Donahue v. Warner Bros. Pictures, Inc.

BRATTON, Circuit Judge.

Section 103-4 — 8, Utah Code Annotated 1943, provides among other things that any one who uses for advertising purposes or for purposes of trade the name, portrait, or picture of a person, if such person is living, without first having obtained the written consent of such person, or, if such person is dead, without the written consent of his heirs or personal representatives, shall be guilty of a misdemeanor. And section 103-4 — 9 provides in presently material part that any living person, or the heirs or personal representatives of any deceased person, whose name, portrait, or picture is used within the state for advertising purposes or for purposes of trade, without written consent being first obtained as provided in the preceding section, may maintain an action against such person so using his name, portrait, or picture to prevent and restrain the use thereof; and may in the same action reT cover damages for any injuries sustained by reason of such use, and if the defendant shall have knowingly used such person’s name, portrait, or picture in such manner as is declared to be unlawful, the jury or court, if tried without a jury, may in its discretion award exemplary damages.

Alice M. Donahue, Alma Donahue, Barbara Donahue, and Constance Donahue instituted in the state court of Utah this action against Warner Brothers Pictures, Inc., Warner Brothers Pictures Distributing Corporation, Intermountain Theatres, Inc., Arch E. Overman, and C. E. Overman. It was alleged in the complaint that the defendants Warner Brothers Pictures, Inc., and Warners Brothers Pictures Distributing Corporation were corporations organized under the laws of New York; that the defendant Intermountain Theatres, Inc., was a corporation organized under the laws of Delaware; and that the defendants Arch E. Overman and C. E. Overman were citizens of Utah. It was further alleged that plaintiff Alice M. Donahue was the widow of Jack Donahue, deceased; that the other plaintiffs were the adult daughters of Donahue; and that plaintiffs were the sole and only heirs of Donahue. It was further alleged that defendant Warner Brothers Pictures, Inc., was engaged in the business of making moving pictures; that defendant Warner Brothers Pictures Distributing Corporation, a wholly owned subsidiary of defendant Warner Brothers Pictures, Inc., was engaged in the business of distributing moving pictures made by defendant Warner Brothers Pictures, Inc.; that defendant Warner Brothers Pictures, Inc., made a moving picture entitled “Look for the Silver Lining,” purposely depicting the career and using the name of Donahue as the leading male star therein; that the portrayal of Donahue in such picture was in part true to life hut in many parts wholly untrue and without any factual basis whatever; that such picture was made without the consent or permission of Donahue, or of his legal representatives, or of plaintiffs; that the defendants had shown and exhibited the picture in theatres in Utah and throughout the United States; that such showings and exhibitions were for purposes of trade; that as the result, plaintiffs had been greatly vexed, annoyed, humiliated, and caused mental and physical suffering; and that defendants knowingly and wilfully refused to discontinue showing and exhibiting the picture, and unless restrained would continue to show and exhibit it. The prayer was for actual damages in the sum of $200,-000, exemplary damages in the sum of $150,000, and equitable relief in the form of an injunction to restrain the further showing or exhibition of the picture.

Defendants Warner Brothers Pictures Distributing Corporation and Intermountain Theatres, Inc., caused the action to be removed to the United States Court for Utah. The ground of removal was that the complaint set forth a separate and independent claim or cause of action as to each removing defendant which would be removable if sued upon alone; and that such separate and independent claim or cause of action was joined with a claim or cause of action against defendants Arch E. Over-man and C. E. Overman which was not removable.

After the cause had been removed to the United States Court, plaintiffs filed an amended complaint. In addition to realleging substantially all of the allegations contained in the original complaint, it alleged that Donahue was a dancer, singer, comedian, and entertainer; that he appeared in vaudeville but not in moving pictures or night clubs; that in addition to his stage performances, he wrote several articles which were published in the Saturday Evening Post, and in collaboration with another person, he wrote a show. It further alleged that the portrayal of Donahue in the moving picture Look for the Silver Lining was in part true to life, but in most parts- was wholly untrue and without any factual basis whatever; that such picture truly depicted the life of Donahue insofar as it represented that he was a dancer and danced with Marilyn Miller in the shows “Sunny” and “Rosalie”; and that in all other respects it was without any factual basis. And .following that general allegation, it alleged certain particulars in which the moving picture was without any factual basis. In addition, it alleged in paragraph 9 thereof that plaintiff Alice M. Donahue, in collaboration with one Fay Pulsifer, wrote and prepared a manuscript portraying the true life of Donahue, but that by reason of the showing and exhibition of the picture Look for the Silver Lining, plaintiffs had been prevented from selling the manuscript. Again, the prayer was for actual damages in the sum of $200,000, exemplary damages in the sum of $150,000, and an injunction to prevent defendants from further showing or exhibiting the picture.

