MARSH, District Judge.
This diversity action was removed from the Court of Common Pleas of Allegheny County, Pennsylvania, where a complaint had been filed by John W. Neff, the plaintiff, against Time, Inc., the defendant. The complaint was verified by Neff and alleged that the defendant is the owner of a magazine known as Sports Illustrated sold weekly throughout Pennsylvania; that Neff is a private citizen employed in education; that in its issue of August 5, 1974, the defendant's magazine used Neff's picture without his prior knowledge and consent to illustrate an article entitled "A Strange Kind of Love;" that the photograph shows Neff with the front zipper of his trousers completely opened implying that he is a "crazy, drunken slob," and combined with the title of the article, "a sexual deviate." Neff alleges that the unauthorized publication and circulation of his picture to illustrate the article invaded his right of privacy and subjected him to public ridicule and contempt, injured his personal esteem and the esteem of his profession, reflected on his character, diminished his high standing reputation among his family, friends, neighbors and business associates, destroyed his peace of mind and caused him severe mental and emotional distress to his damage in excess of $5,000, amended to aver in excess of $10,000.
The defendant filed a motion for summary judgment and attached eight affidavits in which the defendant admitted that an authorized employee took Neff's photograph and five others selected it for publication. No counter-affidavits were filed by Neff. There is only one disputed issue of fact: Neff alleges that defendant has used his picture without his prior knowledge and consent; the defendant asserts that his picture was taken for and published in Sports Illustrated with his full knowledge and consent.
The undenied facts contained in affidavits filed by defendant establish beyond peradventure that the picture was taken with Neff's knowledge and with his encouragement; that he knew he was being photographed by a photographer for Sports Illustrated and thereby impliedly consented to its publication. Since Neff did not respond by counter-affidavits, in our opinion the motion should be granted. Rule 56(e) Fed.R.Civ.P.
The affidavits establish that the photograph was taken about 1:00 o'clock P.M. November 25, 1973, while Neff was present on a dugout with a group of fans prior to a professional football game at Cleveland between the Cleveland Browns and the Pittsburgh Steelers.
The photographer was on the field intending to take pictures of the Steeler players as they entered the field from the dugout. Neff and the others were jumping up and down in full view of the fans in the stadium; they were waving Steeler banners and drinking beer; they all seemed to be slightly inebriated. One of the group asked the photographer for whom he was working and was told Sports Illustrated, whereupon the group began to act as if a television camera had been put on them; as the pictures were taken they began to react even more, screaming and howling and imploring the photographer to take more pictures. The more pictures taken of the group, the more they hammed it up. All were aware that the photographer was covering the game for Sports Illustrated. There were no objections; they wanted to be photographed. Thirty pictures were taken of the group on the dugout from different angles.
During the period from July through December, 1973, this photographer took 7,200 pictures pursuant to his assignment to cover the Steelers. As part of his duty he edited the pictures and submitted one hundred to the magazine for selection by a committee of five employees. After several screenings of the thirty pictures of the group on the dugout, the committee selected Neff's picture with his fly open. Although Neff's fly was not open to the point of being revealing, the selection was deliberate and surely in utmost bad taste; subjectively, as to Neff, the published picture could have been embarrassing, humiliating and offensive to his sensibilities.
Without doubt the magazine deliberately exhibited Neff in an embarrassing manner.
It appears that the pictures were taken to illustrate a book being written by one Blount about the Steeler fans, and three excerpts from the book were published in the magazine. Only three pictures, including Neff's, accompanied the article of August 5, 1974. The title to this article "A Strange Kind of Love" could convey to some readers a derogatory connotation. Neff is not mentioned by name in the article; the Steeler-Cleveland game of November 1974, is not mentioned in the article;
Neff's photograph was not selected on the basis of its relationship to that game. The caption appearing adjacent to the photograph reads:
"In the fading autumn Sundays at Three Rivers, the fans joined the players in mean pro dreams."
Three Rivers is the name of the stadium in Pittsburgh. Neff's photograph was selected because "it represented the typical Steeler fan: a rowdy, strong rooter, much behind his team, having a good time at the game," and "it fitted in perfectly with the text of the story." (See affidavit of Richard M. Gangel, Art Director for Sports Illustrated).
It seems to us that art directors and editors should hesitate to deliberately publish a picture which most likely would be offensive and cause embarrassment to the subject when many other pictures of the same variety are available. Notwithstanding, "[the] courts are not concerned with establishing canons of good taste for the press or the public." Aquino v. Bulletin Company, 190 Pa.Super. 528, 154 A.2d 422, 425 (1959).
The right of privacy is firmly established in Pennsylvania despite the fact that its perimeter is not yet clearly defined and its contours remain amorphous. Vogel v. W. T. Grant Company, 458 Pa. 124, 327 A.2d 133 (1974).
From Vogel it seems that Pennsylvania follows the rules promulgated by the Restatement (Second) of Torts §§ 652 B through E (Tent. Draft No. 13, 1967); that invasion of privacy is actionable under any one of four distinct, but coordinate, torts. These are concisely paraphrased in Goldman v. Time, Inc., 336 F. Supp. 133, 136 (N.D.Cal.1971) as follows:
"1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.