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Howard Stern v. Delphi Internet Services Corporation

165 Misc. 2d 21, 626 N.Y.S. 2d 694 (Sup. Ct. N.Y.Co. 1995)

Defendant Delphi was an Access Provider which provided users with a number of additional products, including news stories, stock quotes, computer games, bulletin board message services, e-mail and on-line conferencing. Howard Stern was the controversial radio talk show host. As a promotional gimmick, Stern decided to run for governor of New York. Delphi created a bulletin board in which its paid subscribers were invited to discuss the merits of Mr. Stern's candidacy. To encourage participation in this on-line debate, Delphi ran full-page ads in various newspapers touting the bulletin board. Prominently featured in these ads were both Mr. Stern's name and a picture of him dressed in pants which revealed large portions of his buttocks (a picture for which Mr. Stern had posed in connection with the promotion of another project). Delphi did not obtain Stern's consent to utilize Stern's photo.

Stern objected to this use of his photo, and brought an action for injunctive and other relief pursuant to N.Y. Civil Rights Law sections 50 and 51. These statutes prohibited a defendant from using the name, portrait or picture of an individual for purposes of trade or advertising without the individual's written consent.

Defendant moved to dismiss the complaint on the ground that its use of Stern's photo fell within the incidental use exception to the statute. The incidental use exception to sections 50 and 51 permits news disseminators to utilize the photo of an individual to advertise its news related products, such as magazine articles, etc. The court agreed with the defendant, and dismissed the complaint. In so doing, the court held that Delphi was a news disseminator, who's bulletin board service was similar to a letters-to-the-editor column in a news publication. Said the court:

Because Stern's name was used by Delphi to elicit public debate on Stern's candidacy, logically the subsequent use of Stern's name and likeness in the advertisement is afforded the same protection as would be afforded a more traditional news disseminator engaged in the advertisement of a newsworthy product.

Of note, the court reached this conclusion despite the fact that the bulletin board service concerning Mr. Stern was not the only service provided by Delphi. Indeed, one could not obtain access to the bulletin board without also subscribing to Delphi's complete range of services. This in turn made plain the true purpose behind the bulletin board service -- not to "debate" the merits of Mr. Stern's surreal candidacy, but rather to promote the sale by Delphi to the public of its package of services, which consisted principally of Internet access. This did not cause the court to alter its conclusion. Said the court:

Although only paid subscribers may access Delphi's online information services from their computers or terminals, this service is analogous to that of a news vendor or bookstore, or a letters-to-the-editor column of a newspaper, which required purchase of their materials for the public to actually gain access to the information carried.

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