FSM SUPREME COURT
TRIAL DIVISION

CIVIL ACTION NO. 1992-1019

JEANNIE NETHON,
Plaintiff,

vs.

MOBIL OIL MICRONESIA, INC.,
Defendant.
___________________________________

CIVIL ACTION NO. 1993-1010

JEANNIE NETHON,
Plaintiff,

vs.

MITCHELL P. WARNER,
Defendant.
___________________________________	)

MEMORANDUM OF DECISION

Martin Yinug
Associate Justice

Hearing: January 31, 1994
Decided: July 11, 1994

APPEARANCES:

For the Plaintiff:	R. Barrie Michelsen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant:	Thomas Sterling, Esq.
 (Mobil Oil)		Klemm, Blair, Sterling & Johnson
1008 Pacific News Building
236 Archbishop F.C. Flores Street
Agaña, Guam 96910

For the Defendant:	Fredrick L. Ramp, Esq.
(Warner)		P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Choice of Law; Torts
Since state law generally controls the resolution of tort issues the duty of the FSM Supreme Court in a diversity case involving tort law is to try to apply the law the same way the highest state court would. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 455 (Chk. 1994).

Common Law; Torts
Common law tort principles from other jurisdictions have previously been adopted by the Chuuk State Supreme Court where there has been no constitutional or traditional impediment to doing so. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 455 (Chk. 1994).

Constitutional Law - Declaration of Rights; Torts - Invasion of Privacy
While the constitutional provision barring invasion of privacy only protects persons from governmental intrusion into their affairs, not from intrusions by private persons, it does indicate a policy preference in favor of protection of privacy. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 455 (Chk. 1994).

Torts - Invasion of Privacy
Privacy law comprises four distinct kinds of invasion (although other forms may arise) of four different interests of the plaintiff, which are tied together by a common name, but otherwise have little in common except that each represents an interference with the right to be let alone. A plaintiff's privacy may be invaded in two or more of the four tortious ways and in those cases he may maintain his action for invasion of privacy on all of the grounds available. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 455-56 (Chk. 1994).

Torts - Invasion of Privacy
The elements of the privacy tort of unreasonable publicity given to the other's private life are: 1) there must be a public disclosure; 2) the facts disclosed must be private facts, rather than public ones; and 3) the matter made public must be one that would be offensive and objectionable to a reasonable person of ordinary sensibilities. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 456 (Chk. 1994).

Torts - Invasion of Privacy
Whoever publicizes a matter about another that places the other in a false light before the public is liable for tortious invasion of privacy if the false light in which the other was placed would be highly offensive to a reasonable person, and the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 456 (Chk. 1994).

Torts - Invasion of Privacy
One is liable for intentional intrusion, physical or otherwise, upon the solitude or seclusion or private affairs or concerns of another if the intrusion would be highly offensive to the reasonable person. The unauthorized photographing of a person who is not in a public place will incur liability for the unreasonable intrusion upon the seclusion of another. Failure of the plaintiff to plead she was not in a public place when the photograph was taken means an essential element of the tort has not been pled. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 457 (Chk. 1994).

Torts - Invasion of Privacy
There may be liability for the tort of appropriation of another's name or likeness when one appropriates the name or likeness of another for his own use or benefit. The right is in the nature of a property right. Incidental use of a name or likeness does not incur liability. Plaintiff's name or likeness must have intrinsic commercial or value associated with it. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 457-58 (Chk. 1994).

Torts - Invasion of Privacy
There may be liability for unauthorized use of name or likeness when the plaintiff is identifiable from the appropriated name or likeness, the name or likeness is used for trade or advertising purposes, and the use is unauthorized. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 458-59 (Chk. 1994).

Torts - Invasion of Privacy
Consent is not effective beyond the scope for which it is given. Therefore consent to have one's photograph taken is not consent for its exhibition or publication. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 459 (Chk. 1994).

Civil Procedure - Summary Judgment
A defendant's mere denial that the calendar was used for advertising purposes does not set forth specific facts to show that this is a genuine issue for trial as an adverse party must do when faced with a motion for summary judgment. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 459 (Chk. 1994).

Torts - Invasion of Privacy
A court can find as a matter of law whether defendant's use of plaintiff's likeness was predominately commercial because the characterization of the nature of an alleged tortious publication or a defense to such a claim is often decided as a matter of law. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 459 (Chk. 1994).

