## Facts

- Jamie Messenger, age 14, posed for photographs in New York for publication in *Young & Modern* (YM), a teen magazine published by Gruner + Jahr Printing & Publishing.
- YM did not obtain written consent from Messenger’s parent or legal guardian.
- YM published three photographs of Messenger in its June/July 1995 issue to illustrate the recurring “Love Crisis” advice column.
- The column printed a letter from a 14-year-old identified as “Mortified,” describing getting drunk and having sex with her 18-year-old boyfriend and two of his friends; the page also displayed a bold pull-quote stating, “I got trashed and had sex with three guys.”
- Messenger alleged the photo-text pairing could lead readers to believe she was the letter writer and had engaged in the described conduct, though she had only modeled for the shoot.
- Messenger sued under New York Civil Rights Law §§ 50–51, alleging use of her picture “for advertising purposes or for the purposes of trade” without required written consent.
- A jury found for Messenger and awarded damages; Gruner + Jahr appealed, and the Second Circuit certified a question to the New York Court of Appeals regarding the scope of the newsworthiness/public-interest exception.

## Issues

1. Whether use of a person’s photograph alongside concededly newsworthy editorial content falls within the New York Civil Rights Law §§ 50–51 newsworthiness/public-interest exception.
2. Whether alleged “false implication” created by juxtaposing a plaintiff’s image with editorial text defeats the newsworthiness exception when the image bears a real relationship to the article.
3. What showing is required to take an editorial use outside the exception (e.g., disguised advertising, no real relationship, or manipulation/alteration rendering the portrayal fictitious).

## Decision

- The Second Circuit reversed the judgment for Messenger and remanded with directions to enter judgment for Gruner + Jahr.
- Applying the New York Court of Appeals’ guidance, the court held the “Love Crisis” column addressed matters of public interest for the magazine’s readership (teen sex, alcohol use, and consequences).
- The photographs were used as illustrations reasonably related to that editorial content, not as commercial advertising.
- The record did not support finding the use so fictitious or unrelated as to fall outside the newsworthiness exception.

## Legal Principles

- New York Civil Rights Law §§ 50–51 bars use of a person’s name or picture for advertising or trade purposes without written consent, but editorial uses connected to newsworthy or public-interest content are generally exempt.
- “Newsworthiness” is construed broadly and can include “soft news” and advice or feature content of legitimate public interest.
- The exemption is not available where the use is a disguised advertisement, is wholly unrelated to the editorial content, or is so manipulated/altered that it becomes fictitious (akin to a fabricated biography) and bears no real relationship to the subject matter.
- A commercial magazine’s profit motive and inclusion of advertising do not, by themselves, convert editorial content into advertising or trade use.

## Conclusion

The court held that publishing a minor model’s photographs to illustrate a teen advice column on sex and alcohol fell within the newsworthiness/public-interest exception to New York Civil Rights Law §§ 50–51, and the alleged false implication from the layout did not remove that protection absent a showing of disguised advertising, lack of a real relationship, or a portrayal rendered fictitious by manipulation or alteration.


Messenger v. Gruner + Jahr Printing & Publ’g, 208 F.3d 122 (2d Cir. 2000)