Defendants Warner Brothers Pictures Distributing Corporation, Intermountain Theatres, Inc., Arch E. Overman, and C. E. Overman, filed two motions. One was to strike paragraph 9 of the amended complaint on the ground that the allegations contained therein were immaterial and irrelevant to any purported cause of action stated or to any relief requested in the amended complaint; and the other was for summary judgment on the ground that it appeared from the pleadings, depositions, admissions on file, together with the affidavits attached to the motion, that there existed no genuine issue as to any material fact and that each defendant was entitled to judgment as a matter of law. Paragraph nine of the amended complaint was stricken; summary judgment was entered dismissing the action with prejudice; and plaintiffs appealed.

The question of removability presents itself. It is provided by statute — 28 U.S.C. § 1441(c) — that where a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction. The claim or cause of action pleaded in the complaint in this case was one in tort. The tort as alleged was the wrongful showing of the moving picture with the name and portrayal of Donahue therein. That was the wrong charged for which relief was sought. According to the allegations in the complaint, all of the defendants acted together in exhibiting or showing the picture in theatres in Utah and elsewhere in the United States which constituted a wrongful invasion of the rights of plaintiffs. If as pleaded all the defendants joined in such wrong, there was no separate and independent claim or cause of action pleaded against the removing defendants. And the cause was not subject to removal on the ground set forth in the petition for removal. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 19 A.L.R.2d 738; Willoughby v. Sinclair Oil & Gas Co., 10 Cir., 188 F.2d 902; Snow v. Powell, 10 Cir., 189 F.2d 172.

While the cause was not subject to removal on the ground of a separate and independent claim or cause of action against the removing defendants, complete diversity of citizenship existed between all plaintiffs on one hand and all defendants on the other; two of the defendants were citizens of Utah; and more than three thousand dollars, exclusive of interest and costs, was involved. Therefore the action was one falling within the original jurisdiction of the United States Court for Utah, and plaintiffs could have instituted it in that court in the first instance. After removal, plaintiffs did not challenge the removability of the cause either by motion to remand or otherwise. Instead, they filed an amended complaint in which both legal and equitable relief was affirmatively sought. Parties cannot by consent confer upon a court jurisdiction of the subject matter of an action which it would not have possessed without such consent. Neither can voluntary action of parties in the nature of waiver confer jurisdiction of an action if the court would not have had jurisdiction of the subject matter without the waiver. But where a suit of which the United States Court may entertain original jurisdiction is instituted in the state court and the defendant obtains its removal even though removal is wholly unauthorized, and plaintiff acquiesces in such removal by seeking relief from the United States Court, that court acquires jurisdiction of the subject matter. Lopata v. Handler, 10 Cir., 121 F.2d 938; Cf. American Fire & Casualty Co. v. Finn, supra. The case being one of which the United States Court for Utah could have entertained original jurisdiction, and plaintiffs having acquiesced in the removal of it, the United States Court had jurisdiction; and its remand now is not required.

