Jamie Messenger v. Gruner + Jahr Printing & Publishing & Sally Lee

Diversity - New York Civil Rights Law Section 50 & 51 - Defamation - Intentional Affliction of Emotional Distress - Parental Consent - Negligence - Plaintiff, a 14-year-old aspiring Florida model, posed for a
series of photographs in New York to appear in Young and Modern
(YM), a magazine for teenage girls published by defendant Gruner
+ Jahr Printing. Plaintiff consented to the photo shoot, but YM
did not obtain written consent from her parent or legal guardian.
YM used the photos to illustrate the "Love Crisis" column in its
June/July 1995 issue.

The column began with a letter to Sally Lee, YM's
editor-in-chief, from a 14-year-old girl identified only as
"Mortified." Mortified writes that she got drunk at a party and
then had sex with her 18-year-old boyfriend and two of his
friends. Lee responds that Mortified should avoid similar
situations in the future, and advises her to be tested for
pregnancy and sexually transmitted diseases. Above the column, in
bold type, is a pull-out quotation stating, "I got trashed and
had sex with three guys." Three full-color photographs of
plaintiff illustrate the column - one, for example, shows her
hiding her face, with three young men gloating in the background.
The captions are keyed to Lee's advice: "Wake up and face the
facts: You made a pretty big mistake;" "Don't try to hide - just
ditch him and his buds;" and "Afraid you're pregnant? See a
doctor."

Plaintiff brought this diversity action in the United States
District Court for the Southern District of New York, alleging,
among other things, that YM violated sections 50 and 51 of the
New York Civil Rights Law by using her photographs for trade
purposes without obtaining the requisite consent. Defendants
moved for summary judgment, arguing that they could not be held
liable under the Civil Rights Law because the photographs had
been used to illustrate a newsworthy column, the pictures had a
real relationship to the article and the column was not an
advertisement in disguise. Plaintiff conceded these facts but
argued that the "newsworthiness" exception did not apply because
the column and pictures together created the false impression
that plaintiff was the author of the letter. The District Court
denied summary judgment, holding that the newsworthiness
exception does not apply where the juxtaposition of a photograph
to an article creates a substantially fictionalized
implication. The court dismissed plaintiff's
additional claims for defamation, intentional infliction of
emotional distress, negligent infliction of emotional distress
and negligence.

Following trial on the Civil Rights Law claim, the jury awarded plaintiff $100,000 in compensatory damages.

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This became a certified question answered for the Second Circuit United States Court of Appeals. See: ___ N.Y.2d ___ (2000), ___ N.Y.S.2d ___, ___ N.E.2d ___. Note: The above date reflects the Court of Appeals certified question date, not the original trial date. Reported by kkm.