published a “Continuum” item in the June 1988 issue of *Omni* magazine titled “Caffeine and Fast Sperm.”
- The item reported research suggesting in vitro fertilization rates might improve by exposing sperm to high concentrations of caffeine.
- Omni used, without consent, a photograph depicting two adults with six children (the Finger family) alongside the item.
- The caption suggested that caffeine “spritzed” sperm swim faster and that this “may increase the chances for in vitro fertilization.”
- The article and caption did not identify the family by name and did not state that the adults used caffeine or that the children were conceived through in vitro fertilization.
- The parents, individually and as guardians for their children, sued under N.Y. Civil Rights Law §§ 50–51, alleging misappropriation of their likenesses for “advertising purposes” or “purposes of trade.”
- The trial court dismissed the complaint, the Appellate Division affirmed, and the plaintiffs appealed to the New York Court of Appeals.

## Issues

1. Whether publishing plaintiffs’ photograph without consent, in connection with an editorial item about fertility research, constituted use “for advertising purposes” or “purposes of trade” under N.Y. Civil Rights Law §§ 50–51.
2. Whether the publication fell within the newsworthiness/public interest exception because the photograph bore a sufficient relationship to the article’s subject.

## Decision

- The New York Court of Appeals affirmed dismissal of the complaint.
- The court held the item addressed a matter of legitimate public interest (fertility and reproductive research).
- The photograph of a large family had a sufficient “real relationship” to the general theme of fertility to qualify as illustrative editorial use.
- The publication was not an advertisement in disguise and was part of editorial content.
- The lack of identification of the family and the absence of any statement that they used caffeine or in vitro fertilization supported treating the use as noncommercial editorial illustration.

## Legal Principles

- N.Y. Civil Rights Law §§ 50–51 bars use of a living person’s name, portrait, or picture, without written consent, “for advertising purposes” or “for the purposes of trade,” and provides statutory remedies.
- A newsworthiness/public interest exception permits use of images in connection with reporting on news, public affairs, and matters of public interest.
- Courts generally defer to reasonable editorial judgment in assessing newsworthiness and illustration choices.
- Liability may arise where there is no real relationship between the image and the subject matter, or where an ostensible article functions as commercial advertising.

## Conclusion

Because the fertility item was newsworthy and the family photograph reasonably illustrated the article’s general theme, the court treated the publication as protected editorial use rather than commercial exploitation, and it affirmed dismissal under the newsworthiness exception to N.Y. Civil Rights Law §§ 50–51.


Finger v. Omni Publ’ns Int’l, Ltd., 77 N.Y.2d 138, 566 N.E.2d 141 (N.Y. 1990)