The action was one for legal and equitable relief for the wrongful violation of the right of privacy. The right of privacy may be defined in general language as the right of the ordinary person to enjoy life without his name or life being exploited for commercial purposes by the use of his name, or the publication or portrayal of his picture, or career, on the moving picture screen, in the press, in periodicals, in handbills, in circulars, in catalogues, or in other like manner unless his consent thereto be first obtained. The right is sometimes referred to as the right to be let alone. The principles together with their limitations or qualifications having appropriate application to the right of privacy were presented with erudite ability in an article written by Warren and Brandéis and published in 1890, 4 Harvard Law Review 190. One of the early cases in American jurisprudence dealing with the right was Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286, decided a few years after publication of the article to which reference has just been made. There a nephew of a deceased aunt, on behalf of himself and other immediate surviving relatives of the deceased, sought to enjoin the exhibition of a statue of the deceased without the consent of plaintiff and other surviving relatives. The court held that whatever right of privacy the aunt had terminated at her death and did not pass to her heirs or relatives; that plaintiff and other surviving relatives did not represent any right of privacy which she had during her lifetime; and that plaintiff and other surviving relatives were not entitled to injunctive relief on the ground that the exhibition of the statue would constitute an invasion of their personal feelings or sentiments concerning the memory of the deceased. In Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478, plaintiff was a young woman whose photograph or likeness had been appropriated for advertising purposes by a milling company. She sought damages for past wrongful use of the photograph or likeness and also an injunction to restrain future use of it. It was said in the opinion of the court that the legislature could very well provide that no one should be permitted for his own selfish purpose to use the name or picture of another for advertising purposes without his consent, but that the legislature had not done so. And it was held that in the absence of legislation to that effect, plaintiff was without remedy in the courts. At its next session after that case was decided, and primarily in response to the suggestion contained in the opinion of the court, the legislature of New York enacted sections 50 and 51 of the Civil Rights Law of that state, making penal the use of one’s name, picture, or portrait for advertising purposes, or for purposes of trade, without his written consent being obtained, and creating a civil right to damages for past wrong of that character as well as injunctive relief to prevent future wrong. For an authentic statement of that historic fact as a contributing factor to the enactment of the statute, see Rhodes v. Sperry & Hutchinson Co., 193 N.Y. 223, 85 N.E. 1097, 34 L.R.A.,N.S., 1143, affirmed 220 U. S. 502, 31 S.Ct. 490, 55 L.Ed. 561.

The legislature of Utah in the enactment of sections 103-4 — 8 and 103 — 4 — 9, supra, followed without deviation or departure the statute in New York in respect to the exploitation for commercial purposes, or for purposes of trade, the name, picture, or portrait of a living person without his written consent being first obtained. But the legislature of Utah did not stop there. In section 103-4 — 8 it also made penal the use for advertising purposes, or purposes of trade, the name, portrait, or picture of a deceased person, without the written consent of his heirs or personal representatives; and in section 103-4-9 it also provided with blueprinted clarity that the heirs or personal representatives of a deceased person shall be entitled to recover damages for injuries sustained by the wrongful use for advertising purposes, or for purposes of trade, of the name, portrait, or picture of the deceased person, and shall be entitled to restrain further or continued exploitation of that kind. By section 103-4 — 9, the legislature created the right of a living person to recover damages for such wrongful use of his name, portrait, or picture, and to enjoin further exploitation thereof; and in addition, it created a like right in the heirs or personal representatives of a deceased person whose name, portrait, or picture has been or is being used in that manner without first obtaining the consent in writing of the heirs or personal representatives. The statute created an independent right and provided a remedy for its enforcement. The purpose of the statute was to grant protection against the appropriation for commercial purposes of one’s name, picture, or personality. And it should be given a liberal rather than a narrow construction. It should be construed liberally in the light of the legislative intent and purpose, not in a narrow manner which would tend to proscribe achievement of the desired legislative objective. Sarat Lahiri v. Daily Mirror, 162 Misc. 776; 295 N.Y.S. 382; Jackson v. Consumer Publications, 169 Misc. 1022, 10 N.Y.S.2d 691; Cf. Castle v. Delta Land & Water Co., 58 Utah 137, 197 P. 584.

