Jackson v. Playboy Enterprises, Inc.
Decision Date | 01 April 1983 |
Docket Number | No. C-3-82-140.,C-3-82-140. |
Citation | 574 F. Supp. 10 |
Parties | Kelly JACKSON, et al., Plaintiffs, v. PLAYBOY ENTERPRISES, INC., Defendant. |
Court | U.S. District Court — Southern District of Ohio |
William J. Melvin, Columbus, Ohio, for plaintiffs.
Mike Fain, Dayton, Ohio, for defendant.
DECISION AND ENTRY GRANTING DEFENDANT'S MOTION TO DISMISS; COMPLAINT DISMISSED; TERMINATION ENTRY
The captioned cause is a diversity action brought by Plaintiffs against Defendant, Playboy Enterprises, Inc. ("Playboy"), for invasion of privacy. Plaintiffs, three minor boys, were photographed on a Springfield, Ohio city sidewalk with Springfield police-woman Barbara Schantz. The photograph later appeared in the May, 1982 issue of Playboy magazine, as part of an article which featured primarily nude photographs of policewoman Schantz.1 Plaintiffs allege that the publication of said photograph by Defendant "destroyed" their right of privacy and "humiliated, annoyed, disgraced, and exposed them to public contempt and ridicule." (Complaint, ¶ 10)
This case is presently before the Court on Defendant's Motion to Dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6), wherein Defendant urges the Court to find that publication of the photograph in question does not constitute an actionable invasion of privacy under any theory recognized by Ohio courts. A Motion to Dismiss for failure to state a claim upon which relief can be granted may be granted only if it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See, Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976). For the reasons set forth below, the Court concludes that Plaintiffs' complaint is fatally defective, in that it sets forth no set of facts entitling them to relief on the theory of invasion of privacy under Ohio law. In other words, even if this Court assumes the facts as alleged by Plaintiffs to be true, the Plaintiffs' complaint would fail as a matter of law to state a claim upon which relief can be granted. Defendant's Motion to Dismiss is therefore granted, and the instant case is hereby dismissed in its entirety.
Preliminarily, the Court notes that federal courts exercising jurisdiction over diversity actions must apply the law of the state in which they are situated, as determined by that state's highest court. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1937). Therefore, because the present case is a diversity action, this Court must apply the law of the state of Ohio, as declared by the Ohio Supreme Court, in order to determine whether Plaintiffs have stated a cause of action for invasion of privacy.
The Ohio Supreme Court first recognized a cause of action for invasion of privacy in Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956), an action brought for wrongful intrusion upon a person's seclusion. In Housh, the Court held that:
Housh impliedly established the principle that various kinds of conduct might constitute a cause of action for invasion of privacy (i.e., appropriation of one's personality, publication of private affairs, or wrongful intrusion into private affairs). In 1976, however, the Ohio Supreme Court decided Zacchini v. Scripps-Howard Broadcasting Co., 47 Ohio St.2d 224, 351 N.E.2d 454 (1976), rev'd on other grounds, 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977), an action for invasion of privacy based on the narrow theory of "`unlawful appropriation of plaintiff's professional property'", id. at 225, 351 N.E.2d 456, in which the Court refined its definition of what constitutes invasion of privacy. Therein, the Court found that appropriation is but one form of the "general tort of interference with the right of privacy," id., as recognized by the (then) proposed Restatement (Second) of Torts (1975)2 and by William L. Prosser in Privacy, 48 Calif.L.Rev. 383 (1960).
Zacchini was followed by Sustin v. Fee, 69 Ohio St.2d 143, 431 N.E.2d 992 (1982), an action for invasion of privacy for intrusion upon plaintiffs' right of seclusion. In Sustin, the Court recognized that "today the intrusion into a person's seclusion is recognized as but one of the four separate branches of tortious invasion of privacy". Id. at 145, 431 N.E.2d 993 (note 4). These four separate branches of invasion of privacy, the Court stated, "are set out in Section 652(A) of the Restatement of Torts 2d 1977, at page 516, as follows:
Id. Thus, the Ohio Supreme Court made it clear in Sustin that it was adopting the rule of the Restatement (Second) of Torts, § 652 (1977), for what constitutes an actionable invasion of privacy in Ohio.
The Court concludes, therefore, that in order to state a cause of action for invasion of privacy under current Ohio law, Plaintiffs must establish that:
A. Intrusion Upon Plaintiffs' Seclusion
In Sustin, supra, the Ohio Supreme Court stated that "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 privacy." Id. at 145, 431 N.E.2d 992-93 (quoting, Restatement (Second) of Torts § 652B (1977)). However, "the defendant is subject to liability ... only when he has intruded into a private place, or has otherwise invaded a private seclusion." Restatement, supra, comment c.
Plaintiffs have not alleged that Defendant intruded into a private place or private seclusion; nor does it appear that Plaintiffs could. Rather, the photograph of which Plaintiffs complain clearly shows that policewoman Schantz and Plaintiffs were on a city sidewalk in plain view of the public eye. The Court believes that Plaintiffs have failed to set forth facts, which if true, would be necessary to establish an intrusion into Plaintiffs' privacy or seclusion.
B. Appropriation of Plaintiffs Names or Likenesses
In Ohio, the law protects "each individual's ... exclusive use of his own identity" from misuse, Zacchini, supra, 47 Ohio St.2d at 229, 351 N.E.2d at 458, whether the misuse is for commercial purposes or not. "The fundamental wrong is the appropriation for one's self of the benefit of anothers name, likeness, or identity, and the wrong is the same whether or not that benefit is pecuniary." Id.
However, in order to state a cause of action for invasion of privacy by appropriation, something more than incidental publication of name or likeness must be alleged. Rather, "defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness." Restatement, supra, comment c. Thus, in order to state a cause of action for invasion of privacy by appropriation, the complaint must allege that plaintiff's name or likeness has some intrinsic value, which was taken by defendant for its own benefit, commercial or otherwise.
Although in the instant case Plaintiffs have alleged that Defendant purposely exploited them (see, Complaint, ¶ 9), and that they have been "humiliated, annoyed, disgraced, and exposed to public contempt and ridicule," (Complaint, ¶ 10), Plaintiffs have not given any indication that their likenesses have value in and of themselves which could be taken by someone else for his or her benefit. Plaintiffs have not alleged that their names or identities were publicized. Moreover, Plaintiffs have set forth no facts in support of their allegation that they have been "exposed to public contempt and ridicule." Id. In sum, the Court simply does not believe that the facts, if taken as true, could establish an appropriation of Plaintiffs names or likenesses so as to constitute an invasion of privacy.
C. Unreasonable Publicity Given to Plaintiffs' Private Lives
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