Opinion
1-18-1952
GILL et al. v. HEARST PUB. CO., Inc. et al. L. A. 22038. *
Shacknove & Goldman, Los Angeles (Ben F. Goldman, Jr., Los Angeles, of counsel), for appellants. Flint & MacKay and Arch R. Tuthill, all of Los Angeles, for respondents.
GILL et al.
v.
HEARST PUB. CO., Inc. et al.
L. A. 22038. *
Jan. 18, 1952.
Rehearing Granted Feb. 14, 1952.
Shacknove & Goldman, Los Angeles (Ben F. Goldman, Jr., Los Angeles, of counsel), for appellants.
Flint & MacKay and Arch R. Tuthill, all of Los Angeles, for respondents.
Loeb & Loeb, Los Angeles, amicus curiae for respondents.
CARTER, Justice.
As in Gill v. Curtis Publishing Company, Cal.2d, 239 P.2d 630, plaintiffs commenced an action for damages for an alleged violation of their right of privacy. Defendants' demurrer having been sustained without leave to amend, a judgment was entered from which the appeal was taken.
It is charged in the amended complaint that defendants, Hearst Plblishing Company and Hearst Magazines, corporations, publish and sell for profit a monthly magazine, Harper's Bazaar, and employ Henri Cartier-Bresson as a photographer, who in the course of his employment photographed, without their consent, plaintiffs at their place of business in the Farmers' Market in Los Angeles. The likeness was published in the October, 1947, issue of the magazine, along with photographs of two other couples in amorous poses, the one of plaintiffs being the largest, occupying a full page. The picture is a larger size replica of the same photograph involved in Gill v. Curtis Publishing Company, supra. Accompanying the likeness was a short article entitled 'And So the World Goes Round,' stating that these couples 'immortalized in a moment of tenderness' affirm the poets conviction that the world would not revolve without love, despite the 'vulgarization' of it by some; that ballads still may be written about everyday people in love. Thereafter, the picture was republished by Curtis Publishing Company in May, 1949, issue of the Ladies Home Journal, together with the article 'Love' discussed in Gill v. Curtis Publishing Company, supra, with the 'knowledge, permission and consent' of defendants and 'credit' for the publication was given to and required by defendants. The likeness depicts plaintiffs in an 'uncomplimentary' pose. The publication of the photograph invaded plaintiffs' right of privacy and caused them humiliation and annoyance to their damage in the sum of $25,000.
It is conceded by plaintiffs that the publication of the article in the Harper's Bazaar did not reflect adversely upon them and any action they might have for such publication is barred by the statute of limitations. We do not have presented to us, therefore, whether the publication in the Harper's Bazaar is actionable. Their claimed right rests upon the consent of defendants to the publication by the Curtis Publishing Company in the Ladies Home Journal. In this connection defendants assert that while there is an allegation that such publication was made with their consent, there is no allegation that they also consented to the use of the article 'Love' in connection with the photograph, and thus the only basis left for plaintiffs' action is the publication of the likeness in the Ladies Home Journal without any accompanying article or caption under the picture.
With reference to the consent to the publication in the Ladies Home Journal, it is alleged that the photograph was published with the knowledge, permission and consent of defendants, and a copy of the picture, together with the article 'Love,' is attached as an exhibit. There is no direct allegation that the article was published with the picture with defendants' consent. The complaint in other parts deals with the photograph alone: It is alleged that the likeness depicted plaintiffs in a derogatory fashion; that by publishing the picture defendants invaded plaintiffs' right of privacy; and that by reason of the acts of defendants they were damaged.
Plaintiffs urge, however, that as the demurrer was sustained without leave to amend, the judgment should be reversed for the claimed deficiency in the complaint with reference to the article could be easily corrected by amendment. There is some basis for the inference from the incorporation of the article as an exhibit that it was an inseparable part of the photograph. The allegation of consent is broad and it cannot be said that it necessarily negates a consent to publishing the article. The objection to the complaint is thus somewhat in the nature of a claim of uncertainty. Clearly the defect is capable of being cured by amendment. The rule applies, therefore, that there was an abuse of discretion in sustaining the demurrer without leave to amend. Wilk v. Vencill, 30 Cal.2d 104, 180 P.2d 351; 21 Cal.Jur. 119, et seq.
The demurrer so sustained was to the first amended complaint. The original complaint was predicated upon the publication in Harper's Bazaar and a demurrer on the ground of the statute of limitations, among others, was sustained with leave to amend. The leave to amend was taken and the amended complaint, as above discussed, was filed, which related the action to the publication of the article in the Ladies Home Journal. The demurrer to the latter was sustained without leave to amend, according to the court's memorandum opinion, on the ground that even with the article there was no invasion of the right of privacy as had been held by the same court in Gill v. Curtis Publishing Company, supra. Under those circumstances, there was no waiver by plaintiffs or estoppel. It is true that they stressed in their argument on the last demurrer that the likeness alone violated their right of privacy rather than its use in connection with the essay 'love,' but it is apparent the ruling by the trial court would have been the same, for even with the article the court considered that a cause of action had not been stated. Hence authorities such as Alberts v. American Casualty Co., 88 Cal.App.2d 891, 200 P.2d 37; Gordon v. Kifer, 26 Cal.App.2d 252, 79 P.2d 164, and 2 Cal.Jur., 844-852, are not in point. Defendants' position would not be altered to their injury.
It follows from the foregoing that inasmuch as there would be liability for the publication of the picture in connection with the article in the Ladies Home Journal, Gill v. Curtis Publishing Company, supra, the court abused its discretion in sustaining the demurrer without leave to amend.
We believe, moreover, that plaintiffs have stated a cause of action for an infringement on their right of privacy by the publication without their consent of the photograph standing alone. Members of opposite sexes engaging in amorous demonstrations should be protected from the broadcast of that most intimate relation. Nothing could be more intrinsically personal or more within the area of a person's private affairs than expressions of the emotions and feelings existing between such persons. That should be true even though the display is in a public place. They may be unthinking of the stares of those in the vicinity and thus unaffected by them, but that is far from consenting to the photographing of their likeness and publishing it in a magazine. Of course, the public interest discussed in Gill v. Curtis Publishing Company, supra, is to be recokoned with. We fail, however, to see any substantial public interest in the bare publication of a picture of a couple in an amorous pose. Authorities relied upon by defendants such as Themo v. New England Newspaper Pub. Co., 306 Mass. 54, 27 N.E.2d 753, are not in point, for they were concerned with the publication of a picture of one person alone, in normal everyday poses, not of persons in the pose here discussed. Nor can we say, as a matter of law, that picturing persons in such poses would not outrage or injure the feelings of an ordinary person.
It cannot be inferred from the allegations in the complaint that plaintiffs have waived or consented to a violation of their right of privacy, Gill v. Curtis Publishing Company, supra, or that the photograph in question depicts an indiscriminate street scene to which the right may not extend.
Judgment reversed.
TRAYNOR, SCHAUER and SPENCE, JJ., concur. --------------- * Subsequent opinion 253 P.2d 441.