Torts - Invasion of Privacy
In the invasion of privacy context courts interpret "advertising purposes" broadly to include the use of a person's name or picture for all types of promotional endeavors. Thus where a corporation widely distributed its calendar free to the public for use and display wherever it does business the court may conclude as a matter of law that the calendar was used for advertising or trade purposes. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 459 (Chk. 1994).

Torts - Invasion of Privacy
Incidental unauthorized use of a name or likeness is not actionable if the use was in the context of a public event or newsworthy item of public interest. Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 459 (Chk. 1994).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

This is an action in tort. The plaintiff is Jeannie Nethon, a citizen of Chuuk. The defendants are Mobil Oil Micronesia, Inc. (Mobil Oil), a corporation of foreign ownership, and Mitchell P. Warner, a citizen of the United States. This court's jurisdiction is based upon the parties' diversity of citizenship. FSM Const. art. XI, § 6(b).

I.

Defendant Mitchell P. Warner photographed the plaintiff holding a baby, allegedly without the plaintiff's consent. He later sold defendant Mobil Oil the right to use the photograph in its 1991 calendar, which was distributed free throughout the FSM and other countries in Micronesia in which it does business. There was no signed model release by the plaintiff. Plaintiff's picture appeared on the calendar page for the months of January and February.

On May 28, 1992, the plaintiff, then a minor, filed suit by her next friend against defendant Mobil Oil1 asking $100,000 compensatory damages and $100,000 punitive damages for the alleged unlawful taking and use of her photograph without her consent which the plaintiff contends caused her mental suffering and exposed her to public ridicule and amusement. On May 12, 1993, the plaintiff filed a Motion for Partial Summary Judgment on the issue of the defendant Mobil Oil's liability. Plaintiff alleged that defendant was liable under the theory of section 652C of the Restatement (Second) of Torts, styled as appropriation of one's likeness for the benefit of another. Defendant's opposition, filed June 24, 1993, argued that plaintiff was not entitled to summary judgment on this theory because one of the elements of an appropriation of name or likeness cause of action is that the plaintiff's name or likeness must already have an intrinsic value that was appropriated for another's benefit.2 At oral argument on January 31, 1994, plaintiff's counsel conceded this to be the case.

Counsel, however, contended that plaintiff's cause of action was actually for invasion of privacy and that actionable invasion of privacy consisted of four separate torts of which appropriation of name or likeness was only one. Plaintiff's counsel then chose to focus the argument on the tort of unreasonable intrusion into the seclusion or solitude of another - Restatement section 652B. Defendant Mobil Oil requested an opportunity to file a further memorandum if the motion was to be argued on any basis other than Restatement section 652C. I granted the request. Defendant Mobil Oil's supplemental memorandum has been received and considered, as has plaintiff's response to it. Defendant Mobil Oil contends that the plaintiff has made no factual showing of an intrusion into plaintiff's privacy that would be highly offensive to a reasonable person, necessary for a finding of liability under section 652B. Plaintiff's response started with the comment: "Being lost in the discussion about which section of the Restatement applies is that the plaintiff in this case simply asks the court to adopt the law of privacy that was established in the United States in the early years of this century."

II.

This action is governed by the substantive law of the State of Chuuk. "[P]rimary lawmaking powers for the field of torts lie with the states, not the national government." Edwards v. Pohnpei, 3 FSM Intrm. 350, 359 (Pon. 1988). Since state law generally controls the resolution of tort issues my duty is to try to apply the law the same way the highest state court would. Id. at 360 n.22.

"The Chuuk State Supreme Court has adopted common law tort principles as the law of Chuuk State on numerous occasions." Epiti v. Chuuk, 5 FSM Intrm. 162, 165 (Chk. S. Ct. Tr. 1991). "[C]ommon law decisions of the United States Courts, and other United States legal authorities may be applied where no specific constitutional or traditional impediment to adoption of foreign law exists." Id. The Chuuk State Supreme Court has previously adopted Restatement sections as the law of Chuuk, Meitou v. Uwera, 5 FSM Intrm. 139, 142-43 (Chk. S. Ct. Tr. 1991) (adopting Restatement (Second) of Torts §§ 13, 18(1)), except where contrary to traditional Chuukese concepts, see Epiti, 5 FSM Intrm. at 167 (adopting the reasoning of Suka v. Truk, 4 FSM Intrm. 123, 127-28 (Truk S. Ct. Tr. 1989) in declining to adopt Restatement defense of contributory negligence as now disfavored in common law jurisdictions and contrary to Chuukese traditional concepts). While these are trial division decisions I have no reason to believe that the Appellate Division of the Chuuk State Supreme Court would decide matters differently.

