Facts
- Frank E. Toscani, a U.S. Army officer who served in the Allied Military Government in Sicily during World War II, sued John Hersey and others involved in a novel and play titled A Bell for Adano.
- The works depicted a senior military officer administering a Sicilian town under Allied occupation.
- The officer-character and the town were given fictitious names, but Toscani alleged the storyline and circumstances paralleled his real service and effectively portrayed him.
- Toscani asserted two causes of action under New York Civil Rights Law § 51, alleging an unauthorized use of his identity for purposes of trade without written consent.
- Defendants moved to dismiss for legal insufficiency, arguing § 51 applies only to use of a living person’s “name, portrait, or picture,” none of which were used.
- The trial court denied dismissal as to the § 51 claims, and defendants appealed.
Issues
- Whether a plaintiff states a claim under N.Y. Civil Rights Law § 51 by alleging that a fictional character in a novel and play was intended to represent him, despite no use of his actual name, portrait, or picture.
- Whether § 51 reaches alleged “identifiable” or “recognizable” fictional portrayals absent the statute’s enumerated forms of use.
Decision
- The Appellate Division, First Department reversed the order to the extent it denied defendants’ motion to dismiss.
- The court dismissed the § 51 causes of action for failure to state a claim.
- The court held that § 51 did not apply because the works did not use Toscani’s name, portrait, or picture.
Legal Principles
- N.Y. Civil Rights Law § 51 is limited to unauthorized use of a living person’s “name, portrait, or picture” for advertising purposes or for purposes of trade; courts will not expand liability beyond the statute’s text.
- Because the statutory right is in derogation of the common law, it is construed strictly.
- Allegations that a fictional character is based on, resembles, or is recognizable as the plaintiff do not satisfy § 51 absent use of the plaintiff’s actual name or likeness within the statutory terms.
- New York’s privacy protection under §§ 50–51 is statutory, and any broader protection against fictionalized portrayals must come from legislative change rather than judicial extension.
Conclusion
The court held that § 51 provides no remedy for an allegedly recognizable fictional portrayal where the defendants used neither the plaintiff’s actual name nor his portrait or picture, and it dismissed the statutory privacy claims.