A statute undertaking to forbid publication in the press or elsewhere of matters essentially educational or informative in character, or undertaking to prohibit the use of matters of that kind on the motion picture screen, would immediately suggest its own fatal infirmity. And similarly, a statute essaying to prevent the publication of current news, or the recounting or portrayal of actual events of public interest as is conventionally done in a conventional newspaper or in a conventional newsreel on the motion picture screen, would be promptly challenged in respect to its validity on recognized grounds of long established principles of law. But this statute does not undertake to forbid any, every, and all use of the name, picture, or personality of an individual without written consent being first obtained. It is expressly confined to the appropriation of the name, picture, or personality of an individual for advertising purposes, or for purposes of trade. It is explicitly limited to exploitation of that kind. It does not undertake to forbid publication in the press or elsewhere of matters essentially educational or informative, even though the name or picture of an individual is used incidentally in connection therewith. Neither does it undertake to prevent the dissemination of news in which the public has an interest in the press, on the motion picture screen in the form of a newsreel, or otherwise, even though the name or picture of an individual is used incidentally in that connection. Binns v. Vitagraph Co. of America, 210 N.Y. 51, 103 N.E. 1108, L.R.A.1915C, 839; Humiston v. Universal Film Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752; Krieger v. Popular Publications, 167 Misc. 5, 3 N.Y.S.2d 480.

Fairly construed, the amended complaint alleged in -substance that with minor exceptions the moving picture in question was untrue; that it was essentially a product of fiction; and that as a part thereof, the name, picture, and personality of Donahue were used for purposes of trade, without the consent of plaintiffs being first obtained in the manner required by the statute. While by answer many of the material allegations contained in the amended complaint were denied, the motion for summary judgment admitted all matters well pleaded in such complaint. That was the posture of the case at the time the summary judgment was entered. The manufacture, distribution, and exhibition of a motion picture of the kind pleaded in the amended complaint, based primarily upon fiction or the imaginative, and designed primarily to entertain and amuse an audience desiring entertainment and willing to pay therefor, does not constitute the publication of information and educational matters, or the dissemination of news, or the recounting or portrayal of actual events of public interest in the form of a newsreel, as distinguished from commercial activities for gain or profit, within the intent and meaning of the statute. Binns v. Vitagraph Co. of America, supra; Humiston v. Universal Film Manufacturing >Co., supra; Krieger v. Popular Publications, supra. According to the amended complaint, Donahue had been dead many years at the time of the institution of the action. And of course another person necessarily portrayed him in the moving picture. But his name was used and the moving picture purported to portray ihis personality and career. It was not alleged in the amended complaint that use was made of an actual photograph or portrait of Donahue. But that was unnecessary, as a picture within the meaning of the statute includes any representation of the person. Binns v. Vitagraph Co. of America, supra. To hold that the use of the name and the representation of the personality of Donahue in the manner alleged in the amended complaint fails to come within the purview of the statute would narrow the statute by a tortured construction not in harmony with its plain legislative intent and purpose.

Endeavoring to sustain the summary judgment, appellees present the argument that Donahue was a public figure and that the statute does not forbid the use of the name or picture of such a figure without consent first being obtained. As previously indicated, it was averred in the amended complaint that Donahue was a dancer, singer, outstanding comedian, and foremost entertainer; that he starred and co-starred in productions in New York; that he did not appear in motion pictures or night clubs; that he wrote certain articles; and that in collaboration with another person, he wrote the script for a show. The statute was not intended to protect in undiminished degree the privacy of a public figure. By becoming a public figure, one may reliquish in part the right of privacy which would be his under other circumstances. Sidis v. F-R Publishing Corp., 2 Cir., 113 F.2d 806, 138 A.L.R. 15, certiorari denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462. The right may be waived completely or only in part. It may be waived for one purpose, and still be asserted for another. But the existence of the waiver carries with it the right to invade the right of privacy of the individual only to the extent legitimately necessary and proper in dealing with the matter which gave rise to the waiver. The question whether a person is a public figure and therefore has waived in part his right of privacy may rest upon various and variable facts and circumstances. And no rule of thumb has been evolved for its easy solution in all cases. Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68, 69 L. R.A. 101. We find ourselves unable to share the view that Donahue’s accomplishments as a dancer, singer, comedian, entertainer, and writer, made him such a public figure that his name, picture, or career could be dramatized in a motion picture photoplay based primarily upon fiction and the picture exhibited in Utah for commercial purposes, without violating the right of privacy which the statute was intended to protect. Koussevitzky v. Allen, Towne & Heath, 188 Mise. 479, 68 N.Y.S.2d 779.

