Lawrence v. A.S. Abell Co.

• Decision Date: 01 September 1982
• Docket Number: No. 164,164
• Citation: 299 Md. 697,475 A.2d 448
• Parties: , 10 Media L. Rep. 2001 Zantia LAWRENCE et al. v. The A.S. ABELL COMPANY et al. ,
• Court: Maryland Court of Appeals

Page 697

299 Md. 697

475 A.2d 448, 10 Media L. Rep. 2001

Zantia LAWRENCE et al. v. The A.S. ABELL COMPANY et al.

No. 164, Sept. Term, 1982.

Court of Appeals of Maryland.

May 31, 1984.

Stephen N. Goldberg, Baltimore (Rebecca A. Bryant, Baltimore, on the brief), for appellants.

Abbe David Lowell, Washington, D.C. (Douglas D. Connah, Jr. and Venable, Baetjer & Howard, Baltimore, on the brief), for appellees.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

COLE, Judge.

The issue presented in this case is whether the right of privacy of two children and their mothers was invaded when a newspaper republished, for its own advertising campaign, a portion of an edition in which the children's photograph appeared. The facts are not in dispute.

On July 29, 1979, two infants, Zantia Lawrence and Kermit Fowlkes, Jr., were taken by Fowlkes' mother to an Afram Festival in downtown Baltimore. While there, Jed Kirschbaum, a photographer for the Sunpapers, requested permission to photograph the children for an article about the festival. Mrs. Fowlkes consented. The next day two photographs of the children appeared on the front page of all editions of The Evening Sun with a caption indicating the names and ages of the children and where the pictures had been taken.

About six weeks later The Evening Sun began an advertising campaign in which the top half of the front page of the issue that included the infants' photographs was reproduced with the banner headline changed to read, "More News is Good News." The advertising campaign consisted of billboards, commercials, and rack cards. Counsel for the infants and their mothers demanded, and was refused, compensation for the use of the photograph.

The mothers brought suit in the Superior Court of Baltimore City (now the Circuit Court for Baltimore City) alleging unauthorized use of the photograph in the advertising campaign and unjust enrichment. The court granted the motion for summary judgment filed by The A.S. Abell Company and Kirschbaum. The mothers appealed to the Court of Special Appeals, but we granted certiorari prior to consideration by the intermediate appellate court. For the reasons given below we affirm the judgment of the lower court.

The mothers' arguments for compensation are based on invasion of privacy and unjust enrichment. This case rests upon the determination of the first issue, because if there was no invasion of privacy for which the infants must be compensated, then the newspaper has not been unjustly enriched by using the photographs in its advertising campaign.

The invasion of the right of privacy was articulated as a separate tort in a famous article by Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). After a thorough examination of certain cases, the authors determined that a common law right of privacy was entitled to recognition because the substance of such a right already had been protected under the appearance of property rights, defamation, or breach of an implied contract. They concluded that violation of the right of privacy itself was actionable: "[t]he legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration." Id. at 198.

The first and leading case decided by a court of last resort in the United States recognizing this right, Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905), explained The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private, and there are matters public so far as the individual is concerned. [Id. 50 S.E. at 69.]

A later case adopting the right of privacy, Gill v. Curtis Publishing Co., 38 Cal.2d 273, 239 P.2d 630 (1952), recognized as persuasive some of the arguments advanced by that right's initial exponents:

"[T]he increased complexity and intensity of modern civilization and the development of man's spiritual sensibilities have rendered man more sensitive to publicity and have increased his need of privacy, while the great technological improvements in the means of communication have more and more subjected the intimacies of his private life to exploitation by those who pander to commercialism and to prurient and idle curiosity. A legally enforceable right of privacy is deemed to be a proper protection against this type of encroachment upon the personality of the individual." [ Id. at 277, 239 P.2d 630 (quoting 41 Am.Jur. Privacy, § 9).]

Maryland recognized the tort of invasion of privacy in Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (1962). In doing so, it joined the majority of states that have recognized this tort. ¹ Our cases have viewed with approval the Restatement's definition of the invasion of the right of privacy. See Hollander v. Lubow, 277 Md. 47, 351 A.2d 421, cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); Beane v. McMullen, 265 Md. 585, 291 A.2d 37 (1972); Household Fin. Corp. v. Bridge, 252 Md. 531, 250 A.2d 878 (1969). In these cases we quoted § 652A of the Restatement (Second) of Torts, which outlines the four distinct branches of the tort:

§ 652A. General Principle

(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.

The case sub judice is based on § 652A(2)(b), because the plaintiffs have alleged that the newspaper appropriated the children's likenesses for use in its advertising campaign. The Court in Pavesich v. New England Life Ins. Co., supra, initially recognized this aspect of the tort, noting that "the publication of one's picture without his consent by another as an advertisement, for the mere purpose of increasing the profits and gains of the advertiser, is an invasion of [the] right [of privacy]...." Id. 50 S.E. at 81. There have been a number of decisions in this particular area of the tort and one commentator concluded that "the effect of the appropriation is to recognize or create an exclusive right in the individual plaintiff to a species of trade name, his own, and a kind of trademark in his likeness." W. Prosser, Torts § 117, at 807 (4th Edition 1971).

This Court has not considered the appropriation for the defendant's benefit of a person's name or likeness, but § 652A(2)(b) directs our attention to § 652C which 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." The comments to this section indicate that it protects the individual's interest in the exclusive use of his identity from appropriation by another to advertise his business or product or for similar commercial purposes. However, Comment d explains that the tort does not apply to an incidental use of a person's 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 incidental 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.]

Several New York cases, arising under a statute making a person liable for using another's picture for advertising purposes, ² have analyzed this branch of the tort and have developed the incidental use exception. The seminal case construing the New York statute, Booth v. Curtis Publishing Company, 15 A.D.2d 343, 223 N.Y.S.2d 737, aff'd, 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812 (1962), was considered by the trial court. In Booth the plaintiff, Shirley Booth, a television and film star, sued the publisher of Holiday magazine for invasion of her right to privacy due to the use of her photograph in advertisements for the magazine. The photograph originally had illustrated a story in Holiday about a resort at which Booth was staying. The picture was taken with Ms. Booth's knowledge, and without her objection. Several months later the magazine published the same photograph in full-page advertisements of the magazine in Holiday and in other magazines. The court held that republication of this portion of the magazine in advertisements was an incidental use and thus not actionable:

It stands to reason that a publication can best prove its...