## Facts

- Ethel Levey, an actress and singer formerly married to George M. Cohan, sued Warner Bros. Pictures, Inc. under New York Civil Rights Law § 51.
- Warner Bros. produced and distributed *Yankee Doodle Dandy*, a dramatized film about Cohan made with Cohan’s written authorization.
- The film portrayed Cohan’s wife as a character named “Mary,” did not mention any divorce, and never used Levey’s name (including “Ethel Levey” or “Mrs. George M. Cohan”).
- The actress playing “Mary” did not resemble Levey and did not reenact any stage role performed by Levey.
- Levey alleged that “Mary” depicted her life with Cohan closely enough that viewers familiar with Cohan’s history would recognize “Mary” as Levey.
- Levey sought damages and an injunction against exhibition of the film in New York “in its present form.”
- The case was removed from state court to federal court on diversity grounds.

## Issues

1. Whether depicting a fictional wife-character allegedly based on the plaintiff constitutes a “use” of the plaintiff’s “name, portrait or picture” under New York Civil Rights Law § 51 when the plaintiff is not named and her likeness is not shown.
2. Whether indirect, inferential identifiability by some viewers is sufficient to satisfy § 51’s identification requirement.

## Decision

- The court dismissed the complaint on the merits and entered judgment for Warner Bros.
- The court held that Levey did not prove any use of her “name, portrait or picture” within the meaning of § 51.
- The court found the “Mary” character was not a statutory “portrait or picture” of Levey and was not clearly identified as Levey.

## Legal Principles

- New York Civil Rights Law § 51 is limited to unauthorized uses of a person’s “name, portrait or picture” for advertising or trade; it is not a general remedy for alleged privacy harms.
- A § 51 plaintiff must show that the challenged material uses the plaintiff’s name or likeness in a manner that clearly identifies the plaintiff.
- Using a different name and a non-resembling portrayal generally defeats a § 51 claim, even if some viewers might infer an association based on background knowledge.

## Conclusion

Because the film did not use Levey’s name and did not depict her likeness or clearly identify her through the “Mary” character, the court held that § 51 was not satisfied and dismissed Levey’s request for damages and injunctive relief.


Levey v. Warner Bros. Pictures, Inc., 57 F. Supp. 40 (S.D.N.Y. 1944)