Plaintiff contends that this use of her photograph, together with the accompanying comment, was defamatory and libelous in that it depicted her as a tramp and a lady of perverted morals. Plaintiff further alleges in her complaint that defendant libelously published her photograph with reckless disregard for the truth and with malice.
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 construed to be defamatory as to plaintiff. Summary judgment, therefore, could not be granted on this ground.
Defendant's alternative argument is that plaintiff is a public figure, and because of her status, recovery would violate defendant's constitutional rights under the First and Fourteenth Amendments to the Constitution. This argument finds its genesis in the Supreme Court decision of New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), and its progeny. In that case, the Court held that the First Amendment guaranties of freedom of speech and press prohibited a public official from recovering damages for a libelous statement relating to his official conduct in an action brought under state law unless it were shown that the statement was made with actual malice, that is, actual knowledge of the falsity of the statement or wanton disregard for its probable falsity. Later, in Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967), the Court extends this requirement beyond public officials to public figures generally, and defined a public figure as someone who commanded a substantial amount of public interest either by virtue of his or her position alone, or by having thrust himself or herself into the vortex of an important public controversy.
Justice Brennan's plurality opinion in Rosenbloom v. Metromedia, 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971), focused on the public nature of the controversy involved in denying a private plaintiff recovery. However, this view was later rejected by the full Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), which held that the requirement of actual malice did not apply to private individuals even if they were libeled in the reporting of a public issue or concern. In that case the Court defined public figures as:
[Persons who] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. (emphasis added.)