:DOPOMENT 2BSDME

ED'141 869 CS 501 385

AUTHOR Lacy, Nick %

, PhotAfaphy'v.,Prim.acy. TITLE . INSTITUTION Freedom-of Centery-NColuinbia, Mo. REPORT NO' FOI-374 PUB DATE Jul 77 . .

NQTE . Bp.; Some parts may be marginally legible due to small prinst'of the orlginal docdment ,

EDRS PRICE MF-$C:83 HC-$1.67. Plus potage, ' DESCRIPTORS "Censorship; *Civil Liberties; Constitutional ; *Counit Litigation; *; *; Iaws;/ Legaimiroblems *PhotOgraphy; * IDENTITIERS' *Freedom of'Informa on . , ...' .

ABSTBACT , 2 This report discusses how courts-have dealt iiith the, use of phoceographs for journalistic purposes in cases where invasion of pr44acy was arleged. Ih the coniext of:ihis survey of relevant case law, the following.topics are addressed: the rght of privacy, the .107 guidelines for cases.involving photographs thal. accompany , articles, "legitimate public interest" il newsworthy eventsand

publie. figures, the question of the lapse of time between taking a . photograpk,and.publishing it, and the concept of "false light"--the misrepresentation of the motivos Dr behaviors of those who age photographed. Ih additionAte effect of the press's disregard for accuracy, official inmestig ion of the question dr representation ) of individuals in a false light, and limitations upon photographers are discuste.d. (Kt1

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, ' u THiS DOCUMENT HAti, BEEN RE PRO. CI DUCED EXACTLY AS RBCBIVED FROM FREEDOM OF INFORAATION CENTER REPORT NO.374 TA PERSONOR ORGANiZATION OR IDIN- .1./. ATING it POINTS.OT V EW DR OPINIONS STATED DO NOT hike SSARiLY REPRE- SENT OFFICIAL NAT19 AL,INST1TUTE OR ED,UCATION POSITTOOR POLICY PHOTOMAP V. PRIVACY 'N A . , - A This report was written y Nick/ 1,itcy, km M:A, candidate turn to the Supreme Court. A continuoustrait.f pro-press. at the University of Min WI, ScbOol of Journalism. opinions, albeit With' a few switchbicks and digressions, has been establishea. / Conflict ,Inevitable . , This paper will look at this trail as it'as developed

-I with regard to photography. (Cases of pho og aphs usett . The developmen .of thejight of privacy,is of recent for advertising purposes will not be covered ) i)e niost origin in felation,td other atpects of an individual's rights. of the court decisions which will be looked at arebinding' It begain 1890/with the Warren-Brandeis article "The 'Only in the states-where the cases were trie,a' uniformity, , Right To Privacr' in the Harvard Law Review' and has . in dealing with challenges to Photograp ere has come right progr ssed to a point where six states recognize a 'about throughout the country. f p ivacy witk statutes, while,most of the rest have ac- , lio ledged the "right to be let alone" by .court decisions. Right of Priem Defined .s ... . Th se court decisiorhave been made with little,guidancs, Photography is the most obvious thr at people prob.,' fr m the Stipremeourt, which has heard only four. cages 1947. ably see to their privacy. There are fephotojournalists. - dealingwith priva y questionsthe first one ,in who haye not faced the ire of people whi think their pic- The .ibsence 1p1 Supreme Court decisions regarding ture has been taken. That 'ire increasekw th publication of ....ririvacy.is interting btcause a person's right of privacy the picture. ..4 ik . %, and the/ freedo, ofthb press are mutually antagonistic. be- One of The earliest cases dealing with the-publication or Even on the s rface, there exists an inherent conflict a photograph forjouivalistic pur *as. .Iones .v.. -tween,one's ri ht to keep things secret and someone else's Herald Post Co., 230 Ky. 227 (192-9. Thepictures, in right ,to info the public. The Nrren-Brandeis article is era(' as inspired by the authors' healthy that Instance had been "carrie&away" rom the, home' of genetally r the plaintiff following the murder ofer hu'sbahd. Mrs. dislike fore Boston preis corpi of.the period.1 Jones copplained that publication of t e pietutes was of- 'The m jority of invasion of privacy suits featpre some / right of privacy. arm of t e press as defenciant.Whis constantthreat 'of fensive and she sped for of It ged into court by Johl or Jane "Private Citi- Id finding for the defendant, the c urt endoised wat being d has become a basic defense in privacsuits. The court zen" Do for alleged'invpsion of.privacy can conceivably a rfght 9f privacy, ' bring a..ut the "" so often mentionedin recognized that there was such a thing of the press. "defined as the right to live one'slife in sec1usi9n, with- ases d alins with attempts to curtail freedom out being subjected to unwarrant, d a d undesired pub- Wi such a threal possible, whY the lick of Supreme ;Court direction until 1967 with -rime Inc. v. Hill,385 licity." But thenathe court said f U.S. 374, and then only three'further cases fCantrell v. There are times, however, when-ôn4 whether will- .1 Eorest City Pub. Co., 419 U.S. 245 (1974), Cox Broad- ingly or not' becomes an actor in an occurrence of ! , casting Corp. v. Cohen, 420 U.S. 469 (1975) and Zac- public or general interest When this 4akes place, he chini v. Scripps-Howard, 45 LW 4954 (1977)]? The fact emerges from his seclusion, and it i pot an inva- is that while Only a few states have rejected the concepta sion of his right of privacy to pitblish his photo- df a right of privacy, the press has seldom been burned in graph with an account of-such occurrence.2 privacy cases. The press has lost several casesusually s; of tht false light varietybut burns, where a decision Today, the press probably would have gotten into might kreate a 'Pchilling effect" and thus a constituti(pal tiouble for the manner in which the' pictures were ob- question, have been rare. The press seemingly received tained, but -the concept of the -involuntary public figure qujte adequate protection from the courts in matters con- and an accompanying forfeiture of right of privacy was cerning alleged invasions of privacy, without having to placed on the. books. , A

