Motschenbacher v. R.J. Reynolds Tobacco Company - Mark Roesler

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cars depicted, transforming plaintiff's number '11' into '71'; they 'attached' a wing-like device known as a'spoiler' to plaintiff's car; they added the word 'Winston,' the name of their product, to that spoiler andremoved advertisements for other products from the spoilers of other cars. However, they made no otherchanges, and the white pinstriping, the oval medallion, and the red color of plaintiff's car were retained.They then made a motion picture from the altered photograph, adding a series of comic strip-type 'balloons'containing written messages of an advertising nature; one such balloon message, appearing to emanatefrom plaintiff, was: 'Did you know that Winston tastes good, like a cigarette should?' They also added asound track consisting in part of voices coordinated with, and echoing, the written messages. Thecommercial was subsequently broadcast nationally on network television and in color.Several of plaintiff's affiants who had seen the commercial on television had immediately recognizedplaintiff's car and had inferred that it was sponsored by Winston cigarettes.On these facts the district court, characterizing plaintiff's action as one 'for damages for invasion ofprivacy,' granted summary judgment for defendants, finding as a matter of law that'. . . the driver of car No. 71 in the commercial (which was plaintiff's car No. 11 prior to said change ofnumber and design) is anonymous; that is, (a) the person who is driving said car is unrecognizable andunidentified, and (b) a reasonable inference could not be drawn that he is, or could reasonably beunderstood to be plaintiff, *823 Lothar <strong>Motschenbacher</strong>, or any other driver or person.' [FN2]FN2. The district court concluded:'3. Not having been identified in the commercial either visually, aurally, explicitly, or inferentially,plaintiff's action fails, and the Court is authorized to grant defendants' Motion for SummaryJudgment.''Summary judgment of course is proper only where there is no genuine issue of any material fact or whereviewing the evidence . . . in the light most favorable to the adverse party, the movant is clearly entitled toprevail as a matter of law.' See Stansifer v. Chrysler Motors Corporation, 487 F.2d 59, 63 (9th Cir. 1973),and cases cited therein.[1][2] Since the Winston commercial was broadcast on television throughout the United States, our initialinquiry in determining the correct legal standards to be applied on the motion for summary judgment isdirected at the proper choice of law. In a diversity case, a federal court must follow the substantive law ofthe state in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Thisincludes the conflict of laws rules of that state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496,61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Moore v. Greene, 431 F.2d 584, 589-590 (9th Cir. 1970).In this case, we believe that California courts, under Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432P.2d 727 (1967), would apply California local [FN3] law. [FN4] By the same taken, noting the novelty ofthe factual situation presented and recognizing that the parties have each cited general case law in supportof their respective positions, we think that California courts would not hesitate to consider relevantprecedent from other jurisdictions in determining California local law.FN3. We employ the definition of 'local law' set forth in Restatement (Second) of Conflict ofLaws, § 4 (1971), as follows:'[T]he 'local law' of a state is the body of standards, principles and rules, exclusive of its rules ofConflict of Laws, which the courts of that state apply in the decision of controversies broughtbefore them.'FN4. First, it appears that California, the state of plaintiff's residency, has a greater interest incompensating its residents for injuries of the type here alleged than other jurisdictions may have in