In a further effort to uphold the summary judgment, appellees contend in substance that if the statute be construed as broad enough to prohibit the portrayal of a deceased public figure it would constitute an unreasonable restraint upon the guaranteed freedoms of speech and press. It is argued in support of the contention that dealing fictionally with deceased public figures is an important part of our culture, and the right to do so is one which is necessary for the survival of our culture; that in modern times the portraying of deceased public figures fictionally is one of the most common forms of artistic creation in the novel, drama, and motion picture; that motion pictures fictionalizing historical characters and events are common media of communicating ideas; and that to interpret the statute in such manner as to prevent the fictionalizing of a deceased public figure would constitute a restraint upon the freedom of that mode of expression, in violation of the constitutional guaranty of freedom of speech and of press. If the statute undertook to restrict or forbid the publication of matters educational or informative or strictly biographical in character, or the dissemination of news in the form of a newsreel or otherwise, it would be open to challenge on the ground of objectionable restraint upon the freedom of speech and press. But it does nothing of the kind. It is content to forbid the appropriation of the name, picture, or personality of an individual for commercial purposes, or for purposes of trade, as distinguished from the publication of matters educational or informative or purely biographical in kind, or the dissemination of news in the form of a newsreel or otherwise. And the constitutional guaranty of free speech and free press in its full sweep does not undertake to create an inviolate asylum for unbridled appropriation or exploitation of the name, picture, or personality of a deceased public figure for purely commercial purposes, or solely for purposes of trade, with the state powerless to enact appropriate forbidding or remedial legislation.

In a still further effort to support the summary judgment appellees present the contention that the right of appellants to recover is governed by the law of California; that under the law of that state whatever right of privacy one has terminates upon his death; and that therefore recovery cannot be had in this case. Appellants reside in California. The motion picture was exhibited at a sneak preview in that state at which appellants were present prior to the time it was first exhibited in Utah. And under the law of California, the heirs of a deceased person cannot maintain in the courts of that state an action of this kind for the violation of the right of privacy of their deceased kinsman. Metier v. Los Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491. But this was essentially a statutory action, with its source and genesis in section 103-4 — 9, supra. It was well within the competence of Utah to forbid commercial exploitation in that state of the kind alleged in the amended complaint and to provide a remedy in its courts, without regard to whether like exploitation had previously occurred in another state in which no like remedy was afforded. Utah Was not powerless to prohibit appropriation in that state of the name or picture of a person for purposes of trade, and to provide a remedy in its courts for a wrong of that kind, even though similar appropriation had previously taken place in another state where no remedy was available. And section 103-4— 9 will be searched in vain for any legislative intent or purpose to exclude from its remedial reach instances of exploitation in which the seal of privacy had already been broken in another state where no relief could be had under domestic law. The statute does not provide that the heirs of a deceased relative may maintain an action of this kind if the law of the state where the seal of privacy was first broken creates or recognizes such right of action and provides a remedy for its enforcement. It does not contain any limitation or exception of that kind. It is couched in broad general language and indicates clearly a studied purpose on the part of the legislature to create the right in heirs of a deceased person to maintain an action of this kind for the violation of the right of privacy occurring in that state, without regard to the law of another state. The initial exhibition of the motion picture at the sneak preview in California and appellants seeing it there before it was shown in Utah did not as a matter of law bar recovery under the statute of Utah for the alleged wrongful exploitation of the name, picture, and personality of the deceased in Utah.

The question remaining for consideration is whether paragraph nine of the amended complaint was improvidently stricken. The action was essentially one in tort predicated upon the unlawful showing of the motion picture, and it was expressly alleged that by reason of such exhibition of the picture plaintiffs had been vexed, annoyed, humiliated, and caused great mental and physical suffering to their injury and damage. That was the gravamen of the action. And the allegations contained in paragraph nine respecting the inability of plaintiffs to sell a manuscript of the life of Donahuq did not bear any relevancy or materiality to such claim or cause of action. We do not explore or decide the question whether a claim or cause of action for being prevented from selling the manuscript could be asserted in a different manner or in a different proceeding. It is enough to say that the action of the court in striking paragraph nine from the amended complaint in its then present form did not constitute error.

The judgment is reversed and the cause remanded.