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September 3, 1986


The opinion of the court was delivered by: ACKERMAN

 This is an action for invasion of privacy and misappropriation of likeness. Plaintiff originally filed this suit in the Superior Court of New Jersey, Law Division, Middlesex County. Defendants removed the action to this court pursuant to 28 U.S.C. § 1441. Jurisdiction in this court is based on diversity of citizenship.

 Defendants have now brought a motion for summary judgment. Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is not to be granted unless, after all reasonable inferences are drawn in favor of the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Sames v. Gable, 732 F.2d 49, 52 (3d Cir. 1984). Although there is a serious dispute here as to the application of the law, there is essentially no dispute as to the following facts. Plaintiff, Edward Tellado, served as a Private E-2 First Class in the United States Army during the Vietnam War. In 1966, during a search and destroy mission in Ta Nin, Vietnam, a photograph was taken of Mr. Tellado with a few other infantrymen. They were coming off of a forced march and had just moments ago been through a fierce thirty-minute battle. They were still under sniper fire from the enemy and were waiting for an evacuation helicopter. Six soldiers had been killed and twelve wounded in the battle. The parties agree that the photograph accurately reflects plaintiff's sense of anguish, agony and fear at the time.

 The photograph was taken by Henri Huet, a staff photographer for the Associated Press. Huet was later killed in Vietnam. Defendant World-Wide Photos, Inc. acquired the original of the photograph at some point after it was taken. The right to use the photograph was obtained from World-Wide by defendant Time-Life Books and, before that, by Boston Publishing, Inc., originator and publisher of the Time-Life series The Vietnam Experience. No release was ever obtained from Mr. Tellado by anyone at anytime for the use of this photograph and no payment has ever been made to him for such use.

 The Vietnam Experience is a multi-volume series of illustrated books concerning the war in Vietnam that is presently being distributed serially by defendant Time-Life. The photograph at issue was first used by Boston Publishing Company in an insert in the first volume of the series, entitled Setting the Stage, published in 1981. This insert was a letter from the publisher describing the series and the continuing importance of the history of the Vietnam War. Enclosed with the publisher's letter was a survey form seeking readers' responses to the first volume and ideas for subsequent volumes. The photograph of Mr. Tellado appeared on the last page of the publisher's letter with the following caption:

THE FACES OF BATTLE. U.S. infantrymen, some of them wounded, some dazed, and most of them frightened, await helicopter evacuation moments after a fierce fire fight. During the battle, six were killed and twelve wounded.

 In 1982 Boston Publishing issued another brochure, describing The Vietnam Experience series, emphasizing its extensive photographic portrayal of the Vietnam War. Photographs from the first six volumes of the series were reproduced. Mr. Tellado's photograph appeared on the back page of the brochure with a caption similar to that in the first publication.

 The photograph subsequently appeared in various promotional materials issued by Time-Life in connection with The Vietnam Experience series such as brochures advertising the series, an advertisement in "TV-Cable Week" and on the outside envelope of a brochure advertising the series. Five million copies of the brochure were sent out of the kind that Mr. Tellado found in the garbage can.

 It was this brochure envelope that first brought the use of the photograph to Mr. Tellado's attention. Mr. Tellado works as a janitor for Merck and Company in New Jersey. He was emptying out a trash can and as he looked into it he saw a picture of himself in the bottom of the garbage can. Mr. Tellado had no question in his mind that the picture was of him. Indeed, no one disputes that fact. The picture was not crumpled in anyway and the envelope had never been opened. Mr. Tellado is in the center right of the photo with rosary beads around his neck that his mother gave him. When Mr. Tellado saw the picture he states that he panicked. He picked the picture up and put it down a few times. In describing his feelings in his deposition, he stated:

I was kind of freaked out. Here I look in a trash can, almost 20 years later and I see myself there. Here's something that I've been trying to avoid for the past 19 years and all of a sudden I find myself back under the same situation.

 Tellado dep. at 24-25.

 Mr. Tellado tacked the picture up in the janitor's closet, but did not bring it to anybody's attention at work for two or three weeks. He told his wife about the picture six or seven days later and brought it home to show her at her request. Mr. Tellado contends that he had a great fear of re-experiencing the emotional trauma of his experiences in Vietnam and had avoided anything that might remind him of those experiences. He had experienced periods of depression and flashbacks after he returned home from the war and contends that the photograph brought on a fear of returning to that state of mind.

