Nelson v. Maine Times

Decision Date03 June 1977
Citation373 A.2d 1221
Parties2 Media L. Rep. 2011 Lorraine NELSON et al. v. Maine TIMES.
CourtMaine Supreme Court

Kenneth C. Thompson, Old Town, for plaintiffs.

Preti & Flaherty by David M. Cohen, Peter H. Rysman, Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, * POMEROY, WERNICK and ARCHIBALD, JJ.

ARCHIBALD, Justice.

The plaintiffs have appealed from a Superior Court ruling granting the defendant's motion to dismiss their complaint for 'failure to state a claim upon which relief can be granted'. Rule 12(b)(6), M.R.C.P.

We deny the appeals.

The plaintiffs, mother and minor son, are both described in the complaint as 'members of the Penobscot Tribe of Indians and reside on the Penobscot Tribal Indian Reservation, Indian Island, Old Town.'

The defendant is a newspaper published and circulated within the State of Maine, including the area of the State in which the plaintiffs live.

On February 16, 1973, the defendant published a picture of the infant plaintiff. This was done 'without his consent or authorization or the consent or authorization of his mother.' 1

The infant plaintiff contends that the publication of this photograph 'invaded the seclusion of his private life and exploited his likeness and his heritage as a member of the Penobscot Nation or Tribe of Indians.' He sought both compensatory and punitive damages.

Mrs. Nelson sought compensatory damages for her 'mental suffering and humiliation' since the 'unauthorized use of her son's picture . . . outraged and shocked her, she being a woman of ordinary sensibilities.'

We have frequently stated our reservations surrounding the use of 12(b)(6) motions. See Ace Ambulance Service, Inc. v. City of Augusta, 337 A.2d 661, 662 (Me.1975); Jones v. Billings, 289 A.2d 39, 40-41 (Me.1972); Richards v. Ellis, 233 A.2d 37, 38 (Me.1967). We would have serious doubts concerning the accuracy of the ruling, considering the theoretical amendability of the We now turn to the merits of the appeals.

infant plaintiff's complaint, were it not for the fact that at oral argument it was agreed by plaintiffs' counsel that the complaint could not be amended in any substantial manner to allege facts other than those recited therein. Furthermore, both counsel concurred that Rule 12(b)(6) was an appropriate vehicle to raise the issue sought to be determined. Neither brief suggests otherwise.

In the recent case of Estate of Berthiaume v. Pratt, M.D., 365 A.2d 792, 795-96 (Me.1976), we recognized for the first time four kinds of interests, the invasion of which may give rise to a tort action for breach of another person's right to privacy. Although enumerated otherwise in Berthiaume, we restate these interests as set forth more recently in Restatement (Second), Torts § 652A at 376: 2

'(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.

(2) The right of privacy is invaded by

(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or

(b) appropriation of the other's name or likeness, as stated in § 652C; or

(c) unreasonable publicity given to the other's private life, as stated in § 652D; or

(d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E.'

We view the infant plaintiff's complaint as an attempt to state a cause of action under three of the four grounds set forth above, which we will discuss separately.

I

An Intrusion Upon the Seclusion of Another

Restatement (Second), Torts § 652B provides:

'One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.'

In Berthiaume we recognized that it is an actionable tort to make an unauthorized intrusion upon a person's physical or mental solitude or seclusion. This concept requires proof of an actual invasion of 'something secret, secluded or private pertaining to the plaintiff'. Id. 365 A.2d at 795. It is not alleged that Maine Times physically intruded upon the plaintiff's 'solitude or seclusion.'

In Berthiaume the defendant made an uninvited entry into the hospital room of a dying person for the express purpose of taking unauthorized photographs, facts which are easily distinguishable from those now before us.

As is made clear by the comments and illustrations in Restatement (Second) of Torts, at 378-80, a complaint should minimally allege a physical intrusion upon premises occupied privately by a plaintiff for purposes of seclusion. See Froelich v. Werbin, 219 Kan. 461, 548 P.2d 482, 485 (1976). This complaint makes no such allegation.

Additionally, there is no averment that the publication of the picture was at all offensive to the plaintiff, although this segment of the tort clearly requires proof that the invasion be highly offensive to the ordinary reasonable man. See Restatement, supra, comment d at 380.

II An Appropriation of Another's Likeness

Restatement (Second), Torts § 652C provides 'One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.'

Was this admitted publication for the purpose of appropriating benefits associated with the picture of the infant plaintiff by the Maine Times? See, e. g., Zacchini v. Scripps-Howard Broadcasting Co., 47 Ohio St.2d 224, 351 N.E.2d 454, 458 (1976). We do have the benefit of the photograph. It depicts the face and upper body of an obviously young person set against a pastoral background. 3 The photograph shows no abnormality and suggests a young boy who appears to be content with his environment. Undoubtedly it could suggest to the viewer that the young lad was of Indian ancestry and it is so alleged.

We feel that these facts do not bring this publication within the ambit of Section 652C.

The protection afforded by the law to this right relates to ordinary sensibilities and cannot extend to 'supersensitiveness or agoraphobia.' Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 251 (1945). It seems to be generally held that if a person reasonably constituted could anticipate that such an appropriation could cause mental distress and injury to another who was possessed of ordinary feelings and intelligence, such an appropriation would be tortious.

Additionally, the appropriation must benefit the tortfeasor. This photograph was published on page 13 of the particular issue in conjunction with a book review. Restatement (Second), Torts § 652C, comment d, seems to resolve this issue, namely:

'd. Incidental use of name or likeness. The value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. 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 the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidential publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable under the rule stated in this Section to every person whose name or likeness it publishes.' (emphasis supplied)

See Neff v. Time, Inc., 406 F.Supp. 858, 861 (W.D.Pa.1976).

The infant plaintiff relies heavily on Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905), a case where the defendant had caused a newspaper advertisement to be published containing a photograph of the plaintiff who has depicted therein as urging the purchase of life insurance from the defendant. The plaintiff's likeness was compared with another 'illdressed and sickly looking person' who had not had the forethought (so the advertisement states), as had the plaintiff, to buy life insurance from the defendant. In Pavesich the photograph was unauthorized, the quotation was not only fabricated but false since the plaintiff had no life insurance with the defendant. The advertisement, by soliciting sales, was of direct pecuniary benefit to the defendant. Furthermore, the newspaper which printed the advertisement was not made a party. Thus, the only similarity between the holding there and the instant case is the unauthorized use of the photograph.

The cases are readily distinguishable.

III

Publicity Given to Private Life

Restatement (Second), Torts § 652D provides:

'One who gives publicity to a matter concerning the private life of another is...

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