Eastwood v. Superior Court

• Citation: 198 Cal.Rptr. 342,149 Cal.App.3d 409
• Court: California Court of Appeals
• Decision Date: 01 December 1983
• Parties: , 10 Media L. Rep. 1073 Clint EASTWOOD, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, NATIONAL ENQUIRER, INC., Real Party in Interest. Civ. 67746.

Page 342

198 Cal.Rptr. 342

149 Cal.App.3d 409, 10 Media L. Rep. 1073

Clint EASTWOOD, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent NATIONAL ENQUIRER, INC., Real Party in Interest.

Civ. 67746.

Court of Appeal, Second District, Division 7, California.

Dec. 1, 1983.

Hearing Denied March 22, 1984.

Gang, Tyre, & Brown, Robin Russell and Howard King, Los Angeles, for petitioner.

No appearance by respondent.

Williams & Connolly, Irving Younger, F. Lane Heard, III, Washington, D.C., Irell & Manella, Richard H. Borow, P.C., and Jonathan H. Steinberg, Los Angeles, for real party in interest.

THOMPSON, Associate Justice.

In this proceeding in mandate, ¹ we inquire into the propriety of the respondent court's ruling sustaining without leave to amend the general demurrer of the real party in interest, National Enquirer, Inc. (Enquirer), to the second cause of action of the complaint of petitioner, Clint Eastwood (Eastwood), for commercial appropriation of the right of publicity. We consider whether the unauthorized use of a celebrity's name, photograph, or likeness on the cover of a publication and in related telecast advertisements, in connection with a published nondefamatory article, which is false but presented as true, constitutes an actionable infringement of that person's right of publicity under both the common law and Civil Code section 3344, subdivision (a). We have determined that such use constitutes commercial exploitation and is not privileged or protected by constitutional considerations or expressly exempted as a news account under Civil Code section 3344, subdivision (d). Accordingly, we have concluded that the respondent court improperly sustained the general demurrer to the second cause of action without leave to amend.

Facts and Proceedings Below

The facts before this court as set forth in the petition of Eastwood and the return of the Enquirer are not in substantial dispute.

Eastwood, a well-known motion picture actor, filed a complaint containing two causes of action against the Enquirer. The gist of the first cause of action is for false light invasion of privacy. The second cause of action is for invasion of privacy through the commercial appropriation of name, photograph and likeness under both the common law and Civil Code section 3344.

The following pertinent facts emerge from the allegations of the first cause of action. The Enquirer publishes a weekly newspaper known as the "National Enquirer" which enjoys wide circulation and is read by a great number of people. In its April 13, 1982 edition of the National Enquirer, the Enquirer published a 600-word article about Eastwood's romantic involvement with two other celebrities, singer Tanya The article is headlined "Clint Eastwood in Love Triangle" and appears on page 48 of this edition. Eastwood alleges the article is false and in this regard alleges:

Tucker and actress Sondra Locke. On the cover of this edition appeared the pictures of Eastwood and Tucker above the caption "Clint Eastwood in Love Triangle with Tanya Tucker." ²

"(a) The offending article falsely states that Eastwood 'loves' Tucker and that Tucker means a lot to him.

"(b) The offending article falsely states that Eastwood was, in late February, 1982, swept off his feet and immediately smitten by Tucker; that Tucker makes his head spin; that Tucker used her charms to get what she wanted from Eastwood; and that Eastwood now daydreams about their supposedly enchanted evenings together.

"(c) The offending article falsely states that Eastwood and Tucker, in late February, 1982, shared 10 fun-filled romantic evenings together; were constantly, during that period, in each other's arms; publicly 'cuddled' and publicly gazed romantically at one another; and publicly kissed and hugged.

"(d) The offending article falsely states that Eastwood is locked in a romantic triangle involving Tucker and Sondra Locke ('Locke'); is torn between Locke and Tucker; can't decide between Locke and Tucker; is involved in a romantic tug-of-war involving Locke and Tucker; that Locke and Tucker are dueling over him; that Tucker is battling Locke for his affections; and that when he is with Locke, Tucker is constantly on his mind.

"(e) The offending article falsely states that, in or about late February of 1982, there were serious problems in Eastwood's relationship with Locke; that he and Locke at that time had a huge argument over marriage; that he and Locke had a nasty fight; and that Locke stormed out of his presence.

