## Facts

- Sports Illustrated published an action photograph of professional football player Joe Namath in connection with news coverage of the 1969 Super Bowl.
- The original publication of the photograph in an editorial, news context was lawful and drew no objection from Namath.
- Time Inc. later reused the same photograph in advertisements soliciting subscriptions to Sports Illustrated.
- The subscription advertisements ran in other magazines and used promotional text inviting readers to subscribe to learn more about Namath.
- The advertisements did not state or clearly imply that Namath endorsed Sports Illustrated.
- Namath sued under New York Civil Rights Law §§ 50–51, alleging his photograph was used for advertising or trade purposes without written consent.
- The trial court dismissed the complaint; Namath appealed.

## Issues

1. Whether reuse of a previously published, newsworthy photograph in advertisements promoting subscriptions to the same magazine constitutes use “for advertising purposes” or “for the purposes of trade” under New York Civil Rights Law §§ 50–51.
2. Whether such reuse is exempt as “incidental advertising” that illustrates the content and quality of the periodical, so long as it does not imply the subject’s endorsement.

## Decision

- The Appellate Division affirmed dismissal of the complaint.
- The court held the advertisements were “incidental advertising” of the magazine in which Namath had been properly and fairly depicted.
- The court concluded the promotional language did not indicate Namath’s endorsement of Sports Illustrated.
- Because the advertisements illustrated the magazine’s content rather than using Namath’s persona as an independent commercial endorsement, no liability attached under §§ 50–51.

## Legal Principles

- New York Civil Rights Law §§ 50–51 require written consent to use a person’s name or picture for advertising purposes or for purposes of trade.
- A media defendant may reuse a photograph that was originally lawfully published in a news/editorial context to advertise the same periodical, where the reuse serves to illustrate the publication’s content and quality (“incidental advertising”).
- The incidental advertising protection is stronger where the advertisement does not convey that the depicted person endorses the publication or another product.
- A subject’s public-figure status and commercial endorsement value do not, by themselves, convert a content-illustrating subscription advertisement into an actionable trade or advertising use.

## Conclusion

The court held that a magazine’s reuse of a previously published, newsworthy photograph in subscription advertisements is not actionable under New York Civil Rights Law §§ 50–51 when the reuse functions as incidental advertising of the magazine’s own content and does not imply the subject’s endorsement.


Namath v. Sports Illustrated, 371 N.Y.S.2d 10 (App. Div. 1st Dep’t 1975)