Opinion
No. 99-1402-WEB
September 3, 2002
MEMORANDUM AND ORDER
Plaintiff Bobby Dry, a former employee of the defendant Boeing Company, asserts a claim against Boeing for invasion of privacy through misappropriation. Jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332. Plaintiff claims that Boeing, without his permission, published a picture containing his likeness in an advertisement in the Wichita Eagle newspaper. The matter is now before the court on defendant Boeing's Motion for Summary Judgment. For the reasons set forth herein, the court concludes that the motion for summary judgment should be denied.
I. Facts.
Plaintiff has not objected to the statement of facts in defendant's motion for summary judgment, so the court accepts that statement for purposes of summary judgment. See D.Kan.R. 56.1(a).
Plaintiff Bobby Dry was employed at Boeing from 1986 until April 21, 1998, when he was terminated. The stated reason for Dry's termination was excessive absenteeism.
Several years prior to Dry's termination, a photograph was taken at work of Dry, along with two co-employees, by a photographer employed by Boeing.
The photograph itself is a fair likeness of Dry and it was not, in itself, embarrassing to Dry.
At the time the photograph was taken, Dry does not remember objecting to the taking of the photo nor does he remember placing any restrictions or limitations on its use or publication by Boeing.
For approximately a year and a half or two years, the photograph was displayed on a bulletin board at Boeing.
On September 2, 1996, the photograph of Dry was published as part of a Labor Day advertisement by Boeing in the Eagle, but Dry testified he does not remember if he was aware of this publication of his photo or not.
While Dry was employed at Boeing, either this photograph or another photograph of Dry taken at work at Boeing was published in a small glossy booklet that Dry believes was circulated to Boeing plants nationwide.
At no time while Dry was employed at Boeing did Dry ever ask anyone at Boeing not to use his photograph, nor did he place any restrictions or limitations on its use or publication by Boeing.
On April 23, 1999, one year after his termination at Boeing, the photograph of Dry and his co-workers was published in a Boeing advertisement in a special supplement of the Eagle publicizing the Wichita Area Technical College " Showcase '99."
Dry has never been paid to lend his name, likeness or reputation to any kind of commercial activity.
Beyond his family, personal friends, and some former Boeing co-workers, neither Dry's name nor his likeness are familiar to the general public.
Boeing itself did not design the layout or select the photographs that appeared in the Boeing advertisement for " Showcase '99." At Boeing's direction, the photographs were selected by representatives of the Eagle to best support the Wichita Area Technical College and were selected from pictures on file at the Eagle that were generally illustrative of Boeing employees working in technical positions.
II. Standards for Summary Judgment.
The standards and procedures for summary judgment are well established and will not be fully repeated here. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In essence, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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. Id. A disputed fact is "material" if it might affect the outcome of the suit under the governing law, and a dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. Discussion.
A. Misappropriation under Kansas Law. The law of Kansas governs in this diversity action. See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Kansas law has long recognized a tort for invasion of privacy arising from misappropriation of one's likeness. In Kunz v. Allen, 102 Kan. 883, 172 P. 532 (1918), the Kansas Supreme Court recognized a claim where the defendant filmed the plaintiff shopping in a store and later used her image in an advertisement for the store without the knowledge or consent of the plaintiff. Id. In a later case that is very similar to the instant case, Johnson v. Boeing Airplane Company, 175 Kan. 275, 262 P.2d 808 (1953), an employee of Boeing sued after his image appeared in a Boeing advertisement. The Supreme Court again recognized the validity of a claim for invasion of privacy, but held that the plaintiff in that case was precluded from recovering because (among other reasons) he had consented to the publication of his photograph. In Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975), the Supreme Court adopted the standards of the Restatement of the Law on Torts concerning invasion of privacy claims. The Restatement provides in part that one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy. Restatement (Second) of Torts § 652C (1977)).