No constitutional or traditional impediment to the adoption of the Restatement sections as privacy tort law in Chuuk is apparent; nor has any been pled. While the constitutional provision barring the invasion of a person's privacy, FSM Const. art. IV, § 5, only protects persons from governmental intrusion into their affairs, not from intrusions by private persons, it does indicate a policy preference in favor of protection of privacy. Therefore, I may use Restatement sections as guidance as to the privacy tort law of the State of Chuuk.

III.

"[T]he law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by a common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff `to be let alone.'" W. Page Keeton, Prosser and Keeton on the Law of Torts 851 (5th ed. 1984). These four are: unreasonable intrusion upon the seclusion of another, appropriation of another's name or likeness, unreasonable publicity given to the other's private life, and publicity that unreasonably places the other in false light before the public. Restatement (Second) of Torts § 652A(2) (1977). Although only these four forms of invasion of privacy tort liability have crystallized, other forms of privacy tort liability may appear. Id. cmt. c. Additionally, a plaintiff's privacy may be invaded in two or more of the four tortious ways and in those cases the plaintiff may maintain his action for invasion of privacy on all of the grounds available. Id. cmt. d.

IV.

Because the summary judgment motion against defendant Mobil Oil, although originally focused on Restatement section 652C, is based generally on invasion of privacy torts, a brief survey of these four theories of liability and their possible application to the facts in the pleadings and filings before me is helpful.

A. Unreasonable Publicity Given to the Other's Private Life

This privacy tort has three basic elements: "(1) there must be a public disclosure; (2) the facts disclosed must be private facts, rather than public ones; and (3) the matter made public must be one that would be offensive and objectionable to a reasonable person of ordinary sensibilities." 62A Am. Jur. 2d Privacy § 91 (1990) (footnotes omitted). The plaintiff's allegations do not recite that, or indicate that, any private facts were made public through defendant Mobil Oil's publication of the plaintiff's photograph. This tort is inapplicable.

B. Publicity That Unreasonably Places the Other in False Light Before the Public

Under this theory someone who publicizes a matter about another that places the other in a false light before the public is liable for tortious invasion of privacy if "the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Restatement (Second) of Torts § 652E (1977). For liability to exist for false light invasion of privacy it is not necessary, although it is often the case, that the plaintiff be defamed; the plaintiff need only be subject to an unreasonable and highly objectionable false portrayal before the public based on the sensibilities of a reasonable person. Id. cmt. b; see also 62A Am. Jur. 2d Privacy § 122 (1990) (distinctions between torts of false light and defamation).

One of the earliest successful actions sounding in false light invasion of privacy was a false depiction or portrayal of a person's parenthood status. Vanderbilt v. Mitchell, 72 N.J. Eq. 910, 67 A. 97 (1907) (husband falsely depicted as child's father) (discussed in Russell G. Donaldson, Annotation, False Light Invasion of Privacy-Neutral or Laudatory Depiction of Subject, 59 A.L.R.4th 502, 550-51 (1988)). Plaintiff in this action avers that: "People that have seen the picture have assumed that the baby I am holding is mine. They also know I am not married, which makes it embarrassing." Pl.'s Answer to Def.'s First Set of Interrogatories at 2. I also note that on the "Stock Picture Delivery/Invoice"3 whereby the defendant photographer sold defendant Mobil Oil the right to use the picture, the photograph was described as "Truk: Mother and Child."

Whether that caption appeared in the calendar as issued to the public I cannot tell as the actual calendar page is not in the pleadings and filings before me. Also not placed before me is authority by which I may impute any of the defendant photographer's knowledge or reckless disregard as to the falsity of the plaintiff's status as a mother to the defendant Mobil Oil, and any evidence as to the photographer's knowledge or recklessness; or any argument or authority as to whether I may find defendant Mobil Oil's acceptance of the photographer's characterization of the photograph as reckless disregard as to its falsity and the false light in which the plaintiff would be placed. Therefore I must conclude that, on the current state of the pleadings, I cannot grant the plaintiff summary judgment on a false light cause of action.

C. Unreasonable Intrusion Upon the Seclusion of Another

Under this theory one is liable for intentional intrusion, physical or otherwise, upon the solitude or seclusion or private affairs or concerns of another "if the intrusion would be highly offensive to the reasonable person." Restatement (Second) of Torts § 652B (1977).

