The opinion of the court was delivered by: LORD, III
In this diversity action, plaintiff claims damages for libel and invasion of privacy.
The defendants have moved for summary judgment on all counts. I heard oral argument on October 4, 1982. I have concluded that defendants have sustained their burden of demonstrating that as to the libel and false light claims, there is no genuine issue of material fact. I will deny defendants' motion as to the publicity given to private life claim.
I. Statement of the Facts
At issue in this case is the publication by The Village Voice of a nude photograph taken by Donald Herron of Christina McCabe in a bathtub. The photograph appeared in the April 9-15, 1980 issue of The Voice as part of a feature called "Centerfold." This particular week Centerfold focused on the work of Mr. Herron. It presented a series of photographs consisting of individuals in bathtubs, most of whom were partially or totally nude.
The photograph was taken by Mr. Herron in San Francisco sometime in 1977 or the first half of 1978.
At the time, Herron was working on development of his series of portraits.
Herron and McCabe had not met before the day he photographed her. According to McCabe's deposition, she met him at Fey Wey Studio, a San Francisco art gallery. Fey Wey was owned by Robert Opel and Anthony Rogers. Opel was a friend of McCabe's. She went to the gallery to visit him and, upon arrival, was introduced to Herron.
McCabe agreed to have her picture taken by Herron. After the photograph was taken, she asked Herron what his intentions were. He said that "he wanted to publish a book." (McCabe deposition, 51). She said nothing in response to his statement.
There was no further contact between Herron and McCabe until after initiation of this lawsuit. Early in 1980, Herron contacted the Centerfold editor of The Voice, Guy Trebay. Herron asked if The Voice might be interested in publishing his work. A meeting was arranged where Trebay could examine Herron's photographs. Trebay told him he liked the photographs and asked if Herron had releases. (Trebay deposition, 21). Herron said he did.
About a month later, Herron dropped off a set of photographs and releases at Trebay's office. The releases were form model release agreements. One was labeled, in print across the top, "Christina McCabe -- Model." On the line labeled "Model Signature" the letters "Crys" were written and crossed out, followed by the correct spelling of the plaintiff's name. The creator of the signature is unknown, but it is conceded that it was neither Herron nor plaintiff. Where the model's address is to be provided, "1287 Howard Street, San Francisco" had been entered. This is the address of Fey Wey Studio.
Trebay selected the photographs he was interested in, including the plaintiff's, and attempted to pair the releases provided with the pictures he had chosen. He found the release that corresponded to the photograph of McCabe. While he recalled seeing a signature on the line designated "Model Signature," he did not recall reading that signature. (Trebay deposition, 29-30). In addition, he did not recall seeing letters that were crossed out on the fact of the model release for Christina McCabe. (Trebay deposition, 40). McCabe's release was not specifically discussed with any other members of The Voice staff before publication.
In April, 1980, the Centerfold feature of Donald Herron's twenty-three photographs, including that of Christina McCabe, appeared in The Village Voice. Underneath her photograph was a caption reading, "Christina McCabe -- Model." McCabe learned of the publication about a week after it was on the market. She filed this action April 10, 1981 claiming $7,000,000 in damages for libel and invasion of privacy. Plaintiff's invasion of privacy claim has two distinct components: publicity placing a ...