## Facts

- A magazine published an editorial item discussing research suggesting caffeine exposure could increase sperm motility and possibly improve in vitro fertilization rates.
- The item was accompanied by a photograph depicting two adults with six children; the caption linked the image to the fertility topic.
- The individuals in the photo were not identified by name, and the text did not state they used caffeine or in vitro fertilization.
- The pictured family had no connection to the research and had not used in vitro fertilization.
- The family sued under New York Civil Rights Law §§ 50 and 51, alleging their photograph was used without written consent for “advertising purposes” or “purposes of trade.”

## Issues

1. Whether publishing the plaintiffs’ photograph without consent alongside an editorial item about fertility research constituted a prohibited “advertising” or “trade” use under New York Civil Rights Law §§ 50 and 51.
2. Whether the publication was exempt as “newsworthy” because the photograph bore a real relationship to a matter of legitimate public interest and was not an advertisement in disguise.

## Decision

- The Court of Appeals of New York affirmed dismissal of the complaint.
- Fertility and reproductive research were matters of legitimate public interest, bringing the publication within the newsworthiness exception to §§ 50–51.
- The photograph had a real relationship to the article’s subject (fertility) as an illustrative depiction of a large family.
- The use was part of an editorial feature, not a commercial promotion or disguised advertisement.
- Courts should not second-guess reasonable editorial choices in illustrating newsworthy content absent a purely commercial use.

## Legal Principles

- New York Civil Rights Law §§ 50 and 51 prohibit nonconsensual use of a living person’s name or picture only when used “for advertising purposes” or “for the purposes of trade.”
- The newsworthiness exception protects use of images illustrating matters of legitimate public interest when the use is editorial rather than promotional.
- A publication is privileged under the newsworthiness exception when the image and the article have a real relationship and the article is not a pretext for advertising.
- Lack of identification by name and absence of an explicit assertion about the depicted persons can support finding an illustrative, newsworthy use rather than a trade use.
- Editorial illustration by a for-profit publisher may still be protected when it serves a genuine informational purpose.

## Conclusion

Because the photograph reasonably related to an editorial discussion of fertility research and was not used to advertise or trade on the plaintiffs’ identities, the publication fell within the newsworthiness exception and did not violate New York Civil Rights Law §§ 50 and 51.


Finger v. Omni Publs. Int’l, Ltd., 77 N.Y.2d 138 (N.Y. 1990)