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Investigative reporter Seymour Hersh received a mixed ruling on his claim that the sellers of documents purportedly signed by John F. Kennedy, his brother Robert and his father, Joseph, wrongly used his name for advertising purposes. In a case of first impression, U.S. District Judge John S. Martin of the Southern District of New York said that Hersh failed to state a claim for unauthorized use in advertising under New York Civil Rights law. But Martin also ruled that Hersh had a cause of action against the sellers of the discredited “Cusack documents” for publishing promotional materials that suggested Hersh was engaged in a joint venture. The decision will be published Friday. The ruling in Cloud v. ABC Inc., 97 Civ. 8702, concerned Hersh’s investigation of the Kennedy brothers’ relationship with Marilyn Monroe for his book “The Dark Side of Camelot.” Lawrence Cusack Jr. alleged that he had found documents signed by the Kennedys in the files of his late father. While Cusack made the documents available to Hersh, other journalists who investigated the materials concluded they were forged, and Hersh reached the same conclusion. In November 1997, Thomas G. Cloud of Cloud & Associates Consulting Inc. and National Historical Autographs Inc., both based in Atlanta, sued Hersh and others in the Southern District of New York, claiming they were defamed by the journalists’ public statements that the Cusack documents were forgeries. But in March 1998, Cusack was arrested for fraud in connection with the documents. He was later convicted and sentenced to more than 10 years in prison. Hersh had counterclaimed under ��50 and 51 of the New York Civil Rights Law, charging that the plaintiffs had used his name in advertising the sale of the documents in newsletters. Judge Martin said that Cloud and National Historical Autographs conceded they referred to Hersh by name in the newsletters, “but claim that only two of the recipients were in New York,” and the use of Hersh’s name was only incidental. They also claimed that Hersh had authorized the use by written agreement and that parole evidence supported their allegation. Judge Martin noted that the 2nd U.S. Circuit Court of Appeals has strictly limited claims under ��50 and 51 to the use of pictures, names and portraits that are used only for advertising or for purposes of trade. NOVEL QUESTIONS “The application of these principles to the facts of this case presents an apparently novel question since none of the authorities cited by the parties involve similar facts,” Judge Martin said. “Here, the newsletters were not a traditional form of advertising and Hersh’s name was used in different contexts.” Some newsletters, the judge said, stated truthfully that Hersh was working on a book about the Kennedys, and “that the publication of his book was likely to enhance the value of the Cusack documents.” “Other newsletters added the fact, truthful at the time, that Hersh was using the documents and would be referring to them in the book,” he said. Judge Martin, in trying to determine how the New York Court of Appeals would interpret ��50 and 51 in this context, said he believed the court would find that “to the extent that Plaintiffs did no more than tell their customers that Hersh was writing a book about the Kennedys that would refer to the Cusack documents, they were not appropriating Hersh’s name.” “They were reporting an event that was particularly newsworthy to their clients,” he said. But two of the newsletters, he said, were actionable, “because they suggest that Hersh and Plaintiffs are engaged in a joint venture.” “By suggesting a joint venture between Plaintiffs and Hersh, Plaintiffs attempted to appropriate the commercial value of Hersh’s name,” said Judge Martin. SPOLIATION CLAIM DENIED Judge Martin went on to deny a claim by Cloud and the autograph company for spoliation of evidence, a claim based on Hersh’s destruction of his copies of the documents once he believed they were phony. “Given Plaintiffs’ admission that the destruction of documents did not occur until Hersh was convinced that the Cusack papers were forged, there is no basis for inferring that, at the time of the alleged destruction of documents, Hersh knew or should have known that he would ultimately be named in a bizarre lawsuit in which people who he believed defrauded him would sue for defamation,” Martin said. Michael Nussbaum and J. Steven Baughman of Ropes & Gray in Washington, D.C., represented Hersh. Carl E. Person of New York City represented the plaintiffs.

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