Cabaniss v. HipsleyCabaniss v. Hipsley
As Justice Cobb suggested in
Pavesich v. New England Life Ins. Co.,
Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
This aspect of the right of privacy as a theory of recovery can be disposed of summarily, for the petition was not so drawn nor was there evidence to sustain a verdict on it. For cases involving it, see
Newcomb Hotel Co. v. Corbett,
Some of these cases overlap and fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may for the invasion of constitutional rights. See Prosser, supra, at 389-390, 392'.
Public disclosure of embarrassing private facts about the plaintiff.
There are at least three necessary elements for recovery under this theory: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.
“The interest protected is that of reputation, with the same overtones of mental distress that are present in libel and slander. It is in reality an extension of defamation into the field of publications that do not fall within the narrow limits of the old torts, with the elimination of the defense of truth.” Prosser, supra, at 398.
For cases which seem to fall in this category see
Bazemore v. Savannah Hospital,
In the case sub judice there was no evidence to support ele
Plaintiff testified that, as part of her act, she had her photograph taken to send out for advance billing and that the photographs were intended and used for publicity purposes and to sell her act to club owners. Before the occurrence complained of took place, she had played the Club Peachtree and the Gypsy Room in Atlanta. Prior to coming to Atlanta for her appearance, she gave her photographs to her agent who in turn supplied them to the club at which she was appearing. Her photograph was customarily put in the window and on advertising boards of the club at which she was playing; it was sent through her New York agent to her Atlanta agent to be used at the Club Peachtree where she was to appear. She knew that Club Peachtree had a copy of her photograph at the time she appeared there and that it was displayed in the glass showcase at the entrance of the club.
Plaintiff testified that in many circumstances an exotic leaves her photograph behind when leaving town. She usually attempted to pick hers up if it was in the window or showcase, but she did not attempt to do so at the Club Peachtree because it was not on display when she left. She did not ask for it, and it was left behind.
After her appearance at Club Peachtree plaintiff gave copies of the photograph involved to her Atlanta agent. Subsequent to the Club Peachtree appearance she played the Gypsy Room, which had her photographs and the right to use them. During the Gypsy Room appearance, and prior to the occurrence complained of, her photograph appeared in the magazine Gay Atlanta. She testified that her same photograph had appeared in magazines like Gay Atlanta hundreds of times all over the country when she was appearing at various clubs.
It thus appears from plaintiff’s testimony that th^e photograph was not one which she wished to keep private, secluded or secret, nor was it one which was embarrassing, offensive or objectionable to her. She testified that this photograph and others similar to it had been put in circulation by her to obtain employment and to publicize herself and the clubs at which she was appearing. We do not think that plaintiff can complain about the disclosure of
In addition plaintiff testified on cross examination: “Q. It is a very attractive picture? A. It is a very lovely picture. Q. And shows a charming young lady? A. And I paid a lot of money for it. Q. Fine features and figure? A. I think I look very nice.”
Plaintiff was what is commonly referred to as a strip-tease, and, by the very nature of her occupation, the facts disclosed were neither private nor embarrassing to her.
We prefer not to use the term “waiver” in our decision here. Without precise analysis this concept may receive indiscriminate application. See Feinberg, Recent Developments in the Law of Privacy, 48 Columbia L. Rev. 713, 726 (1948); Nimmer, The Right, of Publicity, 19 Law & Contemp. Prob. 203, 204 (1954); Prosser, supra, at 410.
Three reasons are generally given for the loss of the right.of privacy by public figures and celebrities: (a) they have sought publicity and consented to it and so cannot complain of it; (b) their personalities and their affairs already have become public and can no longer be regarded as their own private business; and (c) the press has a privilege, guaranteed by the Constitution, to inform the public about those who have become legitimate matters of public interest. Prosser, supra, at 411.
As to the loss of her- right by “waiver,” we rest our decision on reason (a), and we adopt the test as laid down in the crystallization of the right of privacy: “to whatever degree and in whatever connection a man’s life has ceased to be private . . . to that extent the protection is to be withdrawn.” Warren and Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193, 215 (1890). Or, as stated in
Pavesich,
supra, in terms of “waiver” at p. 199: “waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver. It may be waived for one purpose and still asserted for another. . . .” See
Tanner-Brice Co. v. Sims,
Unlike disclosure, this aspect of the invasion of the right of privacy does not require the invasion of something secret, secluded or private; it does require falsity or fiction.
“The false light cases obviously differ from those of intrusion, or disclosure of private facts. The interest protected is clearly that of reputation, with the same' overtones of mental distress as in defamation. There is a resemblance to disclosure; but the two differ in that one involves truth and the other lies, one private or secret facts and the other invention.” Prosser, supra, at 400.
