The opinion of the court was delivered by: FOGEL
This diversity action comes before us after removal from the Court of Common Pleas of Philadelphia County, Pennsylvania. Plaintiff is a citizen of Florida and, according to the original complaint, "a well known singer in the Philadelphia area." Defendant, which publishes a satirical humor magazine that is distributed nationally, is a citizen of New York since it is incorporated under the laws of that state, and has its principal place of business in New York City.
Plaintiff contends that a previously published photograph of her was used by the defendant in a libelous manner, and that such unauthorized use has resulted in damage to her reputation. Defendant, after removing the matter to this Court, has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Also before us is plaintiff's motion to permit the filing of an untimely jury demand.
We will grant summary judgment in favor of defendant; hence, the jury trial issue is moot.
Plaintiff's allegation of libel stems from the use of her photograph in one issue of defendant's magazine in which defendant had published a parody of Playboy magazine,
an internationally-known magazine catering to men. Plaintiff had appeared as one of the monthly "playmates" in that magazine, a regular interviewing feature article that is accompanied by nude and semi-nude photographs of the fortunate woman who is the focus of the magazine's attention that month. This feature is prominently placed at the center of the magazine and includes a larger fold-out photograph or "centerfold" which is a highlight of the publication.
Included in defendant's parody was a mock advertisement, that followed the format used by Playboy magazine when it advertises itself to prospective purchasers; it normally depicts the Playboy reader as a well-to-do gentleman accompanied by two or more beautiful women.
Defendant's parody advertisement depicted a reader who for obvious reasons would not be considered to be one of the "beautiful people" who comprise the "jet set." To spare ourselves the literary voyage OUT which would be required to describe the picture, we have appended a copy to this opinion so the reader may share the euphoria of this unique aesthetic experience without the unwelcome intervention of an interpreter.
The first alternative ground for summary judgment urged by defendant would have us find that the publication was not capable of any defamatory meaning as to plaintiff. Defendant asserts that not only was the reproduction of plaintiff's photograph unidentifiable as plaintiff,
but that the theme of the parody made no statement about plaintiff herself. Rather, defendant insists the parody was intended to make a statement about the readership of Playboy magazine in general.
Whatever the merits of these arguments, it is clear that they involve factual determinations, both as to whether plaintiff is sufficiently distinguishable and also as to what statement, if any, the parody makes about her. Here, however, we are ruling on a summary judgment motion, and Rule 56(c) provides that summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The movant has the burden of proof, Adickes v. S. H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), and the evidence presented must be construed in a light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). The facts asserted (for purposes of ruling on this motion), if supported by affidavits or other evidentiary material, must be regarded as true. First National Bank of Cincinnati v. Pepper, 454 F.2d 626 (2d Cir. 1972); Janek v. Celebrezze, 336 F.2d 828 (3d Cir. 1964).
Plaintiff has filed the affidavit of the manager of a Philadelphia restaurant which employed her as a singer at the time the photograph was published. This affidavit states that defendant's publication adversely reflected on plaintiff's reputation as a lady and as a performing artist. If this evidence is to be construed in a light most favorable to plaintiff, we simply cannot hold as a matter of law that the publication could not be ...