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Appropriation - Incidental Use "what drives the exception is a First Amendment interest in protecting the ability of the media to publicize its own communications." Groden v. Random House (1994) Lane v. Random House, 23 MLR 1385 (DC DC, 1995) In conjunction with the thirtieth anniversary of President Kennedy's assassination, defendant Random House, Inc. published Case Closed, a book written by defendant Gerald Posner . Case Closed challenges many of the conspiracy theories which have been developed around the Kennedy assassination, concluding that they are flawed and that Oswald acted alone. Mark Lane is one of the "conspiracy critics" Posner discusses. In advertising for the book, a photo of Lane and quotations attributed to Lane are used. Lane and the other critics are said to be "GUILTY OF MISLEADING THE AMERICAN PUBLIC." Lane sued claiming that his name and likeness were misappropriated to promote a book not about him, but about conspiracy arguments. The court disagreed: "Because Lane's picture and quotation are newsworthy and incidentally related to a protected speech product [i.e., the book] they cannot form the basis for a successful misappropriation claim. Random House may invoke either the newsworthiness privilege or the incidental use privilege."
Robert Groden is another of the "conspiracy critics." He too sued Random House based on the use of his photo and quotes in an ad for Case Closed. The court rejected his appropriation claim under New York law: "...Groden's photograph is not contained in Case Closed, despite the fact that the Book mentions him by name on several occasions and directly discusses his work. Nonetheless, it is clear that what drives the exception is a First Amendment interest in protecting the ability of the media to publicize its own communications. See Velez, 524 N.Y.S.2d at 187 (incidental use exception 'is a necessary and logical extension of the clearly protected editorial use of the content of the publication')....the fact that the Advertisement uses plaintiff's name and photograph to indicate the nature of the contents of Case Closed -- namely, a critique of the work of the pictured conspiracy theorists -- brings it within the ambit of the incidental use exception." See, also: Andersonv. Fisher Broadcasting Cos (Or. 1986)
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