For eases involving this aspect of the right of privacy, see
McKown v. Great A. & P. Tea Co.,
“One form in which [the 'false light’ invasion] occasionally appears ... is that of publicity falsely attributing to the
We note that in the fictitious testimonial cases, such as Pavesich, recovery would also be proper under the theory of “appropriation,” discussed in Division 4. Hence, the court in Pavesich could have allowed recovery on this theory had it been presented as a basis of liability, but the only damages sought were general damages for bringing plaintiff in contempt and ridicule before the world and especially before his friends and acquaintances.
We do not think
Pavesich
or similar cases reach the case sub judice. The only falsity or fiction revealed by this evidence is that plaintiff was falsely pictured as appearing at the Atlanta Playboy Club under the stage name of “Dawn Darling.” This evidence does not authorize a verdict for general damages for injury to plaintiff’s reputation or to her sensibilities. There is no evidence to indicate that the stage name “Dawn Darling” is in a category materially different from that which would include the stage names “Melanie Lark” and “Charming Charmaine De Aire,” which plaintiff used, nor is there evidence to indicate that the Atlanta Playboy Club was in any material
The evidence does not support the verdict on the theory of publicity which places the plaintiff in a false light in the public ■eye.
Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
Unlike intrusion, disclosure, or false light, appropriation does not require the invasion of something secret, secluded or private pertaining to plaintiff, nor does it involve falsity. It consists of the appropriation, for the defendant’s benefit, use or advantage, of the plaintiff’s name or likeness.
For cases involving “appropriation” situations see Pavesich, supra; Tanner-Brice Co. v. Sims, supra; Waters v. Fleetwood. supra; and Goodyear Tire &c. Co. v. Vandergriff, supra.
“The interest protected [in the ‘appropriation’ cases] is not so much a mental as a proprietary one, in the exclusive use of the plaintiff’s name and likeness as an aspect of his identity.” Prosser, supra, at 406.
Hence, the main distinction between this aspect of privacy and the other three is the distinction between causes of action involving injury to feelings, sensibilities or reputation and those involving an appropriation of rights in the nature of property rights for commercial exploitation. See Gordon, Right of Property in Name, Likeness, Personality and History, 55 N.W.U.L.Rev. 553 (1960). This distinction was clearly indicated in Haelan Laboratories v. Topps Chewing Gum, Inc., 202 F2d 866 (2d Cir.), where the right of a person or his assignee to protect the publicity value of his photograph was expressly recognized and designated the “right of publicity.”
In the Haelan case the plaintiff contracted with prominent baseball players for the exclusive right to use their photographs in connection with the sale of its products. Thereafter defendant was assigned a contract with the same players for the same purpose. In the litigation which followed, plaintiff maintained that defendant invaded plaintiff’s exclusive right to use the
The court, however, rejected defendant’s contention in this manner: “We think that, in addition to and independent of that right of privacy (which in New York derives from statute), a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made ‘in gross,’ i.e., without an accompanying transfer of a business or of anything else. Whether it’ be labeled a ‘property’ right is immaterial; for here, as often elsewhere, the tag ‘property’ simply symbolizes the fact that courts enforce a claim which has pecuniaiy worth.
“This right might be called a ‘right of publicity.’ For it is common knowledge that many prominent persons (especially actors and ball-players), far-from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways.” Prosser states that “[ajlthough this decision has not yet been followed, it would seem clearly to be justified.”
Recognizing, as we do, the fundamental distinction between cáuses of action involving injury to feelings, sensibilities or reputation and those involving an appropriation of rights in the nature of property rights for commercial exploitation, 'it must necessarily follow that there is a fundamental distinction between the two classes of cases in the measure of damages 'to be applied. In the former class (which we take to include the intrusion, disclosure, and false light aspects of the privacy tort), general damages are recoverable without proof of special damages.
Pavesich v. New England Life Ins. Co.,
supra. In the latter class, the measure of damages is the value of the use of the appropriated publicity. See Gordon, supra, at ‘610-611; Nimmer, supra, at 216; Spring, Risks & Rights in Publishing,
In the case sub judice it is clear from the record that plaintiff’s photograph was appropriated (mistakenly or otherwise) for'commercial exploitation without her consent. The difficulty here, however, is that the damages sought and recovered are not the kind of damages which can be awarded under this aspect of the privacy tort.
A similar problem was encountered in O’Brien v. Pabst Sales Co., supra. In that case plaintiff, a well-publicized football player, posed for football publicity pictures taken by the publicity department of his university and authorized that department to distribute his picture and biographical data to newspapers, magazines, sports journals and the public generally. Defendant purchased a copy of his picture from the university and published it on a calendar advertising Pabst Blue Ribbon Beer. Plaintiff complained mainly of the fact that the publication impliedly declared that he was endorsing or recommending the use of Pabst beer, whereas he was opposed to the use of alcohol among young people and was greatly embarrassed and humiliated when he realized that his face and name were associated with publicity for the sale of beer.
