## Facts

- Robert J. Groden co-authored *High Treason*, which argued that President Kennedy’s assassination resulted from a conspiracy.
- Random House published Gerald Posner’s *Case Closed*, which argued that Lee Harvey Oswald acted alone and criticized conspiracy accounts.
- To promote *Case Closed*, Random House ran an advertisement in *The New York Times* that displayed names, photographs, and quotations of several conspiracy authors, including Groden.
- The advertisement used the headline “GUILTY OF MISLEADING THE AMERICAN PUBLIC” and the tagline “ONE MAN. ONE GUN. ONE INESCAPABLE CONCLUSION.”
- Groden sued Random House, The New York Times entities, and Posner, alleging (1) false or misleading advertising under Lanham Act § 43(a) and (2) unauthorized use of his name and likeness under New York Civil Rights Law §§ 50–51.
- The district court entered judgment for defendants on all claims; Groden appealed.

## Issues

1. Whether the advertisement’s statements and presentation constituted false or misleading advertising actionable under Lanham Act § 43(a).
2. Whether using Groden’s name, photograph, and quotation in advertising *Case Closed* violated New York Civil Rights Law §§ 50–51, or fell within a protected exception for uses related to expressive works.

## Decision

- The Second Circuit affirmed judgment for defendants on all claims.
- The court held the challenged statements were non-actionable opinion and rhetorical hyperbole in the setting of a public controversy, not provably false factual claims about Groden or his book.
- The court held New York Civil Rights Law §§ 50–51 did not bar the advertisement because the use of Groden’s identity was reasonably related to the contents of *Case Closed*, which discussed and criticized his work.

## Legal Principles

- Lanham Act § 43(a) false-advertising liability requires a materially false or misleading representation of fact in commercial advertising or promotion that is likely to deceive consumers.
- Evaluative or polemical statements, especially in the context of public debate, are generally treated as opinion or rhetorical hyperbole and are not actionable as false statements of fact under § 43(a).
- Under New York Civil Rights Law §§ 50–51, use of a living person’s name or likeness for advertising without consent is barred only when the use is not reasonably related to the content of an expressive work being promoted.
- Advertising for an expressive work may lawfully reference individuals discussed or criticized in that work when the use informs consumers about the work’s subject matter rather than exploiting the person’s identity to sell unrelated goods.

## Conclusion

The Second Circuit held that sharply worded promotional copy for a nonfiction book arguing against conspiracy theories was protected as opinion for Lanham Act purposes, and that using a critic’s name, photo, and quotation in a book advertisement was permissible under New York law because it was tied to the book’s content.


Groden v. Random House, Inc., 61 F.3d 1045 (2d Cir. 1995)