## 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

1. 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.
2. 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.


Toscani v. Hersey, 271 A.D. 445, 65 N.Y.S.2d 814 (App. Div. 1st Dep’t 1946)