, . The author discusses how courf's have dealt with the use of photo- graphs for journalistic purposes in cgses where invasion of privacy , was alleged. In general, photographers have met with restrictions only when a person was presented in a false light

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ti) FOU REPORT NO. 374 cilrfrontati n with that desire whenever 'theperson steps PHOTOGRAPHY V. PRIVACY out of hi or her borne and into,the public domain. It,as 1937 Guidelines The*,nd others insksted,theirriihtof privacy or anony. ity Aiated wherever they went or whatever they. In 1937, Lahiri v. Daily Mirror Ina; 162 Misc. N.Y. 'did:c resulting infringement on 776. was decided in New Writ. This involved thefpubli: de itely would be "darning." catkin of a pieture of a Hindu musician withau article Why a picture of Ulfian Themo talking toa policeman ,on "rope trial." In writing the opinion, the.court set' up ould be in the miblic interest is perhapsa bit hazy. A four rules to he looked at in cases involving photographs- lines has to he drawn somewhere, however,nd iU was accompanying an article.In sumniarized° fashion. these Therno's misfortune' that the needs ofa frfe press re- rules are: quired that tly line1.3e drawn to the advaiftageof the (I )Recovery under the statute may he had if press. 'Thecourt realized this: . ihe photograph is published in .or as part a 'Great diflicuhy exists ifi defining a right of privgg 3dvertiFroent. or for advertising purposes. that will protect individuals- against abuse andW (2)- Recovery may be had ifthe photograph s will .not infringe the -rights of the public and the uSed in connection with.a work of fictlo press to dismiss personaliiies. In Winfield, Law of 4(3)No recovery may be ,had it the pboto ph: (1937). 669, itis said, "itis only offensive is published in conncoion with an ar cle of invasion of privacy that ileally objectionable and c'urrenr or immediate publicnterest: thai Ought, to he Made 'unlawful. 'Offensive' isa and' vague term, but the judges could be safely,entrusted (4) No recoVery may be had. as fi neral with the task prOcciding whether therewere evi- if the article is educational Or iormative in dence enough of such offensiveriessto gd to the charac0.3 jury. There is no need to sfop the propagation of The court did introduce the caveat at newseven silly newsr-,7-about people, or-to stifle , curiosityeven vulgar curiosityabout a neigh- Thpre may. howeverYbe.liiihilitunder subdivisions hoes affairs. But there isa difference . between 3.abd 4 if the photOgraPh u d has so tenuous a otdinaryiriquisitiveness' and unscrupulous abuse . connection with thp news irp or educational ar- of a person's privacy for adVertising or other , pur- 4 ticle that it can he said toave no legitimate rela- poses,"7 tion to it and be used for c purpose of promoting the sale Of the publicati n.4 Two decision; dealing with photographs and the right , of Orivacy were given in 1948.1n Peayv. Curtis Pub. CO., . These rules have been t 78 F.Supp. 305.. the defendant's motion , ed in other states. to dismils was\ denied. In Berg v. Minneapolis Star & Tribune Co.A79 F. "Legitimate Public Intere Supp.' 957.the defendant's niotionfor 4ismisaL was granted; -Tribe next case r turns us to the birthplace of the idea . of a rie,lit of nriv cy. Themo v. New England Pub. Co.. The.. Berg case was fairly straightforward and reaf- 27 N.02d 7531940), came about when