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Keywords

plaintiffdefendantattorneystatutemotioncompliancecivil rightsmotion to dismiss

plaintiffdefendantattorneystatutemotiontrustcompliancecivil rightscommon law

Related Cases

Swacker v. Wright, 154 Misc. 822, 277 N.Y.S. 296

Facts

Frank M. Swacker, an attorney, claimed that his name was used in several books published by the defendants without his consent. Specifically, his name appeared in a book titled 'The Benson Murder Case' as a minor character's secretary, although he had never held such a position. The complaint alleged that the use of his name was for trade purposes, but the court noted that the name was used only in a cast of characters and not in a manner that would suggest a commercial purpose.

The plaintiff, Frank M. Swacker, is an attorney at law who has had an extensive practice, and who during the course of his career has acted as special assistant to the Attorney General of the United States in the prosecution of anti-trust cases. He claims that the defendants published certain designated books in which his name is used, although his consent to such use for the purpose of trade or for any other purpose was never given.

Issue

Did the defendants' use of Frank M. Swacker's name in their published works constitute a violation of section 51 of the Civil Rights Law, which requires consent for the use of a person's name for advertising or trade purposes?

Rule

Section 51 of the Civil Rights Law provides a remedy for any person whose name is used for advertising or trade purposes without consent. To invoke this statute, strict compliance must be shown, and the use of the name must be for commercial purposes.

Section 51 of the Civil Rights Law provides a remedy that did not exist at common law. To invoke the benefits of the statute, strict compliance therewith must be shown.

Analysis

The court analyzed the application of section 51 to the facts presented, determining that the mere use of the name 'Frank Swacker' in the books did not meet the threshold for relief under the statute. The court emphasized that there was no substantial connection between the plaintiff and the character depicted, and that the use of his name did not imply any commercial intent or advertising purpose.

The mere use of the plaintiff's surname and Christian name with his middle initial omitted without any other identifying feature cannot be held a sufficient basis for relief under the statute. Apart from the use of the name ‘Swacker,’ there is not a single parallel between the plaintiff and the character depicted in the books.

Conclusion

The court granted the motion to dismiss the complaint, concluding that the plaintiff's claims did not satisfy the requirements of section 51 of the Civil Rights Law.

The motion is granted.

Who won?

The defendants prevailed in the case because the court found that the use of the plaintiff's name did not constitute a violation of the Civil Rights Law, as it was not used for advertising or trade purposes.

The motion is granted.

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