V I R G I N I A :

         IN THE GENERAL DISTRICT COURT OF ARLINGTON COUNTY
                           CIVIL DIVISION


RAM AVRAHAMI,

     Plaintiff,

v.                                     Civil Action No. 95-7479


U.S. NEWS & WORLD REPORT, INC.,

     Defendant.


              PLAINTIFF MOTION FOR SUMMARY JUDGMENT

     COMES NOW the Plaintiff, Ram Avrahami, by counsel, pursuant to
Rule 3:18 of the Rules of the Supreme Court of Virginia, and moves
this Honorable Court for summary judgment against the Defendant,
U.S. News and World Report, Inc., ("U.S. News") on the grounds as
set forth herein.

     This action was filed on July 21, 1995, seeking damages
pursuant to Virginia Code 8.01-40 for the misappropriation by
Defendant of Plaintiff's name and/or likeness. On or about October
24, 1995, Defendant U.S. News filed a Motion for Stay which was
denied in open court on or about November 27, 1995. Plaintiff now
moves for summary judgment on the following grounds: (1)
Plaintiff's name and/or likeness was used by Defendant for the
purposes of trade without having first obtained the written consent
of Plaintiff in direct violation of Virginia Code Section 8.01-
40(A); and (2) Defendant exercised dominion over Plaintiff's
property by using his name and/or likeness for a commercial benefit
without his permission.

                       STANDARD OF REVIEW

     A summary judgment motion is proper in cases in which the only
dispute concerns a pure question of law. General Accident Fire &
Life Assurance Corp. v. Cohen, 203 Va. 810, 127 S.E.2nd 399 (1962).
The rule was adopted to permit trial courts to expedite litigation
where it appears that one of the parties is entitled to judgment as
a matter of law within the framework of the case. Simpson v.
Broadway-Manhattan Taxicab Corp., 203 Va. 892, 128 S.E.2nd 306
(1962). No material fact is in dispute in Plaintiff's case, and he
is entitled to judgment as a matter of law.

                            ARGUMENT

     I.     Defendant Violated Virginia Code Section 8.01-40(A) as 
     a Matter of Law.

     Entirely apart, however, from the metaphysical niceties, the
     reality of a case as we have here is, in the court's opinion,
     simply this: plaintiffs' names and likeness belong to them. As
     such they are property. They are things of value. Defendant
     has made them so, for it has taken them for its own commercial
     benefit.

     Lavery v. Automation Management Consultants, 234 Va. 145, 154,
360 S.E.2nd 336, 342 (1987) (quoting Canessa v. J.I. Kislak, Inc.,
235 A.2nd 62, 75-76 (N.J. Super. 1967) (emphasis added) (attached
hereto as Exhibit A).

     Ordinary citizens are entitled to the protective mantle of
     Virginia's statute [8.01-40(A)].

     Town & Country Props., Inc. v. Riggins, 457 S.E.2nd 356, 1995
Va. LEXIS 54 (April 25, 1995) (emphasis added) (attached hereto as
Exhibit B).
     The Virginia Supreme Court's interpretation of Virginia Code
Section 8.01-40(A), as quoted above, demonstrates conclusively that
the statute creates a property right in a person's name and/or
likeness and that this property right is vested in all persons.<1>
     Plaintiff Ram Avrahami has, therefore, a property right in his
name and/or likeness which cannot be used for the purposes of trade
without his written consent. Defendant has as a matter of law
violated Plaintiff's property rights by obtaining a commercial
benefit from the transfer of Plaintiff's name to the Smithsonian
Magazine without having first obtained his written consent.
     A violation of the plain language of 8.01-40(A) under the
facts of this case requires proof of the following: (a) Defendant's
use of Plaintiff's name for the purposes of trade; (b) Defendant's
failure to obtain Plaintiff's written consent; and (c) injury
sustained by reason of such use. The undisputed facts of this case
as applied to these elements demonstrate conclusively that
Plaintiff is entitled to judgment as a matter of law.

     (a)  Defendant U.S. News Used Plaintiff's Name For the
          Purposes of Trade By Transferring Plaintiff's Name to the
          Smithsonian Magazine For a Commercial Benefit.

     There is no dispute that Plaintiff's name was rented or
"exchanged" as part of a mailing list provided by U.S. News to the
Smithsonian Magazine. In Defendant's Motion for Stay, Exhibit A,
Defendant attached its Motion for Declaratory Judgment.  In
Paragraph 20 of Defendant's declaratory judgment motion, Defendant
wrote:

     On or about March 24, 1995, the Smithsonian Magazine ordered
     a mailing list of 100,000 names and addresses from U.S. News
     pursuant to a list exchange agreement between U.S. News and
     the Smithsonian sated March 5, 1995.

     Paragraph 21 of Defendant's motion reads further:

     On or about April 12, 1995, U.S. News caused a mailing list of
     100,000 names and addresses to be shipped to the Smithsonian
     or its agent, which list included Mr. Avrahami's name and
     address.

