V  I  R  G  I  N  I  A:

               IN THE CIRCUIT COURT OF ARLINGTON COUNTY

U.S. NEWS & WORLD REPORT, INC.,   |
                                  |
          Plaintiff,              |
                                  |
    v.                            |    At Law No. 95-1318
                                  |
RAM AVRAHAMI,                     |
                                  |
         Defendant.               |

                      RAM AVRAHAMI'S TRIAL BRIEF

     Ram Avrahami's name is his personal property.  Virginia law
prohibits anyone else from using his name for advertising purposes or
purposes of trade without Mr. Avrahami's written consent.  In violation
of Virginia law, U.S. News & World Report has so used Mr. Avrahami's
name.

     On April 12, 1995, U.S. News shipped a mailing list of 100,000 names
and addresses to the Smithsonian Magazine.  U.S. News made the shipment
under a List Exchange Agreement that the two publishing companies had
made on March 3, 1995.  The transaction was for advertising purposes and
for purposes of trade.  U.S. News wanted to sell subscriptions to readers
of the Smithsonian Magazine.  The Smithsonian Magazine wanted to sell
subscriptions to readers of U.S. News.  By exchanging their subscriber
lists, the two publications acquired the names and addresses of
prospective new customers to whom they could send promotional materials.

     The mailing list shipped by U.S. News included Mr. Avrahami's name
and address, although his name was misspelled Ram Avrahani.  Mr. Avrahami
introduced the misspelling when he subscribed to U.S. News so that he
could identify U.S. News as the source of any mail solicitations he
received with his name misspelled in that way.  Mr. Avrahami soon
received a mail solicitation from the Smithsonian Magazine, addressed to
his home, with his name misspelled Avrahani.  Subsequently, he received
solicitations from other organizations with his name identically
misspelled.

     Mr. Avrahami seeks an injunction restraining U.S. News from
continuing to sell, lease or trade his name without his consent.  U.S.
News, in contrast, seeks a declaratory judgment that it may continue to
sell, lease and trade Mr. Avrahami's name, irrespective of whether he has
consented.  This Trial Brief will show why the Court should grant Mr.
Avrahami's request for an injunction and deny U.S. News' request for a
declaratory judgment.

                               ARGUMENT
     By Virginia Code  8.01-40 (A), the General Assembly established and
protected a person's property right in his own name.  The statute
provides:
     Any person whose name, portrait or picture is used without
     having first obtained the written consent of such person ...,
     for advertising purposes or for the purposes of trade, such
     persons may maintain a suit in equity against such person, firm
     or corporation so using such person's name, portrait or picture
     to prevent and restrain the use thereof; ... 
Va. Code Ann. 8.01-40 (A) (Michie 1995).  The statute also provides that
a person aggrieved by the unlawful use of his name may recover his actual
damages and, if the defendant "knowingly" used his name, punitive
damages.

     According to the Virginia Supreme Court, Virginia Code  8.01-40 (A)
"creates in an individual a species of property right in their name and
likeness."  Lavery v. Automation Management Corporation, 234 Va. 145, 154
(1987) (misappropriation of a person's name is subject to the 5-year
statute of limitations applicable to injuries to property).  "In
Virginia, one holds a property interest in one's name and likeness." 
Town & Country Properties v. Riggins, 249 Va. 387, 397 (1995).

     Virginia's privacy act has two branches.  It prohibits the
unauthorized use of a person's name either for "advertising" or for
"purposes of trade."  These are "separate and distinct statutory
concepts."  Town and Country Properties v. Riggins, supra, 249 Va. at
387.  Therefore, U.S. News violated the statute if it used Mr. Avrahami's
name, without his consent, for either purpose.

     U.S. News' transmittal of Mr. Avrahami's name to the Smithsonian
Magazine pursuant to the List Exchange Agreement plainly was for
advertising purposes.  The object of the List Exchange Agreement was to
permit each publication to send promotional materials through the mail to
the other's subscribers.  Therefore, Mr. Avrahami is entitled to recover
under the "advertising" branch of the privacy act.

