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Define That Term #68

Who Had the Last Laugh After All?

On Friday, March 17, the Fourth Department handed down a number of decisions that are interesting, both factually and legally.  I'll be posting about the decisions over the next few weeks.

The first decision that caught my eye was Walter v. NBC Tel. Network, Inc., 2006 NY Slip Op 01929.  In this case, the plaintiff commenced an action against her former employer, Dorschel Automotive Group, Inc., a Rochester car dealership, and NBC Universal Inc., alleging, among other things, that the defendants violated her civil rights pursuant to Civil Rights Law ss. 50 and 51, as a result of Jay Leno's use of her photo during a comedic "Headlines" segment of "The Tonight Show".  This type of civil rights claim was previously discussed in this post.

In regard to NBC, the Court stated held that the the comedic component of the newsworthiness exception to CRL ss. 50 and 51 claims applied, and thus NBC was not liable to the plaintiff.  The Court stated:

Here, the use of plaintiff's photograph by the NBC defendants was not strictly limited to a commercial appropriation, and thus the use of the photograph does not fall within the ambit of those sections of the Civil Rights Law...A performance involving comedy and satire may fall within the ambit of the newsworthiness exception even if the performance is not related to a legitimate' news broadcast [or event].  (Internal citations and quotations omitted).

As to Dorschel, the Court concluded that it was not entitled to summary judgment pursuant to the newsworthiness exception:

Dorschel failed to establish as a matter of law that it did not submit plaintiff's photograph, which bore a caption listing the name of its business, its area code, and part of its telephone number, to the NBC defendants "for advertising purposes, or for the purposes of trade" (§ 50).

I wonder if any financial benefit obtained by Dorschel as a result of the Jay Leno show bit is now outweighed by the cost of legal fees in defending this matter?  I question whether this type of claim is covered by your average insurance liability policy, so the legal fees might very well be out of pocket.  Who's having the last laugh now?

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