"(f) The offending article falsely states that after his supposed romantic interlude with Tucker, Locke camped at his doorstep and, while on hands and knees, begged Eastwood to 'keep her', vowing that she wouldn't pressure him into marriage; but that Eastwood acted oblivious to her pleas."

Eastwood further asserts that Enquirer "published the offending article maliciously, willfully and wrongfully, with the intent to injure and disgrace Eastwood, either knowing that the statements therein contained were false or with reckless disregard of ... their ... falsity." Enquirer used Eastwood's name and photograph without his consent or permission. As a consequence thereof, Eastwood alleges that he has suffered mental anguish and emotional distress and seeks both compensatory and punitive damages.

The second cause of action of the complaint incorporates all the allegations of the first cause of action concerning the status of Enquirer and the falsity of the article. It does not, however, incorporate the allegation that the article was published with knowledge or in reckless disregard of its falsity.

Additionally, Eastwood alleges that the Enquirer made a telecast advertisement in which it featured Eastwood's name and photograph and mentioned prominently the subject article. Moreover, Eastwood alleges that the telecast advertisements as well as the cover of the April 13 publication were calculated to promote the sales of the Enquirer. Eastwood asserts that the unauthorized use of his name and photograph has damaged him in his right to control the commercial exploitation of his name, photograph and likeness, in addition to injuring his feelings and privacy. Eastwood seeks damages under both the common law and Civil Code section 3344.

Enquirer did not challenge the legal sufficiency of the first cause of action for invasion of privacy by placing Eastwood in a false light in the public eye.

Enquirer demurred to the second cause of action for invasion of privacy through appropriation of name, photograph and likeness on the basis it failed to state a cause of action on two grounds: (1) Eastwood's name and photograph were not used to imply an endorsement of the Enquirer; and (2) Eastwood's name and photograph were used in connection with a news account.

The respondent court sustained the general demurrers of Enquirer without leave to amend, and this petition followed. ³ We granted an alternative writ.

Issues

This petition poses two basic issues: (1) Has Eastwood stated a cause of action for commercial appropriation of the right of publicity under either the common law or Civil Code section 3344? (2) Is the conduct of the Enquirer privileged so as not to constitute an infringement of Eastwood's right of publicity?

Discussion

In order to put the issues raised by these proceedings into proper focus, we consider first the framework of Eastwood's complaint against the Enquirer.

California has long recognized a common law right of privacy ⁴ (see, e.g., Melvin v. Reid (1931) 112 Cal.App. 285, 297 P. 91), which provides protection against four distinct categories of invasion (see Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, fn. 16, 81 Cal.Rptr. 360, 459 P.2d 912). These four distinct torts identified by Dean Prosser ⁵ and grouped under the privacy rubric are: (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. (See Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 819, 160 Cal.Rptr. 323, 603 P.2d 425; Weinstein, Commercial Appropriation of Name or Likeness: Section 3344 and the Common Law (1977) 52 L.A.Bar J. 430; Note, Commercial Appropriation of an Individual's Name, Photograph or Likeness: A New Remedy for Californians (1972) 3 Pac.L.J. 651, 655-656.)

Moreover, the fourth category of invasion of privacy, namely, appropriation, "has been complemented legislatively by Civil Code section 3344, adopted in 1971." (Lugosi v. Universal Pictures, supra, 25 Cal.3d at p. 819, fn. 6, 160 Cal.Rptr. 323, 603 P.2d 425.) ⁶ (Emphasis added.)

Civil Code section 3344, subdivision (a), provides in pertinent part as follows: "Any person who knowingly uses another's name, photograph, or likeness, in any manner, for purposes of advertising products, merchandise, goods, or services, or for purposes of solicitation of purchases of products ... without such person's prior consent ... shall be liable for any damages sustained by the person ... injured as a result thereof."

Eastwood has framed his complaint against Enquirer on the third and fourth branches of the right of privacy. His first cause of action, which is not at issue here, rests on the theory that the subject publication placed him in a false light in the public eye. The focus of this tort is the falsity of the published article. His second cause of action, which is at issue here, rests on alternative theories. One is the common law action of commercial appropriation. The other is the statutory remedy provided in Civil Code section 3344, subdivision (a), for the knowing use, without consent, of another's name, photograph or likeness for the purposes of advertising or solicitation of purchases.

A common law cause of...