B. Arguments on Summary Judgment. Boeing argues it is entitled to summary judgment for three reasons: (1) because its use of plaintiff's likeness was not commercial in nature; (2) because no reasonable person would suffer outrage or mental distress over the appropriation in this case; and (3) because plaintiff's conduct amounted to an implied consent to Boeing's use of his photo.
Boeing first contends that its alleged appropriation is not actionable because its use of plaintiff's likeness was not commercial in nature. Citing Haskell v. Stauffer Communications, Inc., 26 Kan. App. 2d 541, 990 P.2d 163 (1999). It notes that under Haskell and the Restatement the mere incidental use of a person's likeness is not sufficient to support a claim: "[N]or is the value of [a plaintiff's] likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity." Id., 990 P.2d at 166 (quoting Restatement (Second) of Torts § 652C comment d (1977)). The court concludes that this principle does not entitle Boeing to summary judgment. Although the extent to which the advertisement in this case exploited plaintiff's image is debatable, the court cannot say as a matter of law that the depiction of plaintiff as a Boeing worker engaged in a technical project, as part of a commercial advertisement for Boeing, was so insignificant as to amount to an incidental use. Although a person does not have a right to object merely because his likeness is brought before the public, the right to privacy is invaded "when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with . . . the likeness. . . ." Restatement (Second) of Torts § 652C comment d. The right to privacy does not extend only to celebrities or public figures; it applies to ordinary individuals as well. A reasonable jury could find that plaintiff's likeness had some commercial value and that Boeing exploited that value for its benefit.
Boeing's second argument is that no reasonable person would suffer outrage or mental distress over the appropriation in this case because the photograph of the plaintiff was not offensive and was in fact complementary. Boeing argues this case is no different from Johnson v. Boeing Airplane Company except for the "minor factual difference" that the plaintiff in this case was no longer employed by Boeing when the advertisement was published. The court concludes that this factual difference is sufficient to distinguish this case from Johnson. Although the facts surrounding plaintiff's termination are not fully set forth in the briefs, the fact that plaintiff's employment was terminated by Boeing under apparently less than friendly circumstances is sufficient to raise a genuine issue of fact as to whether the appropriation of his image after his termination was such that it could cause mental distress in a reasonable person.
Boeing's final argument is that under the rule of Johnson v. Boeing Airplane Company, supra, plaintiff's conduct amounted to an implied consent to let Boeing publish his photo in the April 23, 1999, advertisement. Although Johnson bears a marked similarity to the instant case, the fact that Mr. Dry was terminated from Boeing prior to the use of his likeness in 1999 makes this case materially different from Johnson. Even assuming that plaintiff's failure to object to the use of his photo before his termination amounted to an implied consent — as it did in Johnson — the circumstances of Mr. Dry's termination raise a genuine issue of fact as to whether the consent was limited to the term of his employment and whether the circumstances of the termination were such that a reasonable person would understand that the prior implied consent was limited or revoked. Cf. Name Appropriation by Employer or Former Employer, 52 A.L.R.4th 156 (1987) (Depending upon the facts and circumstances, some courts have found that consent to use an employee's name is limited by the duration of the employee's consent or by the employment relationship); Colgate-Palmolive Co. v. Tullos, 219 F.2d 617 (5th Cir. 1955) (appellee did not waive her right to determine for herself when her picture should be displayed after the termination of her employment; having dispensed with the appellee's services, the appellant had no more right to exhibit her picture for commercial purposes than it did to require her to appear in person); Restatement (Second) of Torts § 892A comment d ("The terms and reasonable implications of the consent given determine whether it includes the particular conduct. * * * Unless the understanding is made clear by express language, these questions of interpretation are normally for the trier of fact to determine." * * * "Even when no restriction is specified the reasonable interpretation of the consent may limit it to acts at a reasonable time and place, or those reasonable in other respects."). In sum, the court concludes that the defendant is not entitled to summary judgment on plaintiff's claim for invasion of privacy.
IV. Conclusion.
Defendant Boeing Company's Motion for Summary Judgment (Doc. 24) is DENIED. IT IS SO ORDERED this 3rd Day of September, 2002, at Wichita, Ks.