The use of the “name, portrait or picture of a living person in truthfully recounting or portraying an actual current event ” is not proscribed by section 51 of the Civil Rights Law (Binns v. Vitagraph Co. of America, 210 N. Y. 51, 56). The same is true with reference to a past newsworthy *491event if it bears some relationship to the current event portrayed. The difficulty with the position of the defendant Time is that it portrayed the previous Hill incident in a highly sensational manner and represented that the play was a true version of that event. It was not. It was fictionalized and the jury so found. Consequently it violated section 51 of the Civil Rights Law (see Gautier v. Pro-Football, Inc., 278 App. Div. 431, 435; Molony v. Boy Comics Publishers, 277 App. Div. 166, 169; Lahiri v. Daily Mirror, 162 Misc. 776).
Properly presented, the Hill incident could have been referred to in the article reviewing the play without subjecting the defendant to liability despite the fact that to do so would constitute an invasion of the Hills’ privacy and might cause them grief and distress. The right of privacy must give way to the public interest in having newsworthy material disseminated albeit the presentation of such newsworthy material increases the publisher’s circulation and a trade benefit flows therefrom (see Gautier v. Pro-Football, Inc., supra, p. 435; Thompson v. Close-Up, Inc., 277 App. Div. 848).
However, if it can be clearly demonstrated that the newsworthy item is presented, not for the purpose of disseminating news, but rather for the sole purpose of increasing circulation, then the rationale for exemption from section 51 no longer exists and the exemption should not apply. In such circumstance the privilege to use one’s name should not be granted even though a true account of the event be given—let alone when the account is sensationalized and fictionalized. Such a rule would accomplish the purpose sought to be achieved by the section and furthers the attempt to curb the evils these sections seek to avoid (see Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 [1890]; Roberson v. Rochester Folding Box Co., 171 N. Y. 538; Lahiri v. Daily Mirror, 162 Misc. 776, supra).
This concept is not unusual or foreign to our law. It is analogous to the theory upon which liability is imposed in defamation actions upon a defendant who asserts a qualified privilege. Such privilege is held to be no defense where it is demonstrated that the defamatory material was published with malice. Thus, in this case the defense that the article treats with a newsworthy event is to no avail if it was published, not for the purpose of disseminating news but rather for the sole purpose of enhancing appellant’s sales of its magazine. The record in this case permits of such a finding and such a finding would be well supported by the evidence. It is quite obvious that the reference to the Hill incident was not incidental to the review of the play. It would seem that the converse is true and it is *492quite apparent that its portrayal in such a sensational and fictional manner was not for its newsworthy content but for the purpose of trade.