Opinion
July 13, 1970
Appeal by defendant from so much of an order of the Supreme Court, Queens County, dated January 7, 1970, as denied its cross motion for summary judgment. Order affirmed insofar as appealed from, without costs. No opinion. Martuscello, Kleinfeld and Benjamin, JJ., concur; Munder, Acting P.J., and Latham, J., dissent and vote to reverse the order insofar as appealed from and to grant defendant's cross motion for summary judgment, with the following memorandum: This is an action, brought at the behest of plaintiff's brother, pursuant to sections 50 Civ. Rights and 51 Civ. Rights of the Civil Rights Law, to recover damages for invasion of privacy for the publication by defendant of a photograph of plaintiff on the cover of the March 17, 1969 issue of its magazine. The magazine featured several articles including one entitled "The Last of the Irish Immigrants". The photograph, which was taken on March 17, 1967, while plaintiff was standing on a public street watching the St. Patrick's day parade, shows him wearing an Irish hat. In our opinion, under these circumstances, the picture is not actionable as a use for the purpose of advertising or trade within the prohibition of the statute. Plaintiff's appearance and presence was a visual participation in this public event which invited special attention and was in keeping with the festive spirit of the occasion. Since the photograph appeared in an issue of the magazine which was published on St. Patrick's Day, it bore a reasonable connection to a matter of legitimate public interest ( Booth v. Curtis Pub. Co., 15 A.D.2d 343; Dallesandro v. Holt Co., 4 A.D.2d 470). We do not consider the fact that the photograph appeared two years after it was taken to be determinative. "The test of permissible use is not the currency of the publication in which the picture appears but whether it is illustrative of a matter of legitimate public interest" ( Dallesandro v. Holt Co., supra, p. 471).