the, plaintiff's firmed the right to pUblish phtotographs'relevant tda, photograph aeared on the front page of the Boston newsworthy story br a story with a legitimate public in- terest,Bry. 1948, the soOrt noted in quoting from 138 Amerhan. T e picture showed Themo talking,with a po- . , liceman. indication was given as to the circumstances. A.L.R. 13.1, N.Themo s d for invasion of privacy and Once again die it is settled the publication of a person's name' ilress prailed. . or picture in:connection with the news'or historical Thcourt said thatthis case did not ask it tO decide 1 epent of legitimate public interest does not consti- 'whet er the tight of privacywas or vim not recognized tute an actionable invasion 4f the right of prlvacy.1 in assachusetts. Nevertheless, the courttwenran,-and set u some standards to follow if such a right were to exist. The piCtures in the.lierg case were of Berg ida court- f any exists,it oes not protect one from having his room 'during a.recess of an interesting divorce case. The name or hislikeneappear in a newgpaper when there is pictures. alOng wittf.one of Berg's ex-wife and their chill a legitimate public interest in his existence, his expnriences, dren, ran' with an article about the case. In the PeaYcase his words, or his acts."5 Tfie court then wrote. the photograph ran as an illostratioir-in-the Saturday. '- Evening Post for a biting satire on taxi drivers in Wash The courts in question 'Mated no case unless the , ingtan, D.C. Peay claimed that she had been libelled and plaintiffs under all conceivable circumstances had that h6 an absolute legal right to aclude frOm a . III-M-sending the case back to be tried bya jury, the any phgtograpof them taken without their per-- court 'came -down hard on the use of photographs taken mission: If everperson has such'a right, no news-,' and used. without . paper could lawfully publish' a photograph' of a ? parade or a sacet sceoe. We are not.prepared to. Modern life withits accompanying increasein 'suitain the assertion of such a right.6 public -rhedia of cdmmunication, suchas news- papeks, monthly and weekly magazinei, moving The court did give a broad privilehere to a pictures, radio and television, ,has created novel i's need to b'e able td record, ociety in all o situations, that in turn gave rise to the problem of .Mai people ,are quite pro ective of their ano- protecting the individual who desires seclusion and nymity wittu -society. The role,of a photojournalist is in freedom from intrusion into his private life as well

3 L as from'undue and unde;irable pub-NO!, such as FOI REPORT NO. 374 . ilinvolve4in the circulation of his likeness without PHOTOGRAPHY 1/.. PRIVACY his permission. Such an invasion is akin to a publi: using the same pjcture 20 monthsfater with arj article,on , cation of priVate letters and memoranda, which the law forbids- as ab encroachment of a property in pedest rian carelessnesii, - terv. The law has recognized.the right of privacy. All sides, in the case agreed that the oliginal use of the The publication laf a photokraph -of a private per- photograph was not aetionable. All sides agreed that there son without his sanction is a violation of this right.° was such a thing Ai a right of privacy. The qu ons, then,, were:(I )whetherthe privilege to publishte icture This is an example of what was Meant earlier by being was "lost by lapseof time" and (2) whether th ilege