     U.S. News's transmittal of Mr. Avrahami's name was also for the
purposes of trade.  U.S. News received valuable consideration in exchange
for providing Mr. Avrahami's name to the Smithsonian Magazine.  Because
Mr. Avrahami's name is his property, U.S. News has no right to profit
from selling, leasing or trading Mr. Avrahami's name without his consent. 
By exchanging Mr. Avrahami's name for something of value, U.S. News
committed the tort of conversion, the civil wrong that occurs when "a
defendant uses another's property as its own and exercises dominion over
it without the owner's consent."  Town & Country Properties v. Riggins,
supra, 249 Va. at 397.

     The value that U.S. News attached to Mr. Avrahami's name may be
gleaned from Direct Marketing List Source, a national bi-monthly
publication that serves the direct marketing industry.  The April 1995
edition, which appeared shortly before U.S. News transmitted Mr.
Avrahami's name to the Smithsonian Magazine, contains a notice that
offered the names and addresses of U.S. News' subscribers for rental at
a price of $80.00 per one thousand names.<1>  The same notice stated that
special segments of U.S. News' subscriber list were available at an extra
charge.  A separate notice on the same page offered the names of
subscribers to a "blue chip" edition of U.S. News & World Report
"distributed to subscribers in affluent neighborhoods and quasi-public
locations" for rental at a higher base price of $85.00 per thousand
names.  The obvious purpose of these rentals was U.S. News' own pecuniary
gain, clearly a purpose of trade.

     Mr. Avrahami need not be a celebrity to prevent U.S. News from
exploiting his name, nor must he show that the pecuniary benefit to U.S.
News was substantial.  "[H]owever little or much plaintiff's likeness and
name may be worth, [a] defendant who has appropriated them for commercial
benefit should be made to pay for what he has taken, whatever it may be
worth."  Lavery v. Automation Management Corporation, supra, 234 Va. at
153, quoting Canessa v. J.I. Kislak, Inc., 235 A.2d 62, 75 (N.J. Super.
1967).

     The original "privacy act," New York Civil Rights Law  50 and 51
(from which Virginia Code  8.01-40 (A) was derived), was intended to
protect ordinary citizens.  The New York legislature enacted the privacy
act in 1903 in response to Robertson v. Rochester Folding Box Co., 171
N.Y. 538, 64 N.E. 442 (1902), where the plaintiff, a little girl who was
not a celebrity, sued the defendants for using her picture to promote the
sale of flour.  The New York Court of Appeals held that the little girl
had no common law "right to privacy," but observed that the legislature
could create such a right.  The New York privacy act was enacted in
response to this observation.  See Time, Inc. v. Hill, 385 U.S. 374, 380
- 381 (1967); Spahn v. Julian Messner, Inc., 221 N.E.2d 543, 544 (N.Y.
1966).

     The privacy act not only prohibits the use of a person's name to
promote a product or service, but also prohibits any other commercial
exploitation of a person's name.  The "social desirability and remedial
nature" of the privacy act require a "liberal construction" of the phrase
"for the purposes of trade."  Spahn v. Julian Messner, Inc., 221 N.E.2d
543, 544 (N.Y. 1966).  In Spahn the court held that a fictitious
biography of baseball pitcher Warren Spahn violated New York's privacy
act because the publication constituted "an unauthorized exploitation of
his personality for purposes of trade."  Id., 221 N.E.2d at 546.  If a
fictionalized biography is a misappropriation of a person's name for
purposes of trade, then an outright sale, rental or exchange of a
person's name must likewise constitute a prohibited misappropriation.