In Plaintiff's Motion for Judgment, Exhibit A, the Smithsonian by
correspondence dated June 2, 1995, admitted that it had "rented
[Plaintiff's] name from U.S. News and World Report for a one time
use." It is immaterial whether the transaction by which Plaintiff's
name was transferred from the Defendant to the Smithsonian is
characterized as a "rental" or an "exchange". Virginia Code Section
8.01-40(A) requires only that a person's name be used "for the
purposes of trade."  The Supreme Court of Virginia has interpreted
this language to require only that a person or company obtain a
"commercial benefit" from the use of a name and/or likeness. In
Lavery, 234 Va. at 154, 360 S.E.2nd at 342, the Virginia Supreme
Court, in interpreting 8.01-40(A), held as follows:

     We therefore hold that, insofar as plaintiff's claim is based
     on the appropriations of their likeness and name for
     defendant's commercial benefit, it is an action for invasion
     of their "property" rights.... We hold that Code @ 8.01-40(A)
     creates in an individual a species of property right in their
     name and likeness.<2>

When the mailing lists were "exchanged" between the Defendant and
Smithsonian, the names on the lists were then used to solicit new
subscribers, evidenced by the solicitation received by Plaintiff
from the Smithsonian and the Smithsonian's admission that it rented
Plaintiff's name from Defendant "for a one time use." By
transferring Plaintiff's name to the Smithsonian, the Defendant
received the benefit of another name with equal commercial value
from the Smithsonian.<3> When Defendant U.S. News transferred
Plaintiff's name to the Smithsonian, it obtained a commercial
benefit from the transaction, and it used Plaintiff's name,
therefore, for the purposes of trade.

     (b)  Defendant Did Not Obtain Plaintiff's Written Consent to
          Use His Name for the Purposes of Trade.

     There is no dispute that Defendant failed to obtain the prior
written consent of Plaintiff before using his name for the purposes
of trade. By failing to obtain Plaintiff's written consent prior to
this transfer, Defendant violated Plaintiff's property rights and
8.01-40(A).

     (c)  Plaintiff Has Suffered Damages as a Result of Defendant's
          Violation of 8.01-40(A).

     The commercial benefit that Defendant acquired from the
transfer of Plaintiff's name was solely the Defendant's. The use of
Plaintiff's property without his permission damaged Plaintiff to
the extent that Defendant benefitted commercially. Although
Plaintiff's proof of actual damages may be slight, the Virginia
Supreme Court has held that where a misappropriation of a person's
property rights under 8.01-40(A) occurs, and the damages are not
readily quantifiable, an award of nominal damages is appropriate:

     An award of nominal damages is appropriate when there is a
     legal right to be vindicated against an invasion that has
     produced no actual, present loss of any kind of where, from
     the nature of the case, some injury has been done but the
     proof fails to show the amount.

     Town & Country Props., Inc., 457 S.E.2nd 356 (citations
     omitted).

As the Virginia Supreme Court has held, "plaintiffs' names and
likenesses belong to them." If they are used without permission,
the measure of damages is the commercial benefit obtained by the
person or company liable for the misuse. Regardless, therefore, of
whether the measure of Plaintiff's damages is nominal, an injury
has been done and a right must be vindicated.

     II.    Defendant Exercised Dominion Over Plaintiff's Name
     and/or Likeness Without His Consent and Violated Plaintiff's
     Property Rights.

     The Virginia Supreme Court has held that one holds a property
interest in one's name and/or likeness. See Lavery, 234 Va. at 154,
360 S.E.2nd at 342. A party is liable for conversion when it uses
another's property as its own and exercises dominion over it
without the owner's consent. Town & Country Props., Inc., 457
S.E.2nd 356. Defendant transferred Plaintiff's name to the
Smithsonian without the knowledge or consent of Plaintiff. Through
this transfer, the Defendant exercised dominion over Plaintiff's
property and obtained a commercial benefit from is use. The
conversion of Plaintiff's name without his consent proximately
caused damages including the commercial value of Plaintiff's name
and the time spent by Plaintiff ascertaining how his name was
misused. Defendant thereby violated Plaintiff's property rights and
damaged Plaintiff.

     III.   Conclusion

     WHEREFORE, for the aforementioned reasons, Plaintiff prays
that this Court enter judgment for Plaintiff on Counts I and II,
and allow Plaintiff to proceed on proof of damages alone.


                                    Respectfully submitted,

                                    RAM AVRAHAMI
                                    By Counsel


Law Offices of Jonathan C. Dailey
1050 17th Street, N.W., Suite 600
Washington, D.C. 20036
(202) 496-1290

By:         /s/
    Jonathan C. Dailey (#37442)


_________________________

<1> Virginia Code Section 8.01-40(A) reads in pertinent part as
follows:
Any person whose name ... is used without having first obtained the
written consent of such person, ... for the purposes of trade, such
persons may ... sue and recover damages for any injury sustained by
reason of such use.

<2> The Court relied in large part on the fact that it was the
Virginia General Assembly's intent, in enacting 8.01-40, to create
a property right in one's name and/or likeness:
     [T]he fact that the General Assembly gave even limited
     survivability to claims under the statute indicates the
     legislature's intent that a property right was created by the
     statute.
     Id., at 151 (citing Keepe v. Shell Oil, 220 Va. 587, 260
     S.E.2nd 722 (1979)).

<3> Plaintiff asks the Court to take judicial notice of the "Direct
Marketing List Source," part of which is attached hereto as Exhibit
C. This publication lists hundreds of consumer lists which are
offered for sale by various companies. This publication includes
the list offering by U.S. News, who offers its subscriber lists for
a base price of $80.00 or $85.00 per thousand names. There can be
no dispute, therefore, that Defendants acquires a commercial
benefit from the sale of person's names.