burned. The court did acknowledge an,exception to this was lost by using the picture with an article which p1ced eight for public figures, but no exception was given tO a different interpretation on the facts behirtd th nt pictures of events of public interest. No exception was N(i.e., that theogirl in the picture was at fault). given to pictures taken in the public sector. No exception The court, referring to the Sidis decision, held thh, for unwilling public figures. Fortunately, this type of strict lapse of tiTe did not affe'ct the privilege to pub ish. But4 interpretation has not held sway in many, places. -the court said, the privilege was lost by thtik use o which PublicFigures the picture hal been put: ,1 In Math?! v. Doiton, 210 Miss. 6 6/(1951), the de- Granted that she was "newsworthy" withr gard fendant was actually the party claiming invasion of tri-. to her traffic accident. Assume, also, that she ',con- vacy. Martin, was a. county sheriff charged with ' tinucd to be newsworthy with regard to thatl ar- and on the person of Dorton. Dorton, a photog- ticular accident for an indefinite time afterard. rapher, had taken Martin's picture despite being told not' This use of herpicture hid nothing atall t4 do to by Martin. In his defense, the sheriff claimed invasion with her accident. It related to the general su ject of his privacy and also ,claimed that Dorton had...struck of traffie accidents and'pedestrian carelessness.' the first blow by tatirig his picture. Martin's claims met The pictureis usedin connection wkh seral with a stony receptidn. headings tending to' say that this plaintiff narro.vly escaped death because she was careless.of her cw n . .. one-Wha engages in public affairs and publio safety.... The Vim total of all this is tkat this par- life to an extent which draws the public interest .,ticular-plaintiff, the legitimate subject' fbr publi ity upon him may be deemed to have consented to the for one particular accident, now becomes aic- publication of bis name jind photpgrap torial, frightful example of pedestrian carelessn 12 tion with a legitimate news story.. This, we think,, exceeds the bounds of privilege

The court also recognized ,the problem oin.voluntary' False Light public figures and went along with the' "preponderance of authority" giving the pressihe right to report their activi- Leverton and Peay were imildr cases..They dealtwith, ties. presenting a person in a fal light and tItis. has, ineed, The court did offer some words of comfort to all Public .turnedintb the major. 15ro lem in photography-prvary" figures and involuntary public figures who found them- rases. I, may not alwayi' be the photographer's fautin selves dealidg with Photographers: -such cases but rather the editor's poor tluck in seleting 'pictures to illustrate articles. . While it iS teue that the modern invention of instan- . . taheous photography now.intvogne is such as to In 1.951 a series of-ases began. At issueas a picure afford the Means of securing.4 portraiture of in- taken by' Henri Cartie -Breston of a'coulesittingto- ,dividual's face and form Without first giving an tether: "plaintiff, Mr. Gill has bis arm ar und his ife opportunity in advance for adequate adiustment of and is leaning forward with his cheek againsters." ., the facial expression.wea'ring apparel and posture In October, 1947, the picture ,appeared in Harpr's of th'e person to be photogrphed, an.dften may Bazaar, a Hearst publication. In May, 1949it was pb- not result in a goad.likeness being c!,,bt ed such as .4 lished it Ladies Horne Journal; a Curtis publication. e would be pleaiing to the officer:and- this admiring Gills cOmmenced separate suits against 'both companes friends and cOnstiarents,itis 'nevertheless not 'a for invasion o( privacy. These cases seem terribly c sufficient ground to justify an assault and battery fusing. '. on an otherw*se nonoffensive photographer'. Jf a There were three decisions dealing with the Harpe servant of th.e' deaf'people is thus humiliated -byi a Bazaar picture. In May, 1951, the District Court of A published photograph that does nof seem' to do, peals, $econd .District in CalifOrnia, said

