## Facts

- Jamie Messenger, a 14-year-old model, posed for photographs intended for publication in a teen magazine.
- The publisher did not obtain written consent from Messenger’s parent or legal guardian.
- The magazine used Messenger’s photos to illustrate a “Love Crisis” advice column describing a 14-year-old who “got drunk at a party and then had sex” with multiple boys, with a bold pull-quote stating, “I got trashed and had sex with three guys.”
- The layout included captions keyed to the advice (e.g., urging the girl to “face the facts,” “ditch him and his buds,” and see a doctor), alongside photos suggesting shame and the presence of three young men.
- Messenger claimed the combined use of photos, captions, and pull-quote falsely implied she was the girl described, harming her reputation.
- Messenger sued under N.Y. Civil Rights Law §§ 50–51 for unauthorized use of her picture for “advertising purposes or for the purposes of trade.”
- A federal jury found for Messenger and awarded compensatory damages; on appeal, the Second Circuit certified a question to the New York Court of Appeals concerning the newsworthiness exception.

## Issues

1. Whether N.Y. Civil Rights Law §§ 50–51 permit recovery when a person’s photograph is used without required consent to illustrate a concededly newsworthy editorial column, allegedly implying the person is the subject of the story.
2. Whether the newsworthiness exception applies where the photo has a real relationship to the editorial content and the use is not an advertisement in disguise, but may create a false implication absent overt false statements or clear misidentification.

## Decision

- The Court of Appeals of New York answered the certified question in the defendant’s favor, holding Messenger could not recover under §§ 50–51 on these facts.
- The court held the “newsworthiness” exception barred liability because:
  - the advice column was newsworthy,
  - it was not an advertisement in disguise, and
  - the photographs bore a real relationship to the article.
- The court ruled that an alleged implied association is insufficient absent an overt false statement or clear misidentification indicating the picture was used to deceive the public.
- Judge Bellacosa dissented, reasoning the presentation created a damaging fictionalized implication amounting to an unauthorized commercial exploitation, particularly given Messenger’s status as a minor and lack of parental consent.

## Legal Principles

- N.Y. Civil Rights Law §§ 50–51 prohibit nonconsensual use of a person’s name or picture for advertising or trade, but exclude uses connected to matters of legitimate public interest (“newsworthiness” exception).
- A publication sold for profit may still be protected editorial content; profit motive alone does not convert a newsworthy use into “advertising” or “trade.”
- When an article is newsworthy, not an advertisement in disguise, and the image bears a real relationship to the editorial content, §§ 50–51 generally bar recovery.
- Liability in this setting requires indicia of deception, such as overt false statements, clear misidentification, or use as a subterfuge for commercial exploitation unrelated to editorial content.
- Sections 50–51 are narrowly construed and are not a substitute for broader false-light or defamation-by-implication theories.

## Conclusion

The court held that a publisher’s illustrative use of a model’s photograph in a concededly newsworthy advice column, where the image relates to the editorial content and is not a disguised advertisement, falls within the newsworthiness exception to N.Y. Civil Rights Law §§ 50–51 even if readers might infer the model is the story’s subject, absent overt falsity or clear misidentification.


Messenger v. Gruner + Jahr Printing & Publ'g, 94 N.Y.2d 436 (N.Y. 2000)