The unauthorized photographing of a person while not in a public place will incur liability under this tort, and even a photograph taken in a public place will if it reveals something, such as the plaintiff's underwear, not generally open to the public gaze. Id. cmt c. There is generally no liability for the taking of an unauthorized photograph of a plaintiff while she is in a public place. 62A Am. Jur. 2d Privacy § 66 (1990); Phillip E. Hassman, Annotation, Taking Unauthorized Photographs as Invasion of Privacy, 86 A.L.R.3d 374, 378-81 (1978).

The plaintiff in this case has not pled that she was not in a public place when the photograph was taken. She only alleges that it was taken with a telephoto lens. Complaint para. 4. Defendant Mobil Oil denies this. Answer para. 5. Even if a telephoto lens was used it could have just as easily been used to photograph the plaintiff in a public place as not. Since intentional intrusion into a private place or into something not open to the public gaze is an essential element of this tort and since it has not been pled by the plaintiff I cannot grant summary judgment on this theory. See, e.g., Nelson v. Maine Times, 373 A.2d 1221, 1223 (Me. 1977).

Furthermore, I have no authority before me on whether I may impute any alleged intrusion by defendant Warner to defendant Mobil Oil against whom summary judgement is sought.

D. Appropriation of Another's Name or Likeness

This is the first theory of liability that the plaintiff focused on in her attempt to obtain summary judgment against Mobil Oil. For there to be liability under this theory one must appropriate the name or likeness of another for his own use or benefit. Restatement (Second) of Torts § 652C (1977). The right is in the nature of a property right. Id. cmt. a. Incidental use of a name or likeness does not incur liability.

[N]or is the value of a name or likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for the purposes of publicity. . . . It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with . . . that the right to privacy is invaded.

Id. cmt. d. It is this point that defendant Mobil Oil initially raised as a defense to the current motion which evidently caused the plaintiff to change her focus from Restatement section 652C to 652B. The plaintiff conceded at oral argument that her likeness had no intrinsic commercial value and abandoned argument based on a strict reading of section 652C and its comments.

Plaintiff did argue, albeit indirectly, that a value associated with the plaintiff's likeness that the defendant might have wished to appropriate was its identification with Micronesia - defendant Mobil Oil wished to be identified with Micronesia and a Micronesian likeness would facilitate that. This argument was unsupported by affidavit or by admissions in the pleadings and other papers before me. Defendant cites case law to show that where plaintiffs' likenesses had no prior intrinsic value they cannot maintain an action for misappropriation of likeness. Cox v. Hatch, 761 P.2d 556, 564 (Utah 1988) ("the complaint fails because it must allege that the plaintiffs' names or likeness have some `intrinsic value' that was used or appropriated for the defendant's benefit. The plaintiffs do not allege that their appearances have any intrinsic value or that they enjoy any particular fame or notoriety.") (citations omitted). Therefore if I adhere strictly to the Restatement position on this theory of liability I must deny summary judgment at this time.

E. Unauthorized Use of Name or Likeness in Advertising

Plaintiff nevertheless urges that the court not become lost in a discussion of which Restatement section applies and instead "adopt the law of privacy that as established in the United States in the early years of this century." She evidently is referring to the statutory cause of action in New York for appropriation of a name or likeness for advertising and trade purposes (which may be considered a sub-variety or variation of the section 652C cause of action) that has since been adopted as statute4 or common law in other American jurisdictions. See, e.g., Colgate-Palmolive Co. v. Tullos, 219 F.2d 617 (5th Cir. 1955) (where plaintiff was no longer employee of defendant's agent use of her photo in defendant's advertising without her consent made defendant liable under Georgia common law for general damages without proof of special damages); Tellado v. Time-Life Books, Inc., 643 F. Supp. 904 (D.N.J. 1986) (following earlier New Jersey common law precedent; plaintiff Vietnam vet whose photo was used in promotional letter included in first volume of series of books on Vietnam war to encourage purchase of complete set, but whose photo did not appear anywhere in the books, stated a cause of action for misappropriation of likeness); Fergerstrom v. Hawaiian Ocean View Estates, 441 P.2d 141, 144 (Haw. 1968) (judicial recognition of a right not to have one's name and picture used without permission as part of advertising campaign; developer could not use picture of homebuyer without permission in promotions for housing development); Continental Optical Co. v. Reed, 86 N.E.2d 306, 14 A.L.R.2d 743 (Ind. App. 1949) (defendant liable under common law for use of plaintiff's photo taken in the army to advertise its optical products); Kunz v. Allen, 172 P. 532 (Kan. 1918) (plaintiff of whom a film was taken without her knowledge or consent while in defendant store stated a cause of action under common law for film's use to advertise store and is entitled to recover without proof of special damage) (citing Paevish v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905)). Essentially, its elements are that the plaintiff must be identifiable from the appropriated name or likeness, the name or likeness must be used for trade or advertising purposes, and the use must be unauthorized.

