¶1Until the Legislature shall declare that the publication of the picture of a dead person without the consent of the heirs or next of kin is illegal, no action can be maintained for such publication, either on the theory of libel or violation of the right of privacy. Section 1340 of the Penal Law provides that “ A malicious publication, by writing, printing, picture, effigy, sign or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons, in his or their business or occupation, is a libel.”
¶2Assuming that the publication in question is punishable as libelous under the act, it does not follow that a civil action for libel is maintainable thereunder, or at common law. With the ethics of the publication in question a court does not concern itself. The article is humorous, but as to its taste it is questionable.
¶3Motion is granted. Order signed.