justice to him, the.14w leaves his feelings of disap- 1 pointment and ohagriri to he helped anct vindicated It cannot be said that any detriment is suffered by by the tremendous ,force of public Sympathy:" .0 a person from the mere printing and display of his photograph when it does not show him in an un- Lapse ,of 'hale complimentary-pose or tend to humiliate him or in any sense present hiM to his discredit or disadvan- In 1947, Eleantir Sue,;Leverton was almost killed bya The publication of a photograph should.not car through no fault o her own. A photographer happened be offensive to persons of ordinary sensibilities , to be there and took kfure whieb was published the .:. Where the rusion xloes not go so far as to next day. Leverton v.curtis Pub. 'Co:, 192 F.2d. 974 be beyond theI its of decency, no liability ac- )(195l), was an invasion of -privacy suite against Curtis for crues.13 .: FOI REPORT NO. 374 P.4 . .. Freedom of speech and freedom of the press PHOTOGRAPHY V. PRIVACV have been urged as a ground for denying the exis- tence of the right of privacy. The right of privacy In January, 1952, the supreme court of California saw things differently. does undoubtedly infringe 'upon abwlute freedom of speeeh and of the press, and it also, clashes with We believe, moreover, that plaintiffs have stated a the interest of the public in, having a free dissem- cause of action for an infringement on their Tight of ination of news and informatidn. These paramount privacy by the publication without their consent of pubfic interests must be taken into account in plac-. the photograph standing alone. Members of op- ing the necsary limitations upon theright of posite sexes engaging in amorous demonstrations privacy. But thk right, of the individual is not should be peotected from the broadcast of that without qualifications, nekher is freed* of speech most intimate relation. . . . That should be true and of the press unlimited. The Intter privilege is even though the display is in a public place. . . . subject .to the qualification thatitshall not be so We fail, however, to see any suhstantial public in- exercised as to abuse the rights of individuall. Ac- terestinthe bare publication of a picture of a cordingly, it is held by courts recognizing the right f: cn Iple in an amorous pose.. . . Nor can we say, of privacy 'thatthe conititutionat guarantees of as a matter of laW, that picturing persons in such freedom of speech and of the press do notwarrant poses 'would not outrage or injure the feelings of an the publication of matter constitutingan invtision ordinary person.14 of the right of privacy any mire than they give the right to defame a person.m But in February, 1953, the sarac_ judge wrote that the Gills had In three cases referred to in this paper, liab'ility was voluntarily exposed themselves to public gaze in a assessed when the photograph tended to throw a false light pose open to the view of any persons who might upon the subfbct(s) and was deemed to 'be .offensive.to then be it or near their place of business. By their a person of'or-dinary sensibilities. In all three cases, how- own voluntary acticin plaintiffs waived their right ever, the picture standing alone could not really be tcon- of privacy,so fAt' as this particular pose was as- sidered an invasion of a person's privacy. The words Ac- companying the photograph made ihe incursion into the sumed, 1 Am. fur., Privacy sec.17, p. 937. for ,"There can he no privacy in that which is alread individual's privacy actionable 'and liable. public."16, The courts did not appear to consider this la; in any way a threat to the freedom of the Ohs to carry out its The court added that the Gifis h,er showed es,' functions or to the public's right ,to be informed. Whet ° .%of a case where "a mere photographtaken of a voluntary was being ,asked of the press was that and publie pose which did not "shock the ordinary sense it be sure of the- background of .atiphotograph before using it. This type of of decency,orpropriety" had'been shown to be actionable. -request could actually become a very open-endid wrench The couri then referred to*theThemocase arid the re- that might corkeivably do to theAress just what the cotTrit% marks about anyone being able to stop publication of a inThernorefuied tO do. photograph. . In other words, following a nifty loop-the-loop,.actions The Supreine Court realized this threat when it wrote the opinion in in the public sector became fair game for photographers. ;Time Inc. v. H,ll, 385U.S. 374 (1967). In deciding that the The catch. as was expressed inPeay, LeversonandGill v. kew York Timesv. 'Sullivanstandards , Curtis Pub. Co..is irmasting a false light on thosections. for libel extended into privacy, the Cou'rt addressed itself to the problem of false light. Curtis, which seems to have a propensity f getting involved inthis type °of case, hought the picture from Hearst and usea it as an illustration for an article on.love. We create a grave risk of serious iMpairmeprof the The caption with the picture and later parts of the aiticle indispensable service of a free press in a free so- made itappear that the Gills were an example of the ciety if we saddle the press with the impossible "wrong" type of love; i.e., love at first sight with.an at- burden of verifying to a certainty the facts4ssociat- traction based solely' on sex. ed in news articles with a person's name,,. picture, In botiaadOsions on this case, the district court-(23I or Portrait, particularily as related to non-defam- P.2d 5 3Nlind the supreme court (239 P.2d 630) found atory Matter.. fo jthé plaintiffs. Taking thethree elementspicture, ...sanctionsagain(either innocent or negligent caption ani articletogether, the court of appeals wrote misstatement would present a grave.hazard tdrklis- that "it ''Carincu be said that it does not offend persons of couraging the press from exercising the constitu- ordinary sensibilities."16 Anci, the court said, liability in tional guarantees. Those guarantees are no/ for the invasion of .privacy cases "exists only if the defendant's benefit of the press sO much as for the. benefit of corkluct was suCh that he should hive realized that it us all. A broadly defmed'freedom of the press as- would offend persons of ordinary sensibilities.W sures the maintenance of ,our political system and In agreeing with the court of 'appeals, the supreme an open society. Fear of large verdicts in damage .court looked at the need for a right of privacy: suits for innocent or merely negligent misitittement, y even fear of the expense invOlved in their defense*, In ihe formative period of the common law,'before must inevitably cause pubIlihereto "steer... wider the day of , radio, and photography, of the unlawful,zdne."19 when life was simple and human relations more direct,the individualcould himself adequately On the right of privacy in itsete a majority; of the Court pa:41v his privacy;Today this would be impossible said:

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-5 . xposure or the self to others in varying degrees is FOI REPORT NO, 374 P.5 a concomitant of life in a civilized community. The PHOTOGRAPHY V. PRIVACY ri of this exposure is an essential incident of life in society which places a primary value in free- would he highly offensive to a reasonable dom of speech and of press." person, and 00, "the actor had knowledge of the falsity or The usual ethod by which the right of privacy had come acted in reckless disregard of i023 'into existeethrough court decisionsdrew this com-. ment from istice Black in a concurring opinion: In'TentatiVe Draft No. 13 (April, 1967) it was stated that protection 'is being given to W If 'judgesave, however, by their own fiat today created .ariht of privacy equal to or superior to the interest of the individual in not being made, to therightof afreepress thatthe Constitution, appear before the publit in an objectionable false created, then morrow and the next day and -the light or false position. or in other words, otherwise next, judges cacreate more rights that balance than as, he k.24 away other che shed Bill of Rights freedoms.21 Furthermore, the draft continued, defamatioa does not Reckless Olsregard necessarily have tobep-resent tor a false light suit. "It is enough that he is given unreasonable and highly objec- Since theHilldecisi ,the pressand photographers tionable which attributes to him characteristics, have been protected in ivacy cases as long as publica- conducts or beliefs.which are false.. ."" lion was not made with aual malice or recklessdisre- In 1974, a second privacy case.Cantrell v. Forest City gard of the facts. The quest sn remains ato what con- Pub. Co..419 U.S. 245, was argued before the Supreme stitutes .reckless disregard. Hothorough a check should Court. The issue, Once again, was false light. Thif time be conducted before running t picture of an accident the Court decided that a repor,ter had inden1 acted with victim with a istory 4:)n pedestria carelessness? At what reckless disregard of the facts. But the photographer who point would thse serious doubts of n editor be satisfied? accompanied Eszterhas to the Cantrell hbme was found, Should a publication be punished fQr using the best art to pe innocent of the charges that the pictures he took had available to ruo with an article, whicis essentially what also cast a false light upon the Cantralls. happened inthe three cases mention41 above? In the eases decided sinceHill,a good false ligdcase'tb answer Conway testified that the photographs he took were theie queitioos has not 'come up. fair and accurate depictions of the people and scenes he found atthe Cantrell 'residence. This 'With the, possible exception ofHolmes v Curtir.Pub. ...Co.,303 F;Supp. 522 (1969), that is. Once again Curtis testimony was not contradicted by any other evi- published a photograph and attached a questionable cap- 'sk awe introdqed at the trial." tion, to it. Holmes was the central figure of a calino pic- .-e lure. The caption was: ff. Official levestlgatlees High rollers at Monte Carlo have dro h\ There have been several photography vs. privacy cases as $20,000 in a single night. The U.S. nt \ sinceCantrell,but none has dealt with fals1light.In of Justice estimates that the casino gosses. 0 \ Florida Pub: Co. v. Fletcher,2 MedzI. Rptr 10§9 (1976), the Florida Siiprem.Cotirt. quished She of the million 41 year, and that one-third is skimmed Pa American Mafia "families." district court of appeals-which had reversed thgrant of sumtnav judgment in favor of%the 'newspaper. AccQrding to the court, the ede was in thi pullic, \ Fletehee iitstigated the three-count suit followinga interest and thus sUbject to theNew York Timesstandaid fire in her home while sift was in New York. One a her as per theHilldecision. HowevEr, the defendant's motion"- daughters was kilied and,-in the course ot the investigation, for dismissal