     Many cases decided under the "purpose of trade" branch of privacy
acts have dealt with the unauthorized sale of a person's photograph. 
Generally, privacy acts prohibit photographers from selling photographs
of a person without that person's consent.  See, Arrington v New York
Times Co., 434 N.E.2d 1319 (N.Y. 1982); Barrows v. Rosansky, 489 N.Y.S.2d
481 (A.D. Dept. 1 1985); Holmes v. Underwood, 233 N.Y.S. 153 (A.D. Dept.
1 1929); Mendonsa v. Time, Inc., 678 F.Supp. 967 (D.R.I. 1988).  The only
exception to this rule applies to photographs appearing in publications
protected by the First Amendment.

     Arrington illustrates both the rule and the exception.  The court in
Arrington held that "a picture illustrating an article on a matter of
public interest is not considered use for the purposes of trade or
advertising within the prohibition of the statute ... unless it has no
real relationship to the article ... or unless the article is an
advertisement in disguise.  ..."  434 N.E.2d at 1318.  Based on this
principle, the court held that the New York Times could not be held
liable under the New York privacy act for publishing the unauthorized
photograph of a Afro-American man, Arrington, in an article concerning
the role of the expanding black middle class in today's society. 
However, the court held that Arrington had nevertheless stated a claim
under the privacy act against the photographer who took Arrington's
photograph and sold it to the New York Times.  The photographer's sale of
Arrington's image was for purposes of the photographer's trade and was
not an expression protected by the First Amendment<2>.

     The court came to a similar result in Mendonsa v. Time, Inc., supra,
regarding Time, Inc.'s commercial exploitation of the famous photograph
of a sailor kissing a nurse in Times Square at the end of World War II. 
Mendonsa contended that he was the "kissing sailor" and that Time, Inc.,
had violated his rights under Rhode Island's privacy act by making
commercial use of his photograph.  The United States District Court for
the District of Rhode Island held that the initial publication of the
photograph in Life Magazine did not violate the privacy act because that
publication used the photograph to illustrate a newsworthy event. 
However, Time's subsequent offer to sell reprints of the photograph to
the public at $1,600.00 a copy violated the "purpose of trade" branch of
the privacy act by exploiting Mendonsa's likeness for commercial
purposes.

     Arrington, Mendonsa and the other photograph cases show that privacy
acts prohibit the unauthorized sale of a persons' likeness.  The same
rule applies to the unauthorized sale of a person's name because
Virginia's privacy act (like New York's and Rhode Island's) prohibits the
commercial exploitation of a person's "name, portrait or picture"
(emphasis supplied).  Therefore, a person's right to his own name is
entitled to the same protection as his right to his own likeness.  A
person's name can neither be sold without the owner's consent, nor
rented, nor exchanged, nor otherwise exploited for commercial purposes.

     Although the courts have created exceptions to privacy acts in order
to protect freedom of expression, none of those exceptions apply here. 
One such exception is the "incidental use" doctrine, which holds that the
publication of a person's name in a book, newspaper or magazine generally
cannot give rise to a claim under a privacy act, unless the name had no
real relationship to the article or was an advertisement in disguise. 
Although mentioning a person's name in an newspaper article may promote
the sale of newspapers, that use is regarded as "incidental" to the
newspaper business, and therefore outside the prohibition of a privacy
act.  The rationale for the incidental use doctrine and similar
exceptions is that, "ever mindful that the written word or picture is
involved, courts have engrafted exceptions and restrictions onto the
statute to avoid any conflict with the free dissemination of thoughts,
ideas, newsworthy events, and matters of public interest."  Spahn v.
Julian Messner, Inc., supra,221 N.E.2d at 444 - 445.  As noted above, the
court in Spahn held such exceptions inapplicable to a fictionalized
biography.

     Privacy act exceptions designed to protect freedom of expression
plainly are inapplicable here.  U.S. News' use of Mr. Avrahami's name was
not "incidental" to any protected expression.  Although U.S. News must
use the names of persons like William Clinton or Robert Dole as an
incident of reporting newsworthy events, reporting the news does not
require U.S. News to rent or exchange the names of its subscribers.

