Stern v. Delphi

Citation: Stern v. Delphi Internet Services Corp., 165 Misc. 2d 21, 626 N.Y.S.2d 694 (N.Y. Sup. Ct. 1995).

Factual Background
Radio personality Howard Stern brought suit against Delphi Internet Services Corp. ("Delphi") for commercial misappropriation of his name and likeness based on Delphi's use of a picture of Mr. Stern exposing his buttocks to promote an online bulletin board service, which Delphi had set up for subscribers to debate the merits of Mr. Stern's 1994 candidacy for governor of New York.

Trial Court Decision
The court held that the "incidental use" exception, which is grounded in the First Amendment interest in protecting the ability of news disseminators to publicize their own communications, shielded Delphi from liability. The court analyzed the similarities between an online service and a news vendor or bookstore, or a letters-to-the-editor column of a newspaper, and concluded that Delphi was analogous to a television network in its dissemination of both news and entertainment.