UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 11, 1973
THOMAS TAGGART, APPELLANT
WADLEIGH-MAURICE, LTD. AND WARNER BROS. INC.
(D.C. Civil Action No. 842-70) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before: GIBBONS and HUNTER, Circuit Judges.
Opinion OF THE COURT
GIBBONS, Circuit Judge.
This is an appeal from the grant of defendants' motion for summary judgment. The pleadings, affidavits, and depositions on file establish that the appellant Taggart is an employee of Port-O-San, a corporation engaged in the business of furnishing and servicing portable latrines. Taggart was sent by his employer to Bethel, New York in August, 1969 to service such portable latrines, furnished by Port-O-San to the promoters of the Woodstock music festival. While he was servicing the Port-O-San latrines he was, according to his complaint and deposition, diverted from that work and engaged in conversation by agents of defendant Wadleigh-Maurice, Ltd., who were filming the festival, and photographed by sound motion picture. Wadleigh-Maurice, Ltd. during the course of the festival took over 315,000 feet of film (about 120 hours of viewing). From this 315,000 feet of film a feature length "documentary" was assembled, which defendant Warner Bros. Inc. undertook to distribute for commercial viewing. There is no dispute that the festival, the preparation of the film, and its distribution to theatres were all undertaken for commercial profit-making purposes. In those parts of the 315,000 feet of film chosen for inclusion in the "documentary" and thereby given widespread public dissemination is a sequence of approximately two minutes depicting Taggart emptying latrines. Taggart's deposition discloses the circumstances in which he was photographed:
"Q. Basically, at the time you were at Woodstock and you were approached by these two men, had you ever seen them before?
A. No, I never did.
Q. Did you know who they were?
A. No, I have no idea.
Q. How did they engage you in conversation?
A. Well, as I said before, as I was working these two men just came up and started talking to me. What are you doing there, I think was the key sentence. What are you doing there, they said.
Q. You responded to the conversation that ensued?
A. Yes. From there on, I went on about my business, about doing my work. As I was, they spoke to me and asked me what was this, and so forth.
Q. Did you respond to anything they asked you?
A. I responded to the questions they asked me.
Q. You mentioned before that they had cameras.
How big were the cameras they had? Can you show us?
A. They looked like the little square box or something like that.
MR. FARLEY: Indicating about six inches long.
A. Maybe rectangular.
Q. Do you have a home movie camera yourself at home?
A. I have one, yes. It would be not in that category. It would be more like my son's. Thomas has one with a zoom thing on it and stuff like that.
Q. The camera that the man was holding, was that similar to the camera your son has?
A. It would be something like that.
Q. So the cameras were like home movie type cameras?
Q. Did you see any of those large cameras that they used to depict when they show the news?
Q. You didn't see anything like that?
A. No. Whatever it was they had was strapped.
They had them in a strap on their neck.
Q. A strap to hold the camera?
A. Yes, a little bit of a strap.
Q. In the general vicinity through these days you were at the festival, were there many people with cameras of various types?
A. As I recall, I saw different types of cameras.
I wouldn't say there was a wholesale thing with cameras there, you know.
Q. At any time did anyone ask your permission to take the picture?
A. Well, not that they asked me. Nobody came up to me and said, can I take your picture, nothing like that. They just came up and started talking. As they were talking -
Q. Was one talking to you and the other took the picture?
A. It was a combination. I don't know if I'm making myself clear here
Q. In relation to the two men taking your picture, did you know that they were taking it for any public released?
A. No. I had not idea of that."
Taggart contends that the sequence in which he was interrogated while performing his necessary though not necessarily pleasant employment was edited into the "documentary" in such a way as to achieve, at his expense, a comic effect. That this may well have been the intended and actual effect is supported by evidence in the record of the reaction of critics. For example, Kathleen Carroll, the critic, stated "[The] funniest scene shows the latrine attendant proudly demonstrating his job." Craig McGregor, writing in the New York Times, April 19, 1970, stated "... and the man who is the real schizophrenic hero of Woodstock, the Port-O-San man who empties the latrines of the beautiful people and has one son there at Woodstock and another flying a DMZ helicopter in Vietnam." Taggart contends that while he was engaged in his ordinary work he was without warning, and without consent, drawn into a conversation and photographed so that the sequence could be used as a key part of the theme of the "documentary" which was being prepared as a commercial enterprise.
When Taggart learned that he had been included in the commercial film he protested to the defendants, but they refused to delete the scene and proceeded to distribute the film nationwide. As a result, he alleges, he has suffered mental anguish, embarrassment, public ridicule, and invasion of his right to privacy which has detrimentally affected his social and family life and his employment. His deposition supports his contention that such ongoing damaging effects have occurred and are continuing. In this diversity civil action he seeks damages and an injunction against continued distribution of the offending scene. The complaint contains a demand for a jury trial. Fed R. Civ. P. 38(b).
