## Facts

- Archbishop Paul Marcinkus, head of the Vatican Bank, had become publicly notorious in connection with the Banco Ambrosiano collapse.
- NAL Publishing and related defendants published and distributed a suspense novel, *In the Name of the Father*, that used Marcinkus’s real name and office.
- The novel portrayed “Marcinkus” as a Vatican official who conceives and advances a plan to assassinate Soviet leader Yuri Andropov to prevent further attempts on the Pope’s life.
- The book included a prominent disclaimer stating it was a work of fiction and that the actions and motivations of real people appearing as characters were entirely fictional.
- Marcinkus alleged defendants also used his name and background in advertising and on the dust jacket, including a promotional statement presented as though it were his quote.
- Marcinkus sued under New York Civil Rights Law §§ 50–51 and sought a preliminary injunction barring use of his name and requiring recall and destruction of copies and promotional materials.
- Defendants cross-moved to dismiss for failure to state a claim under CPLR 3211(a)(7) and sought an order requiring plaintiff to post security.

## Issues

1. Whether using a living person’s real name and office in a clearly identified work of fiction constitutes use “for advertising purposes or for the purposes of trade” under New York Civil Rights Law §§ 50–51.
2. Whether the novel’s subject matter and depiction of a public figure fall within the newsworthiness/public-interest exception and First Amendment protection.
3. Whether use of the person’s name in dust-jacket and promotional materials for the book is independently actionable under §§ 50–51.

## Decision

- Plaintiff’s motion for a preliminary injunction was denied.
- Defendants’ cross-motion to dismiss under CPLR 3211(a)(7) was granted; the complaint was dismissed.
- The request to require plaintiff to post security was rendered moot by dismissal.
- The court held the novel’s use of plaintiff’s name and office, and related promotional references, did not state a claim under Civil Rights Law §§ 50–51.

## Legal Principles

- New York Civil Rights Law §§ 50–51 is limited to nonconsensual uses of a living person’s name, portrait, or picture “for advertising purposes or for the purposes of trade,” construed narrowly to avoid conflict with protected speech.
- Books are not treated as “advertising” or “trade” uses merely because they are sold for profit; expressive works concerning matters of public interest are generally exempt from §§ 50–51 liability.
- Fictional and fictionalized portrayals involving public figures and matters of public interest are protected where the work is presented as fiction rather than as factual biography or reportage.
- A clear disclaimer and the overall presentation of a work as fiction are relevant to whether a reasonable reader would view depictions as factual assertions.
- Promotional use of a person’s name may be actionable in some circumstances, but references incidental to advertising and distributing a protected expressive work do not convert the underlying protected publication into an actionable “advertising” use under §§ 50–51.

## Conclusion

The court dismissed the privacy claim and denied injunctive relief, ruling that a suspense novel’s clearly fictional use of a notorious public figure’s name and office—along with incidental promotional references—fell within protected expression and did not constitute an advertising or trade use under New York Civil Rights Law §§ 50–51.


Marcinkus v. NAL Publ'g, Inc., 138 Misc. 2d 256, 522 N.Y.S.2d 1009 (Sup. Ct. N.Y. Cnty. 1987)