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CLARK v. CELEB PUBL.

December 2, 1981

Lynda CLARK, Plaintiff,
v.
CELEB PUBLISHING, INC., Nick Melillo, and Does 1 Through 25, Inclusive, Defendants



The opinion of the court was delivered by: MOTLEY

This is a diversity action brought by plaintiff Lynda Clark against defendant Celeb Publishing, Inc. (Celeb) for the unauthorized publication of certain photographs of plaintiff in Celeb Magazine. Plaintiff seeks one million dollars in compensatory and punitive damages, respectively, for the unauthorized use of her photographs and for the invasion of her privacy. A default judgment was entered against Celeb on July 2, 1981. The only remaining issue before this court is the amount of damages plaintiff is entitled to recover.

Facts

 Plaintiff is a self-employed professional model and actress. Her photographs have appeared in a broad range of advertisements, as well as in Forum and Penthouse Magazines. Celeb is a New York Corporation which publishes Celeb Magazine. Celeb Magazine can best be characterized as a low quality and very explicit pornographic magazine.

 In March, 1981, plaintiff became aware that certain photographs of her were being used on the cover of and in advertisements for the April and May, 1981, issues of Celeb Magazine. *fn1" At no time had plaintiff consented to the publication of these photographs by Celeb. Plaintiff, through her attorney, immediately demanded that Celeb cease and desist from the distribution of all issues of Celeb Magazine containing plaintiff's photographs (Exhibit 3). At the time of the demand, the April issue of Celeb, with plaintiff's photograph appearing on the cover and in two advertisements for Celeb Magazine inside, was already on the newsstands. Celeb refused to withdraw the April issue from the newsstands and, ignoring the demand of plaintiff's attorney, placed on the newsstands the May & June issues of the magazine. These issues contained a photograph of plaintiff getting undressed with the caption "Take off your pants and subscribe to Celeb" in an advertisement for subscriptions to the magazine. The April issue had contained the identical subscription advertisement, as well as a photograph of plaintiff on the cover and in the back of the magazine.

 Plaintiff claims to have suffered sleeplessness, loss of appetite, nervousness and a lack of concentration as a result of the publication of these photographs in Celeb Magazine. She is currently undergoing medical treatment in connection with the ongoing health problems stemming from this unpleasant episode.

 Plaintiff also claims that her appearance in Celeb Magazine has caused her to be ridiculed by her friends and former advertising clients. She asserts that the use of her photographs in the magazine has damaged her ability to receive work and appear in more "serious" films, advertisements and theatrical works. Specifically, she claims that Penthouse Magazine and several of the companies that regularly advertise in it want nothing more to do with her due to her appearance in Celeb Magazine.

 Discussion

 As this is a diversity action, this court must first determine which law would be applied by a New York court in the instant case. New York, in tort cases, applies "governmental interest analysis," which looks for the forum with the greatest interest in having its policies applied and the most significant relationship with the facts and the parties. Delbrueck & Co. v. Manufacturers Hanover Trust Co., 464 F. Supp. 989, 993 (S.D.N.Y.), aff'd 609 F.2d 1047 (2d Cir. 1979). This interest analysis applies even where the sole issue for determination is the measure of damages a plaintiff is entitled to receive. Gordon v. Eastern Air Lines, Inc., 391 F. Supp. 31 (S.D.N.Y.1975).

 Applying this analysis to the instant case, it is evident that California, rather than New York, law should be applied. California, the State of plaintiff's residency, has a greater interest in compensating its residents for injuries of the type here alleged than New York may have in compensating nonresidents injured within their respective borders. Further, in a case of this nature, the state of a plaintiff's residency is normally the state of greatest injury. Here, the injuries allegedly suffered as a result of the wrongful publication all occurred in California. For these reasons, this court will apply California's law on damages.

 The starting point in a determination of the measure of plaintiff's damages is California Civil Code ยง 3333, which provides that "(f)or the breach of an obligation not arising from contract, the measure of damages ... is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." Here, plaintiff's proximately caused damages can be subdivided into three inter-related yet distinct categories: the emotional suffering caused by Celeb's publication of her photographs; the money not paid her for the use of her photographs; and the economic injury suffered as a result of the appearance of plaintiff's photographs in Celeb Magazine. Additionally, as discussed below, plaintiff is entitled to recover punitive damages for Celeb's intentional disregard of her rights.

 Under California law, an invasion of an individual's right of privacy by the appropriation, for another's advantage, of an individual's name or likeness is an actionable tort. Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) (misappropriation of race car driver's photograph in nationally televised advertisement for cigarettes). Indeed, "the exploitation of another's personality for commercial purposes constitutes one of the most flagrant and common means of invasion of privacy." Fairfield v. American Photocopy Equipment Co., 138 Cal.App.2d 82, 291 P.2d 194, 197 (1955).

 In Fairfield, an action for the unauthorized use of plaintiff's name in advertisements for the defendant's photocopy machine, the court of appeals explained that the gist of a cause of action in a privacy case is a direct wrong of a personal nature resulting in injury to feelings, without regard to any effect the publication may have on the business or pecuniary interests of the individual in the community. "The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by bodily injury." Id. 291 P.2d at 197. See also Stilson v. Reader's Digest Association, 28 Cal.App.3d 270, 104 Cal.Rptr. 581, 582 (1972), cert. denied 411 U.S. 952, 93 S. Ct. 1928, 36 L. Ed. 2d 414 (1973).

 With respect to the damages recoverable in such an action, the court in Fairfield held that a plaintiff is entitled to compensation for injury to his peace of mind and to his feelings, notwithstanding that in a case of this character, there can be no direct evidence of the amount of damages sustained:

 
One whose right of privacy is unlawfully invaded is entitled to recover substantial damages, although the only damages suffered by him resulted from mental anguish. In such an action, the damages to be recovered are those which the law authorizes in cases of torts of that character, and if the law authorizes a recovery for wounded feelings in other torts of a similar nature, ...

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