The court agreed with the trial court that plaintiff was not a “private person,” the publicity he received being that which he had been constantly seeking and receiving (in other words, there was no public disclosure of embarrassing private facts, as we have ruled in Division 2, supra), and that reasonably construed, nothing in the calendar impliedly represented that plaintiff was a user of, or was recommending the use of, Pabst beer (thus holding that there could be no recovery under the false light theory, an even stronger holding under the facts of that case than what we have ruled in Division 3, supra).
In a dissenting opinion Judge Holmes, undeterred by procedural points, argued that under the facts pleaded plaintiff was entitled to recover the reasonable value of the use of the picture in trade and commerce for advertising purposes to the extent that such use was appropriated by the defendant. Judge Hutcheson was careful to point out in the majority opinion,
“Nothing in the majority opinion purports to deal with or express an opinion on the matter dealt with in the dissenting opinion, the right of a person to recover on quantum meruit, for the .use of his name for advertising purposes. That was not the case pleaded and attempted to be brought. The case was not for the value of plaintiff’s name in advertising a product but for damages by way of injury to him in using his name in advertising beer.”
Even though, as we have indicated, the evidence here might have supported a verdict under the “appropriation” theory, and indeed plaintiff’s testimony reveals that “appropriation” is her real complaint, 2 the damages sought and recovered were not authorized under this theory, because there was no proof of the advertising value of the use of her photograph in the manner and for the time it was appropriated. Recovery was sought and damages were awarded for the injuiy to feelings, sensibilities and reputation apparently under the theories of “disclosure” or “false light”; but the evidence does not support the verdict under - these theories. Accordingly the judgment must be reversed. 3
Under the appropriation theory it is not enough alone that there be appropriation of plaintiff’s name or likeness; there must be an appropriation for the defendant’s benefit, use or advantage upon which to predicate liability against that defendant. Prosser, supra, at 405. Recovery under this theory is measured by the unjust enrichment of the defendant and not by the injury to plaintiff’s feelings or reputation (and we assume, but do not decide, to plaintiff’s own commercial interests).
We have indicated in Division 4 that the evidence might have supported a verdict under the appropriation theory had the case been tried and proof made under it. The evidence would not have supported such a verdict, however, against defendant Cabaniss. His participation was merely passive, and his magazine Gay Atlanta was merely the conduit through which the advertising and publicity matter was transmitted by the Playboy Club to the public. The appropriation of plaintiff’s photograph did not inure to his benefit, use or advantage, but to that of his advertiser. A different question might be presented had the evidence shown that Cabaniss used the advertisement of the Atlanta Playboy Club, with its photograph of plaintiff, to publicize or advertise
his magazine
(and had the case been properly tried under such a theory). The evidence did not show, however, that any advantage accrued to Cabaniss by any means.
4
It was uncontradicted that he had received
Nor was there any evidence upon which to predicate liability for punitive damages against defendant Cabaniss. Punitive damages were sought on the basis that not only was plaintiff’s photograph used without her consent, but that it was used deliberately and maliciously with an intention on the part of the defendants to mislead the public and thereby damage petitioner’s reputation.
The record is devoid of any evidence of an intentional misuse of the photograph on the part of defendant Cabaniss. He simply published the photograph given him by the agent of the other defendant, assuming that it was a photograph of “Dawn Darling.” Notification of the mistake was not made to him while the advertisement was running, nor does the evidence disclose any circumstances from which it might be inferred that he had, or was in a position to have, actual knowledge of the mistake.
Nor do we think-that there was any duty on' the part of defendant Cabaniss to' discover and prevent the mistake (“should have known”) so that a failure to do so would authorize an award of punitive damages.
“Punitive damages can be awarded upon the same basis as in other torts, where a wrongful motive or state of mind appears,’ but not in cases where the defendant has acted innocently, as for example in the belief that the plaintiff -has given his consent.” Prosser, supra, at 409, citing Fisher v. Murray M. Rosenberg, Inc.,
In Myers v. U. S. Camera Pub. Corp.,
In Kerby v. Hal Roach Studios,
In closing this division of our opinion we review Flake v. Greensboro News Co.,
In that case plaintiff was a vocalist, recording artist and radio entertainer who, in furtherance of her career, posed for photographs in a bathing suit at the studios of CBS. These photo
For this mistaken use of her photograph plaintiff sued the bakery, the theater and the newspaper for libel and invasion of privacy. The jury returned a verdict for $6,500 against all defendants, finding specifically that the publication, in the light of surrounding facts and circumstances, brought plaintiff into public ridicule and contempt.
