(concurring). I concur for affirmance, but for reasons differing somewhat from those stated in Judge Froessel’s able and comprehensive opinion. It seems to me that the televising of plaintiff’s act was, in undisputable fact, a use thereof “ for advertising purposes ”, without plaintiff’s consent. The performance of plaintiff’s trained animals became part of a long televised show sponsored by, and advertising the product of, a manufacturer of cigarettes. But that does not end this case. My difficulty is that there was no invasion of any “ right of privacy ”. Plaintiff, a professional entertainer, gave his show before a vast audience in an athletic stadium. His grievance here is not the invasion of his “ privacy ” — privacy is the one thing he did not want, or need, in his occupation. Plis real complaint, and perhaps a justified one, but one we cannot redress in this suit brought under the New York “ Right of Privacy ” statutes, is that he was not paid for the telecasting of his show. The decision (Roberson v. Rochester Folding Box Co., 171 N. Y. 538) that led to the enactment of article 5 of the Civil Rights Law, the language of that article itself, and a long-series of construing decisions (many of them mentioned in Judge Froessel’s opinion), all show that the intent of the “ Privacy ” statutes was to forbid and punish the exploitation, for gain, of a man’s individual personality, that is, invasions of his right to be let alone. Enacted to fill a gap in existing law, article 5 should not be held to apply to a violation of a contract right to be compensated for public or semipublic theatrical, or similar, exhibitions. In no real sense was plaintiff’s “ privacy ” *362infringed upon.- These statutes have always been narrowly construed, and what plaintiff is asking for is the broadest kind of application.
Lewis, Conway and Dye, JJ., concur with Froessel, J.; Desmond, J., concurs for affirmance in separate opinion: Loughran, Ch. J., and Fuld, J., dissent.
Judgment affirmed.