In the present case the parties do not dispute that the plaintiff is readily identifiable from her likeness published in defendant Mobil Oil's 1991 calendar. Defendant Warner avers that he approached the plaintiff and obtained her consent to be photographed. Answer to Plaintiff's First Set of Interrogatories to Defendant (Warner) at 2. He does not aver that he obtained consent for its publication in Mobil Oil's calendar. Consent is not effective beyond the scope for which it is given. See, e.g., Clayman v. Bernstein, 38 Pa. D. & C. 543, 546-47 (1940) (where plaintiff only consented to have her photograph taken for defendant's private files he had no right to exhibit it to others without her permission) (quoted in Estate of Berthiaume v. Pratt, 365 A.2d 792, 86 A.L.R.3d 365, 372 (Me. 1976)). Defendant Mobil Oil stipulated at oral argument that no release was ever obtained for the use of plaintiff's photograph on its calendar. Mobil Oil's use of the photograph was thus unauthorized.

Plaintiff asserts, and Mobil Oil denies, that the 1991 calendar was used for advertising purposes. I cannot grant summary judgment as a matter of law when a genuine dispute of a material fact exists. However, defendant Mobil Oil's mere denial that the calendar was used for advertising purposes does not "set forth specific facts to show that [this] is a genuine issue for trial" as an adverse party must do when faced with a motion for summary judgment. FSM Civ. R. 56(e). Furthermore, "[t]he characterization of the nature of an alleged tortious publication or a defense to such a claim is often treated as a matter of law for the court." Tellado, 643 F. Supp. at 910 (court could find as a matter of law whether defendant's use of plaintiff's likeness was predominately commercial).

In the invasion of privacy context courts interpret "advertising purposes" broadly "to include the use of a person's name or picture for all types of promotional endeavors . . . ." 62A Am. Jur. 2d Privacy § 77, at 698 (1990). Mobil Oil admits that hundreds of copies of the 1991 calendar with the plaintiff's picture were distributed free to the public throughout Micronesia and were prominently and publicly displayed, but denies that this was done for trade or advertising purposes. The only conceivable purpose for this widespread gratuitous distribution within the geographic area it does business is to create goodwill for defendant Mobil Oil. Goodwill can be a valuable business asset. See 38 Am. Jur. 2d Good Will §§ 8, 25 (1968). I therefore find that no genuine issue of material fact has been raised and conclude that as a matter of law the defendant's calendar was produced and used for trade or advertising purposes.

Defendant Mobil Oil has also argued that its use of the plaintiff's photograph was incidental - "a face in the crowd." The invoice description of the photograph - "Truk: Mother and Child" - is enough to show that the plaintiff's likeness was not merely a face in the crowd. Non-actionable incidental use of a picture has generally been limited to its publication in the context of a newsworthy article published as a matter of public interest and may include later use of the article for promotional purposes. See generally I.J. Schiffres, Annotation, Invasion of Privacy by Use of Plaintiff's Likeness in Advertising, 23 A.L.R.3d 865, 882-88 (1969); 62A Am. Jur. 2d Privacy § 18 (1990); see also Cox, 761 P.2d at 565-66; Tellado, 643 F. Supp. at 909 ("a misappropriation claim for a public event will stand only if the plaintiff's likeness is used for predominately commercial purposes"); Lawrence v. A.S. Abell Co., 475 A.2d 448, 452-54 (Md. 1984). That is not the case here. Plaintiff's photograph was not taken in connection with a matter of public interest or any newsworthy event.

V. CONCLUSION

Thus if I choose to adopt a cause of action for unauthorized use of a name or likeness in advertising I may grant summary judgment for the plaintiff as a matter of law as there is no genuine issue of material fact. I see no impediment to doing so. Other jurisdictions have judicially recognized that "protection is available for appropriation of name or picture for commercial purposes." Fergerstrom, 441 P.2d at 144. That protection ought to be available here as well. Therefore plaintiff's motion for partial summary judgment on the issue of liability against defendant Mobil Oil Micronesia, Inc. is hereby granted.

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