The Supreme Court of North Carolina held that the publication was not libelous per se and that plaintiff, without the allegation and proof of special damages, was entitled to a judgment for nominal damages only for the invasion of her right of privacy, citing Pavesich. The court stated in conclusion that “there was error in the judgment below and that the motion of the defendants for a judgment of nonsuit should have been sustained as to plaintiff’s cause of action sounding in libel and that there should be a new trial on the cause of action alleging the unauthorized use of the image of plaintiff’s features and person in connection with said advertisement. Upon the present record, from which it appears that said photograph was used by mistake and without malice and that the defendants immediately desisted from the use thereof upon the discovery of the mistake and made due apology therefor, the plaintiff would be entitled to a judgment for nominal damages only.”
In the case sub judice there was simply no evidence of wrong
As to Defendant On The Town, Inc. d/b/a Atlanta’s Playboy Club.
As is indicated by our holding concerning the matter of appropriation, if the jury concludes from the evidence that the use of plaintiff’s photograph by defendant On The Town, Inc., in its advertising of the Atlanta Playboy Club, was unauthorized, she would be entitled to recover its advertising value for the time and manner in which it was appropriated, as actual damages.
While there was no evidence to show that the officers or agents of this defendant intentionally used plaintiff’s photograph or gained actual knowledge of the mistake while the advertisement was running, it does appear that the advertisement ran for a considerable length of time
5
while “Dawn Darling” was appearing at the club. Thus the jury might find that the club manager and other officers and agents of the defendant had ample means and opportunity of discovering that the photograph captioned “Dawn Darling” in the advertisement was not that of the performer called “Dawn Darling” actually appearing at defendant’s club. Keeping in mind that an award of punitive damages is to be made only when it appears that there were aggravating circumstances,
either in the act or the intention
under
Code
§ 105-2002, mere negligence on the part of the defendant in failing to discover the error made in delivering plaintiff’s photograph for publication in the advertisement instead of that of the performer, “Diawn Darling,” would not justify an award, for “mere negligence can never amount to such aggravating circumstances. . .”
Louisville &c. R. Co. v. Young,
Special Grounds.
Evidence of a witness, Johnny O’Leary, to the effect that it was not the custom of the trade or industry in Atlanta to publish in advertising the photographs of artists and actors carrying the names of other people, was admitted over objection that it was wholly irrelevant, there having been no pleading or evidence as to what the custom may have been in this respect. This was error. Admission of negative evidence should generally be restricted to a rebuttal of other evidence on the subject, though there are exceptions. In proper instances proof may be offered of what a custom of the trade is, but to allow proof of what it is not as an original proposition leads to an unfettered roaming into a maze of irrelevant and immaterial testimony.
Error is enumerated on the denial of a mistrial sought because of certain statements of counsel made in the presence of the jury. Since there must be another trial and this is not likely to recur, we make no ruling on it.
Error is enumerated on a portion of the charge wherein the court instructed the jury, as to the form of their verdict, that if they should award damages under count 1 of the petition they might, if they saw fit, award damages under count 2. There is no merit in the claim of error on the ground that in this connection the court should have charged that before awarding punitive damages under count 2 it must have appeared that the violation of plaintiff’s privacy was done maliciously, for an examination of the charge reveals that this was very clearly and fully included; indeed it was done just preceding that portion to which exception is made. See
Brown v. Matthews,
Judgment reversed with direction that a judgment n.o.v. be entered for the defendant Cabaniss and a new trial be granted the defendant On The Town, Inc.
Notes
There are, of course, other views. See, e.g., Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962 (1964), in which it is urged that the cases involving privacy are of one piece, a sort of continuum or a synechiology, and involve a single tort—the affront to human dignity. In his article, The Right of Privacy, 27 Ill. L. Rev. 237 (1932), Dean Green points out that the doctrinal term “right of privacy” threatens to become a catch-all for cases which defy a rule-of-thumb analysis and affords the judicial process a haven
“Q. Now, you would have had absolutely no objection to this picture appearing exactly like it was, had you been playing at the Playboy Club, would you? A. If I had been playing under contract at the Playboy Club, this picture could be shown with my name under it, not someone else’s name.” In response to a question as to whether plaintiff was complaining that the wrong name appeared under her photograph, plaintiff stated: “No, it’s the fact that it was used—that, too, and it was used and I didn’t put it to use and it’s part of my—part of what I use to build myself up as an act. I’m not building publicity for anybody else. I’m building for me and these are my pictures. I paid for it.”
Our ruling here is not to be construed as indicating that in an “appropriation” situation in which “intrusion,” “disclosure” or “false light” also appear, recovery is limited to damages for “appropriation” on the basis which we have outlined.
Pavesich
We do not rule whether or not the advantage must be pecuniary. Prosser suggests that under statutes such as those in
The petition alleged that the photograph was published for approximately ten weeks; the evidence indicated that the advertisment ran for some four months.