 Defendant contends the use of this photograph of a newsworthy event cannot form the basis for a misappropriation claim because the photograph was not used for the purposes of taking advantage of plaintiff's reputation, prestige or other value associated with him, for purposes of publicity. Defendant also contends that there is no basis for plaintiff's invasion of privacy claim because the photograph was taken in a clearly public setting and publication cannot be construed as offensive to a reasonable person.

 As this is a diversity action, under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), this court is to make an informed prediction as to how the New Jersey Supreme Court would rule on this issue if this case were before it. See Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981). Although there are numerous New Jersey decisions concerning misappropriation of likeness and invasion of privacy claims, the New Jersey Supreme Court has not specifically addressed a situation such as the instant one. The Third Circuit has stated:

In the absence of an authoritative pronouncement from the state's highest court, the task of a federal tribunal is to predict how that court would rule. To make this prognostication, we are not inflexibly confined by dicta or by lower state court decisions, although we should look to such statements as indicia of how the state's highest court might decide. See McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 662 (3d Cir. 1980). The policies underlying the applicable legal doctrines, the doctrinal trends indicated by these policies, and the decisions of other courts may also inform our analysis. In addition, we may consult treatises, the Restatement, and the works of scholarly commentators.

 Pennsylvania Glass at 1167.

 Although early court decisions refer only generally to the right of privacy, more recent caselaw, and more importantly here, New Jersey law now treats each kind of invasion of privacy differently and has adopted the distinctions and definitions of the Second Restatement of Torts. As summarized in Bisbee v. John C. Conover Agency, 186 N.J.Super 335, 339, 452 A.2d 689 (App. Div. 1982):

The Restatement of Torts lists the four areas of invasion of privacy as generally including (a) unreasonable intrusion, (b) appropriation of the other's name or likeness, (c) unreasonable publicity given to one's private life and (d) publicity that normally places the other in a false light before the public. 3 Restatement, Torts 2d, § 562A at 376 (1977).

 I will, therefore, maintain these distinctions in discussing plaintiff's claim. Plaintiff's complaint refers in Count 1 to misappropriation of likeness and in Count 2 only generally to "invasion of privacy." I can only conclude that Count 2 refers to the three areas of the invasion of privacy tort other than misappropriation of likeness as otherwise it would be dismissed as superfluous. I accordingly turn first to those other areas before discussing Count 1's misappropriation claim. If plaintiff's "invasion of privacy" claim in Count 2 refers to the tort of unreasonable intrusion, defendants' motion for summary judgment is granted as to that claim.

 The Restatement (Second) of Torts, Section 652B (1977), defines the tort of unreasonable intrusion as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

 Defendants did not intrude upon the solitude or seclusion of the plaintiff. The photograph that was published depicts plaintiff and other soldiers during a combat mission in Vietnam--a clearly public setting.

 In Bisbee, which is discussed in more detail later, the court rejected an unreasonable intrusion claim because the facts and photograph publicized were public.

 This aspect of plaintiff's claim is accordingly dismissed. Should plaintiff be stating a claim for unreasonable publicity given to one's private life, it would fail for the same reason.

 While plaintiff does not appear to be making a claim for false light publicity, it is not entirely clear what he intends by including a second count for invasion of privacy, so I will rule on any possible false light claim also.

 In order for liability to be imposed for publicity that places another in a false light, the Restatement requires that:

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and [that]
(b) the actor had knowledge of and acted in reckless disregard as to the falsity of the publicized matter.

 It is essential, moreover, that "the matter publicized be untrue, although it is not necessary for the matter to be defamatory." Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761, 766 (D.N.J.1981).

 There is no allegation here that anything about the photograph is untrue or that plaintiff has been placed in a false light. If anything, the stark reality of what the photograph portrays is what has been most disturbing to plaintiff. Plaintiff has stated in his deposition that the photograph is an accurate portrayal of him. Defendants' motion for summary judgment as to Count 2 of the complaint is granted as there are no facts present which would support plaintiff's claim under any theory other than that stated in Count 1.

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