(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.
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?
Q. Did you know who they were?
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 ...