was denied. thofire marshal iskednewslihotographer to take a pic- As to plaintiff's action for privacy, there. appears tura I the girl's silhouette for the official record. (The no question that if it were not for the dEtendant's - firemen had run out of film for their own camera.) No restriction was placed oa the photographer's use of the capticin beneath plaibtiff's photograph, this court . would be justified in dismissing plaintiff's invasion negatives and so the picture was published with article of privacy cause of action. But suchis rt. the on the fire in theFlorida Times-Union. The three counts of othe suit. weie: (1) trespass and case.22 4 invasion of privacy, '-(2) invasion of privacy, and (3) in- The reason for the emphasis in this paper on false light tentional infiicdon of emotional distress. A kial court is sienple. False light his been about the only area of the judge dismissed the' Second- count and granted summary*imi right of privacy where the press has been found subject' judgment on.the other two counts for the defendant. The to liability. Public figures, involuntary public figuresviegiti- court of appeals decided that the trial judge had had in- mate public interest, even private poses inthe public sufficient proof to grant the summary judgmeht on the sector have all come under First Amendment protection first count but affirmed everything else. Quoting from for a photographer's use. But falselight reinains the the trial judge's opinion, the Supreme Court noted problem: , The court finds that-there i's no. genuine, issue of The Restatement ofthe LawSecond, Tentative material fact and that as a matter of law an entry, Draft No. 21 (April; 1975) says that in false light.cases, that may otheiwise be an actionable trespass, Iasi liability is present if - conies lawful and nonactionahle when itis' done (a) the false light in which the other was placed under common usage, custbm and practice.n POI REPORT NO, 374 P. tratedarticle would hive to conclude that the per. PHOTOGRAPHY V. PRIVACY sonal facts concerning Mike Virgil went included Ornate( *down asalegitimatejournalisticattempttoexplain Virgil's antremely daring and- dangerous style .of IVelsonv. Globe, 2 Med 1., Rptr 1219 (1977). reaf- bodysurfing at' the.Wedge." firtmellorevious rulings concerning unwilling actors ina However, the court cautioned: Publittveni and also the little effect that lapse of time has This opinion should not be read on reinstating a person's right of privacy. Ai in any way en- dorsing no-holds-barred rummaging by the media A detective magazine ran a story and picture about through the private lives of persons engaged, lin the murder of the plaintiff's husband twoyears after the activities of public interest under the 'pretense of event. ..elucidating that activity oc the person's participii- Can one who has achieved fame or notoriety,or lion in has been involved in a newsworthy event, regain In general, the only area in which photographers have his right "to be let alone" by the lapse of time? had problems in securing privilege .involves falso light. WO few exceptions, the eases that have dealt with Usually this,comes about through unfortunate luck this question have held 'that once a person's ac- matching cptions topictures With recognizable individua tivities become a matter of public interest, hecan- who arein erftrf( 'whatever the caption, ora'rticle e not revert to a private status, or that, under the charges them. circumstances, the period of tirile involved was not The privilege to publish photographs has been given sufficient to deprive the publisher of his privilege broad- interpretation iri most cases. Even pictures which to report newsworthy events." might realistically. be considered as offensive caft berun under .the privilege of newsworthiness. One example of The court granted summary judgment for the defendant, this wasBremner v. Joyrnal Tribune Puh. Co., saying that 247 Iowa 817 1956).