compensating foreigners so injured within their respective borders. Second, in cases of this type,the state of plaintiff's residency is normally the state of the greatest injury. Third, California, asthe forum, has an interest in convenience and presumably can most easily ascertain its own law.And fourth, California's Uniform Single Publication Act (Civ.Code § 3425.3) effectivelyadvances the universal interest in avoiding a multiplicity of suits and assisting the orderlyadministration of justice.[3] In California, as in the vast majority of jurisdictions, [FN5] the invasion of an individual's right ofprivacy is an actionable tort. Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931). [FN6] In 1960 *824Dean Prosser, drawing on over 300 cases, observed that the tort is actually a complex of four separate anddistinct torts, each of which is decided under an 'invasion of privacy' label. See Prosser, Privacy, 48Calif.L.Rev. 383 (1960); Prosser, Law of Torts 804 (4th ed. 1971). Prosser's four categories are: (1)intrusion upon the plaintiff's seclusion or solitude; (2) public disclosure of private facts; (3) placing theplaintiff in a false light in the public eye; and (4) appropriation, for defendant's advantage, of plaintiff'sname or likeness. [FN7] The case before us is of the fourth variety-- commercial appropriation. [FN8]FN5. Compare Time, Inc. v. Hill, 385 U.S. 374, 383 n. 7, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967)(citing Prosser, Law of Torts 831-832 (3d ed. 1964), for the proposition that 'a 'right of privacy'has been recognized at common law in 30 States plus the District of Columbia and by statute in 4States'), with Prosser, Law of Torts 804 (4th ed. 1971) (observing that 'the right of privacy is bythis time recognized and accepted in all but a very few jurisdictions' and noting at 804 n. 16 sixjurisdictions recently added to the list.)FN6. See also Briscoe v. Reader's Digest Association, Inc. 4 Cal.3d 529, 93 Cal.Rptr. 866, 483P.2d 34 (1971); Carmel-By-The-Sea v. Young, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225 (1970);Kapellas v. Kofman, 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912 (1969); Gill v. Hearst PublishingCo., 40 Cal.2d 224, 253 P.2d 441 (1953); Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876(1952); Gill v. Curtis Publishing Co., 38 Cal.2d 273, 239 P.2d 630 (1952); Stilson v. Reader'sDigest Association, Inc., 28 Cal.App.3d 270, 104 Cal.Rptr. 581 (1972); Williams v. Weisser, 273Cal.App.2d 726, 78 Cal.Rptr. 542 (1969); Grimes v. Carter, 241 Cal.App.2d 694, 50 Cal.Rptr. 808(1966); Leavy v. Cooney, 214 Cal.App.2d 496, 29 Cal.Rptr. 580 (1963); Carlisle v. FawcettPublications, 201 Cal.App.2d 733, 20 Cal.Rptr. 405 (1962); Werner v. Times-Mirror Co., 193Cal.App.2d 111, 14 Cal.Rptr. 208 (1961); James v. Screen Gems, Inc., 174 Cal.App.2d 650, 344P.2d 799 (1959); Kelly v. Johnson Publishing Co., 160 Cal.App.2d 718, 325 P.2d 659 (1958);Smith v. National Broadcasting Co., 138 Cal.App.2d 807, 292 P.2d 600 (1956); Fairfield v.American Photocopy Equip. Co., 138 Cal.App.2d 82, 291 P.2d 194 (1955); 158 Cal.App.2d 53,322 P.2d 93 (1958); Stryker v. Republic Pictures Corp., 108 Cal.App.2d 191, 238 P.2d 670(1951); Cohen v. Marx, 94 Cal.App.2d 704, 211 P.2d 320 (1949); Kerby v. Hal Roach Studios, 53Cal.App.2d 207, 127 P.2d 577 (1942); Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 95P.2d 491 (1939).FN7. The California Supreme Court recognized Prosser's four-pronged system of classification inKapellas v. Kofman, 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912 (1969), at 36 n. 16, though itthere suggested that a 'false light' cause of action in California is equivalent to, and meets the samerequirements of, a libel claim. See also Briscoe v. Reader's Digest Association, Inc., 4 Cal.3d 529,543, 93 Cal.Rptr. 866, 483 P.2d 34 (1971).FN8. In Fairfield v. American Photocopy Equip. Co., 138 Cal.App.2d 82, 291 P.2d 194 (1955),the California Court of Appeal observed at 86, 291 P.2d at 197:'The exploitation of another's personality for commercial purposes constitutes one of the mostflagrant and common means of invasion of privacy.'
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Motschenbacher v. R.J. Reynolds Tobacco Company - Mark Roesler

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