     Nor can subscriber names be characterized as merely "incidental" to
U.S. News' mailing list exchange with the Smithsonian Magazine.  The
whole object of the transaction was to exchange subscriber information,
and the subscribers' names were hardly "incidental" to that purpose in
the ordinary sense of the word.  More important, the exchange of
subscriber lists was hardly an expression of "thoughts, ideas, newsworthy
events or matters of public interest" as described in Spahn; rather, the
exchange was simply a commercial transaction to facilitate each
publication's marketing efforts.  Therefore, the mailing list exchange
was not the kind of transaction that comes within any constitutionally-
based exception to the privacy act.

     U.S. News argues that Avrahami has no privacy interest in his name
because his name is printed in the telephone book.  This argument is
specious.  In Town & Country Properties v. Riggins, supra, a former
professional football player, John Riggins, sued a real estate agency for
using his name in an advertising flier for the sale of Mr. Riggins'
former home.  The real estate agency argued that, because Mr. Riggins'
former ownership of the home was information "freely available to the
general public from the Fairfax County land records," Mr. Riggins had "no
privacy interest" in the subject matter of the advertising flier.  249
Va. at 394.  The Virginia Supreme Court rejected this argument, holding
that the flier used Mr. Riggins name for advertising purposes and that
this use violated Virginia Code  8.01-40 (A).  294 Va. at 396.  Thus,
the availability of Mr. Avrahami's name from the telephone book neither
deprives him of his statutory right to privacy nor constitutes the
consent required for U.S. News to use Mr. Avrahami's name for the
purposes of trade.

     Nor did Mr. Avrahami forfeit his rights under the privacy act by
changing one letter of his name when he subscribed to U.S. News.  Mr.
Avrahami's intention plainly was to order a subscription for himself, not
for a non-existent person named Ram Avrahani at the same address.  As
stated above, the purpose of the misspelling was to enable Mr. Avrahami
to detect and trace any misappropriation of his name.  Now that U.S. News
has been caught red handed, it complains of Mr. Avrahami's "trickery." 
This is a bit like a bank robber complaining that the bank tricked him by
marking the $100 bills he stole.

     The misspelling did not mislead U.S. News concerning the identity of
its subscriber.  The surname Avrahami is uncommon in Virginia.  Mr.
Avrahami's first name, Ram, is likewise uncommon.  The Bell Atlantic
White Pages for Northern Virginia for the period January 1996 through
December 1996 has only one listing for the surname Avrahami, and that is
for Ram Avrahami, the party in this case; the telephone book has no
listings for the surname Avrahani.

     U.S. News accepted Mr. Avrahami's check in payment of his
subscription, although his name on the check was Avrahami, not Avrahani. 
The United States Post Office successfully delivered copies of U.S. News
& World Report to Mr. Avrahami, notwithstanding the misspelling of his
name on U.S. News' address labels.  The misspelling was so minor that it
could not have misled anyone as to the identity of the person to whom the
name Ram Avrahani referred, especially since the name was accompanied by
Mr. Avrahami's first name and his address.

     The object of the privacy act is not to protect names.  A name is
only a symbol for a person.  The true object of the privacy act is to
protect a person from an "unauthorized exploitation of his personality
for purposes of trade."  Spahn v. Julian Messner, Inc., supra, 221 N.E.2d
at 546.  Such an exploitation can be accomplished by any combination of
pictures or symbols that "unmistakably identify" the individual to whom
they refer.  See Orsini v. Eastern Wine Corporation, 73 N.Y.S.2d 426
(Sup. Ct. 1947) (use of surname accompanied by coat of arms); People ex
rel Maggio v. Charles Scribner's Sons, 130 N.Y.S.2d 514 (City Mag. Ct.
1954).  Here, the individual that U.S. News identified to the Smithsonian
Magazine cannot be mistaken for anyone other than Ram Avrahami.