The whole theory of no invasion of privacy ona Restrictions on Photographers ' - . . matter of public interest, and First Amendment protectjon, is the rightf the9people to ,know what They art, hOwever, limitations upon this privilege to goes on in matters of public interest...." photographin addition to the question of falsejight. In. I p the Restatement of the Law Second, section 652A sets Newsworthiness fouth the general principle of privacy. x.` ..001 The recent decision of'a federal district judge in Cali- (1)One who invades the rightof privacy of fornia is .seen by many observers as an important prece- an er is subject to liability to the other if

dent in determining the .right of the press to publish in- e invasion is unreasonable. . formation that might be an encroachment upon the priva- The right of privacy is invaded whern there' cy of an individual. -if At issue inVirgil Sports Illustrated,a Med L Rptr , (a)intrusion upon the seclusion cif another' 1271 (1976), was an article on body surfing. Virgil wair" as slated in sec. 652B; or interviewed several times. When he found out thatt (b)appsopriation, of the other's name or reporier planned to publish accounts of some'of thecrazy likeness, as stated in-sec.-652C; or- things he had done, N,irgil "revoked all consent" to the publieity -given to the other's privatis . article (which includedtwo photographs of himself and life, as stated in sec. 652D; or other body surfers). The article was published anfway (d)publicity which places the other in a and the Jest two pages (ofI 1) dealt with Virgil. false light beforthe public, as stated The court dismissed his invasion of privacy suit.'In in 652E." \ its decision the court refesred to the ruling of the appeals court that had remandedthe case bacismeo the district In 652'D liability is pr. tif the photographis\kfleii- court: siVe to, a "reasonable' person:* or if the matter is notiof legitimate public concern. In 652E the .same thing ocCtrs The standard of newsworthiness adopted by the regarding offensiveness but, instead of legitimateconcern, Ninth Circuit is as follotvs: the "actor" must have "knowledge of the falsityor acted In determining what is a matter of leNtimate pub- in reckless. disregard of it." Both of these -restrictionsare slic interest, account must be taken of the customs capable of broad interpretation. and conventions of the community; and in the last analysis what is proper becomes a matter of the Latest Wing Pb community mores. The line is to be drawn when In JUne, 1977, thc U.S. Supreme Court handed down the publicity ceases to be .the giving of informa- its decision inZaochini v. Scripps-Howard.Zacchini.per- tion to which the public is ehlitled, and becomes a ormed a "human cannonball" act. He claimed fhat fele" morbid and sensaticinal prying into private lives for vision station, by taping and broadcasting his-performance its own sake, with...which a reasonable member of when he had told it not to; had appropriated iiis,name the public with decent standards, would say that he and act. The 'high cotn't agreed; had no concern." ...it is important to note that neither the public Applying these guidelines, the district court found: nor respondent will be deprived of the benefit 0. of petitioner's performance, as long as hiscom- able person 're ding the Sports mercial stake ih his act is opPropriately 'recognized,

t A Vetitioner iloes not seek' to enjoin th'e broadcast of FOI REPORT NO. V/4. ' 2. 7 his performance: he Simply. wants tA be paid foi PHOTOGRAPHY V. PRIVACY

contlude that although the State of Ohio may The court matk a distinction bets/en this case invo1y14, as a matter of its own law privilege the press in the a "right of publitity" and., privacy ovies invoMng Jake 'circunisttmcesof this case. the First and Fourteenth light.Itis too %Nut to tell whist effect this dedslon will Amendments do not requireitto do have on the rights of photographers to document tho news.

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I.Don N. Pomba, PIAICV and /he Prss (SLottle: Univors(ky of Wush 17. Ibid.at 667 ington Prom 1.972), pp. 23.23 IS, 239 P 2d 630 (1912) at 633 2. /one, v. Herald Palli Co .230 Ky, 227 (1929) at 229. , 19, Ionwi Inc.v. NM, 3113 U 3, '574 (1967) at 3119. 3. Georg. Chernoff ondHeathy!Sarbin,Photography andtfleLaw _20. Ibid. at 311111. (New Yorki American Photograph(c book Publishing Co.,1971),p, 21. that of 400. 22. Hotntes v, Curb. Pub, Co.. 303 P.Supp. 322 (1969) at 327. 4. v, C104.I.Isrror Ire..162 Mkt. N.Y. 776 09371 at 712. 23.Restatement of the low-Secondwroda. Tentatilo Draft No. 21. (PhIl. 3. Theism v. Nur*, Inolood. Pub. Co., 27o N E 2d 753 (1940) at 755. calelphia:Amotkan lowInstitut., _1973).p._20. 6 Ibid. 24 Eentativ Draft No. 13 0967), p. 121. 7. Mori.at 753 54. 21.Aid U. Berg v.Minneapo(is Star frobuo. Co., 79 Supp. 957(19411)ur 26 Cunrroll v. forelli Cly Pub. Co.. 4111.0 S. 209 (1974) olft .961. 27! Florida Pub. Co. v. 111.1rbor, 2 AteP t Spa 1019 (1976) ot 7 9. Pony v. Curtis Pub. Cb., 711 Supp303 (i9411),.at 309. 24.NIspn VGlobo,,2 Mod I, Kph 1219 (1977) at 1220. 10. Mortsn v. Dorron, 210 Mite, 669 (1951) at 672. 29. Ibtd al 1221. . Id. ot 615. 30 V.4 v. Sports Illuslrol.d, 2 Med L NM, .1271 (1976) at 972. 17 lovertOn v.Curfis Pub, Co.,192I' 21 974 (1951.) at 977 79. 31 lbal. 13. Cal ..41.1.rast Pub. Co .231 P.2d 370 (1951) al 370 71. lbod. 14. ,239 P 2d 636 0952) at 6311. 13. , 253 P 2d 441 (1953) at 444. 33, Rsisratemenr. No. 21, p. U..- 11 16. Cill a. Curlo Pub. Co ,231 P.2d 503 (1951) at5611. 34 Zarrbmi VSU.PPS Noword, 43 tW 4934.(1977) at 4959.

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