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Toscani v. Hersey

271 A.D. 445, 65 N.Y.S.2d 814 (1946)

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Toscani v. Hersey

New York Supreme Court, Appellate Division

271 A.D. 445, 65 N.Y.S.2d 814 (1946)

Facts

John Hersey and others (collectively, Hersey) (defendants) published a novel and produced a play (the works), both of which were entitled A Bell for Adano. The works depicted the events of a senior military officer with a fictitious name who served in the Allied Military Government in a fictitious Sicilian town during World War II (WWII). Frank E. Toscani (plaintiff), a senior military officer who served in the Allied Military Government in Sicily during WWII, filed suit against Hersey in New York state court for invasion of privacy. Under a New York law, a defendant was guilty of a misdemeanor and civilly liable for the defendant’s use of the name, portrait, or picture of the plaintiff without the plaintiff’s written consent. Toscani thus asserted that the works constituted a portrayal of Toscani without his consent in violation of his right to privacy. Hersey filed a motion to dismiss, arguing that Hersey has not used Toscani’s name, image, or likeness and thus had not invaded Toscani’s privacy. However, the lower court held in Toscani’s favor, and Hersey appealed.

Rule of Law

Issue

Holding and Reasoning (Callahan, J.)

Dissent (Dore, J.)

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