     When U.S. News traded or rented Mr. Avrahami's name and address to
the Smithsonian Magazine and others, it identified Mr. Avrahami and
enriched itself just as surely as if Mr. Avrahami's name had been spelled
correctly.  Mr. Avrahami's privacy was invaded to the same extent as if
his name had been spelled correctly because U.S. News' rentals or
exchanges of his name exposed Mr. Avrahami to unwanted attention from the
Smithsonian Magazine and other strangers, who proceeded to contact
Avrahami by direct mail at his home in Arlington.  Therefore, the minor
misspelling introduced by Mr. Avrahami works no forfeiture of his right
of privacy under Virginia Code  8.01-40 (A).

     In a prior pleading filed with this Court, U.S. News cited three
cases purportedly for the proposition that courts "have uniformly found
that no rights of the individuals whose names are on the lists results
from the exchange of mailing lists."  U.S. News' Opposition to Ram
Avrahami's Motion to Compel, pp. 10-11.  However, none of U.S. News'
cases arose under a privacy act.  Two of the cases involved common law
claims for invasion of privacy in states that have no privacy act<3>; the
third challenged a statutory exception to New York's privacy act that
specifically authorized New York's Commissioner of Motor Vehicles to make
lists of registered vehicle owners available to the public<4>.  Thus, U.S.
News's cases have no bearing on Mr. Avrahami's claim, which arises under
a Virginia statute that not only forbids others from using a person's
name for advertising or trade, but also establishes that a person's name
is his property.

     Because Mr. Avrahami's name is his property, U.S. News had no right
to use his name for advertising or trade without Mr. Avrahami's consent. 
U.S. News' list exchange with the Smithsonian Magazine and its other
rentals or exchanges of Mr. Avrahami's name constituted a conversion of
his name for U.S. News' own selfish purposes.  Therefore, Mr. Avrahami is
entitled to relief.

                              CONCLUSION
     For the foregoing reasons, the Court should grant the injunctive
relief and damages requested by Mr. Avrahami and should deny the
declaratory judgment requested by U.S. News.

                              RAM AVRAHAMI
                              By Counsel


BEAN, KINNEY & KORMAN, P.C.
2000 North 14th Street, Suite 100
Arlington, Virginia 22201
(703) 525-4000
(703) 525-2207 (Fax)

By:             /s/
     James Bruce Davis, VSB #13654
     Counsel for Plaintiff

-----------------------------

Footnotes:

<1>  A copy of U.S. News' listing in Direct Marketing List Source, Volume
29, No. 2 (April, 1995) is attached to this trial brief.  Further evidence
concerning U.S. News' use of its subscribers' names will be presented at
trial, but will not be cited in this trial brief because of a protective order.

<2>  After Arrington was decided, the New York legislature amended 51 of the
Civil Rights Law to create a privilege to supply names or photographs to
newspapers and other organizations for lawful use.  The amendment added the
following language to 51:

     [N]othing contained in this article shall be so construed as to
     prevent any person, firm or corporation from selling or otherwise
     transferring any material containing such name, portrait or picture
     in whatever medium to any user of such name, portrait or picture, or
     to any third party for sale or transfer directly or indirectly to
     such a user, for use in a manner lawful under this article.

The Virginia General Assembly has made no corresponding amendment to Virginia
Code 8.01-40 (A); therefore, U.S. News cannot justify its commercial
exploitation of Mr. Avrahami's name by showing that the Smithsonian Magazine's
use of his name was lawful.

<3>  Dwyer v. American Express Co., 652 N.E.2d 1351 (Ill. App. 1995);
Shibley v. Time, Inc., 341 N.E.2d 337 (Ohio App. 1995).

<4>  Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880 (S.D.N.Y.),
aff'd, 386 F.2d 449 (2d Cir. 1967), cert. denied, 391 U.S. 915 (1968).


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                        CERTIFICATE OF SERVICE

     I hereby certify that on June 4, 1996, a copy of the foregoing and
annexed pleading was served by hand delivering a copy thereof to:

David G. Fiske, Esquire
Lori Vaughan Ebersohl, Esquire
Shaw, Pittman, Potts & Trowbridge
115 South Union Street
Alexandria, Virginia 22314-3361


                                                             
                                   James Bruce Davis