Virgil v. Time, Inc.

• Decision Date: 05 December 1975
• Docket Number: No. 72--2851,72--2851
• Citation: 527 F.2d 1122
• Parties: 1 Media L. Rep. 1835 Michael S. VIRGIL, aka Mike Virgil, Plaintiff-Appellee, v. TIME, INC., a New York Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1122

527 F.2d 1122

1 Media L. Rep. 1835

Michael S. VIRGIL, aka Mike Virgil, Plaintiff-Appellee, v. TIME, INC., a New York Corporation, Defendant-Appellant.

No. 72--2851.

United States Court of Appeals Ninth Circuit.

Dec. 5, 1975.

Harold R. Medina, Jr. (argued), Cravath, Swaine & Moore, New York City, for defendant-appellant.

Gerald R. Schmelzer, San Diego, Cal., for plaintiff-appellee.

OPINION

Before MERRILL and CHOY, Circuit Judges, and EAST, ^* District Judge.

MERRILL, Circuit Judge:

This suit was brought in California state courts by appellee, Virgil, complaining of a violation of his right of privacy. It was removed to federal court by appellant, Time, Incorporated, on grounds of diversity. This interlocutory appeal, taken pursuant to 28 U.S.C. § 1292(b), is from an order of the district court denying the motion of appellant for a summary judgment.

The facts are stated by the district court in its memorandum decision as follows:

'The complaint is based upon an article that appeared in the February 22, 1971, issue of Sports Illustrated magazine (owned by appellant), entitled 'The Closest Thing to Being Born.' The article concerned the sport of body surfing as practiced at the 'Wedge,' a public beach near Newport Beach, California, reputed to be the world's most dangerous site for body surfing. The article attempted to describe and explore the character of the unique breed of man who enjoys meeting the extreme hazards of body surfing at the Wedge. Plaintiff is well known as a constant frequenter of the Wedge and is acknowledged by body surfers there to be the most daredevil of them all. He was extensively interviewed by Thomas Curry Kirkpatrick, the author of the article, and much of the information obtained from these interviews was used in the Sports Illustrated story. Photographs showing plaintiff surfing and lying on the public beach were taken and used to illustrate the article.

Plaintiff admits that he willingly gave interviews to Kirkpatrick and that he knew that his name and activities as a body surfer might be used in connection with a forthcoming article in Sports Illustrated. But plaintiff now alleges that he 'revoked all consent' upon learning that the article was not confined solely to testimonials to his undoubted physical prowess.

The article complained of was written by Kirkpatrick, a Sports Illustrated staff writer. In the summer of 1969 he received authorization from the senior editor of the magazine to do a story about the Wedge and the men who surf there. He was supplied with names and information about prominent body surfers, including the plaintiff, by the Beverly Hills bureau of Time, Inc. He began researching the article that summer, and contacted many surfers at the Wedge. Through these sources Kirkpatrick heard about the plaintiff and his daredevil attitude toward body surfing and life in general. He returned to the Newport Beach area the following summer to complete his research. It was during this period that Kirkpatrick first met the plaintiff and conducted several interviews with him.

The photographs complained of were taken by a local freelance photographer who was commissioned by the defendants to photograph the Wedge and the body surfers. The photographer arranged, through one of the surfers, to have a group of surfers, including the plaintiff, come to the Wedge to have their pictures taken in connection with the article.

Before publication the Kirkpatrick article was checked and researched by another Sports Illustrated staff member. For that purpose the checker telephoned the plaintiff's home and verified some of the information with the plaintiff's wife. The checker also talked to the plaintiff concerning the article, at which point for the first time, the plaintiff indicated his desire not to be mentioned in the article at all, and that he wanted to stop the story. While not disputing the truth of the article or the accuracy of the statements about him which it contained, and while admitting that he had known that his picture was being taken, the plaintiff indicated that he thought the article was going to be limited to his prominence as a surfer at the Wedge, and that he did not know that it would contain references to some rather bizarre incidents in his life that were not directly related to surfing.

In spite of the plaintiff's expressed opposition to the article, the article was published following its approval by the editorial staff and legal counsel for Sports Illustrated. In its published form, the article is eleven pages long and contains approximately 7,000 words. The article refers by name to many people who surf at the Wedge, and concludes in the last two pages with an account of the plaintiff's daredevil feats at the Wedge and a series of anecdotes about him that emphasize the psychological characteristics which presumably explain the reckless disregard for his own safety which his surfing demonstrates.

Along with the photographs of the plaintiff, he complains of these references to incidents in his private, or non-surfing, life.' ¹

Respecting the applicable state law, the district court stated:

'California has adopted Dean Prosser's analysis of the tort of invasion of privacy. Kapellas v. Kofman, 1 C.3d 20, 35 n. 16, 459 P.2d 912, 81 Cal.Rptr. 360 (1969). According to that analysis, four separate torts are included within the broader designation of invasion of privacy.

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;

4. Appropriation, for the defendant's advantage, of plaintiff's name or likeness.

Prosser, Law of Torts (4th ed., 1971) 804--14. See also Prosser, Privacy, 48 Cal.L.Rev. 383, 389 (1960).' ²

The district court concluded that of these four separate torts the one alleged by plaintiff was that of public disclosure of embarrassing private facts. We agree. ³

The most recent definition of this tort and discussion of its elements is that to be found in The American Law Institute Restatement (Second) of Torts (Tentative Draft No. 21, 1975). Section 652D gives a new name to the tort, 'Publicity Given to Private Life.' The black letter reads:

'One who gives publicity to a matter concerning the private life of another is subject to liability to the other for unreasonable invasion of his privacy, if the matter publicized is of a kind which

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.' ⁴

With respect to 'publicity' comment b reads in part: ⁵

"Publicity,' as it is used in this Section, differs from 'publication,' as that term is used in § 577 in connection with liability for defamation. 'Publication,' in that sense, is a word of art, which includes any communication by the defendant to a third person. 'Publicity,' on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written, or by any other means. It is one of communication which reaches, or is sure to reach the public.

Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person, or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.'

With respect to 'private life,' comment c reads in part:

'The rule stated in this Section applies only to publicity given to matters concerning the private, as distinguished from the public, life of the individual. There is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public. * * *

Likewise there is no liability for giving further publicity to what the plaintiff himself leaves open to the public eye.'

It is argued that by voluntary disclosure of the facts to Kirkpatrick, knowing that he proposed to write an article including information about appellant, appellant had himself rendered public the facts disclosed. We cannot agree.

It is not the manner in which information has been obtained that determines whether it is public or private. Here it is undisputed that the information was obtained without commission of a tort and in a manner wholly unobjectionable. However, that it not determinative as to this particular tort. The offense with which we are here involved is not the intrusion by means of which information is obtained (see note 3(B), supra); it is the publicizing of that which is private in character. The question, then, is whether the information disclosed was public rather than private--whether it was generally known and, if not, whether the disclosure by appellant can be said to have been to the public at large.

Talking freely to someone is not in itself, under comment c, making public the substance of the talk. There is an obvious and substantial difference between the disclosure of private facts to an individual--a disclosure that is selective and based on a judgment as to whether knowledge by that person would be felt to be objectionable--and the disclosure of the same facts to the public at large. The former, as the Restatement recognizes, does not constitute publicizing or public communication (see comment b as quoted supra) and according does not destroy the private character of the facts...