Moving for summary judgment, the defendants placed principal reliance on Man v. Warner Bros. Inc., 317 F.Supp. 50 (S.D.N.Y. 1970). In that case Man, a professional musician, was at Woodstock, where at 4 A.M. he mounted the stage and played "Mess Call" on his Flugelhorn. His performance was photographed by the Wadleigh-Maurice camera crews, and was edited into the documentary without his consent. He brought a diversity action for injunctive relief pursuant to New York's right of privacy statute, N.Y. Civ. Rights Law § 51 (McKinney's 1948), and moved for a preliminary injunction. The defendant made a cross motion for summary judgment, which was granted. The district court recognized that § 51 may not be applied to afford relief either to a public figure or in a matter of public interest in the absence of proof that the defendant published false material with knowledge of its falsity or in reckless disregard of the truth. E.g., Time, Inc. v. Hill, 385 U.S. 374 (1967). In justification for the grant of summary judgment the court pointed out (1) that a professional musician who mounts a stage to give a performance before an audience of 400,000 is a public figure, (2) that in any event the depiction of his performance was merely a factual depiction of his participation in a newsworthy event, and (3) that plaintiff's fortyfive second performance was de minimus.
The transcript of the argument on the motion for summary judgment in this case discloses that the district court appreciated several distinctions between this case and Man. First, Taggart was not a professional musician performing before an audience of 400,000. He was an ordinary working man going about his lowly task. Second, the reaction of the critics suffices to prevent the entry of summary judgment on a de minimus basis. The latrine sequence apparently makes a significant and memorable contribution to the film's overall impact. Thus, if summary judgment is to be sustained, it must be sustained solely because Taggart was a participant in a newsworthy event, and as such, outside the protection of § 51 or some other statutory or common law right of privacy.*fn1 The district judge recognized, however, that it would be one thing to photograph Taggart as he went about his duties at a newsworthy event and to include such a photograph in a factual description of the event, but quite another thing to deliberately draw him out in conversation for the purpose of making him an inadvertent performer in a sequence intended to be exploited for its artistic effect. Recognizing this distinction, the district judge viewed the offending film sequence, and ruled:
"I react, as Mr. Dershowitz's remarks indicate, as the reasonable man might react after seeing the film. I come to a different conclusion after having seen the film than I did from reading just the dialogue. It was not so much a drawing out as to expose him to a substantial participation in the film. The event fits in a perspective of moving from one aspect of this festival to the next. He was not diverted from the work he was doing and brought, so to speak, upon the stage and made somebody separate and apart from the fellow who was working at the time they focused the camera on him. It is a very difficult line to draw.
I believe as you do, as I indicated before the luncheon recess, that there still is an area left where somebody does set out deliberately to make somebody participate in gaining a profit without compensation to him. But there is still an area where that is not protected by the First Amendment cases. I do not think that falls on this side of the line. I feel that summary judgment is indicated and I will grant the motion." (Tr. at 32).
The difficulty with this ruling is that it chooses between Taggart's version, that he was drawn out and made an involuntary performer, and the defendants' version, that he was a mere participant in a newsworthy event. The court did so on the basis of a view of a part of the whole film. The sequence which he viewed undoubtedly was significant evidence in support of the defendants' position. But it was only evidence to be weighed against Taggart's testimony and the reaction of the critics. That weighing process was made before the plaintiff had had the opportunity to present his full case, and it was made by the judge in a case in which a jury trial was demanded. Whether Taggart had been drawn out as a performer rather than merely photographed as a participant in a newsworthy event is on this record at best a mixed question of law and fact. Factual determinations in a § 51 case are for the jury. Garner v. Triangle Publications, Inc., 97 F. Supp. 546 (S.D.N.Y. 1951).
Clearly, then, the record presents disputed fact issues. We can affirm the grant of summary judgment on such a record only if we are prepared to hold that as a matter of law the defendants are entitled to judgment even if Taggart was deliberately drawn out as a performer in a commercial film. Such a ruling would leave very little to § 51 or to any similar statutory or common law right of privacy. It would be predicated upon a more absolutist interpretation of the first amendment than has yet been espoused by a majority of the Supreme Court. But more important, such a ruling, if it is to be made, should be made on a record in which the facts have been fully developed. Only with such a record can the necessary balance between the conflicting rights of personal privacy and of freedom of expression properly be struck. We realize that requiring the defendants to defend in a trial rather than to obtain summary judgment puts them to additional expense, and arguably subjects their first amendment rights, should those rights ultimately be held to prevail over Taggart's right to privacy, to that much extra "chill." In the context of the problem - their commercial exploitation of Taggart's allegedly induced performance - this degree of "chill" seems to us de minimus when compared with the unsatisfactory alternative of ruling on a potentially serious conflict between legally protected rights without a complete record.
The judgment of the district court will be reversed and the case remanded for further proceedings consistent with this opinion.