June 2001 Vol. 7 No. 6 ISSN 1087-6219
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In This Issue

• Little League players have privacy claim for publication of team photograph with molester
• Right of publicity bars use of Three Stooges images on T-shirts
• Lack of evidence that landowner's failure to provide adequate security caused injury defeats negligence claim
• Retaliation for reporting employer's wrongdoing to the INS constitutes wrongful termination in violation of public policy
• University professor cannot prove that anti-Semitism was the reason for denial of tenure
• Firefighter may not be discharged for reporting that fellow workers had downloaded pornography
• UPDATES

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Little League players have privacy claim for publication of team photograph with molester

The Riverside division of the Fourth District Court of Appeal has ruled that Little League team members and coaches may proceed with their privacy claims against Sports Illustrated and HBO for publication of a photograph that linked them with a convicted child molester. Their privacy interests outweighed the public interest in the subject of child molestation.

In September 1999, Sports Illustrated published a cover story, “Every Parent's Nightmare,” on incidents of child molestation in youth sports. The article cited Norman Watson as an example, reporting that he had been convicted of molestation for actions during the period when he was a Little League coach and umpire. The article included a team photograph depicting Watson, the members of his team at the time, and his assistant coaches. HBO broadcast a similar report that included the photograph.

Time Warner (publisher of Sports Illustrated and owner of HBO) moved to dismiss the ensuing lawsuit under the anti-SLAPP statute, Code of Civil Procedure section 425.16. The court ruled that the statute applied, but that plaintiffs had shown a prima facie case of invasion of privacy under the public disclosure theory.

There was no question that disclosure of information connecting a person to sexual molestation would offend a reasonable person. The parties disputed whether the photograph was a private fact, and whether it was a matter of legitimate public concern.

Although the team photograph had been taken on a public field, and although it was known that Watson had coached the team, plaintiffs presented evidence that their identities had not previously been revealed. After the article and program appeared, they were teased and harassed at school. Although the subject of molestation was of legitimate public concern, plaintiffs' identities were not. Time Warner could have obscured plaintiffs' faces and protected their identities.

M.G. v. Time Warner, Inc., 2001 WL 577002 (Cal. Ct. App. May 30, 2001).

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Right of publicity bars use of Three Stooges images on T-shirts

The California Supreme Court has ruled that California's statutory right of publicity bars commercial exploitation of celebrity images that do not add significant creative elements. That standard does not infringe on the artist's First Amendment rights.

Gary Saderup made charcoal drawings of the Three Stooges, which he reproduced on T-shirts and in lithographic prints. He did so without the permission of Comedy III, the registered owner of all rights to the Three Stooges comedy act. The Supreme Court affirmed the award to Comedy III of damages, and attorney fees.

Former Civil Code section 990 prohibits the use of a deceased personality's “name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases.” (Section 990 has been renumbered as section 3344.1, and reworded.)

Section 990 applied to Saderup's T-shirts and prints, because he used images of the Three Stooges on his products. However, there was a substantial question as to whether application of section 990 to Saderup infringed his First Amendment rights.

The Court ruled that depictions of celebrities amounting to little more than appropriation of the celebrity's economic value are not protected expression under the First Amendment. The issue is whether the depiction in question contains significant transformative elements.

Protection extends to depictions associated with factual reporting, parody, fictionalized portrayal, lampooning and social criticism. The artist must contribute something more than a trivial variation, and create something recognizably his or her own.

Saderup created skillful, literal and conventional depictions of the Three Stooges. The marketability and economic value of his work derived primarily from the fame and image created by the Three Stooges. Therefore, the First Amendment did not protect his depictions.

Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001).

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Lack of evidence that landowner's failure to provide adequate security caused injury defeats negligence claim

The California Supreme Court has ruled that a victim's inability to identify her attackers defeats her negligence claim against the owner of the apartment complex where she was attacked.

Marianne Saelzler was delivering a package for Federal Express at the Sherwood Apartments in Bellflower, when she was assaulted. As she entered the apartment complex in the midafternoon, she saw two men loitering outside a security gate that was propped open. While walking across the grounds, she saw another man who was already on the premises. After assaulting her, the three fled, and were never apprehended.

Saelzler presented evidence that the owner knew about frequently recurring criminal activity, and failed to adopt appropriate security measures. Although there were security patrols in the evening, there were no daytime security patrols.

Saelzler's evidence did not establish a causative link between the landowner's negligence and her injury. Although her assailants might have been unauthorized trespassers, they could have been tenants of the apartment complex who were authorized to enter the complex. If that were the case, no security measures would have prevented them from being on the property.

Saelzler v. Advanced Group 400, 2001 WL 579734 (Cal. May 31, 2001).

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Retaliation for reporting employer's wrongdoing to the INS constitutes wrongful termination in violation of public policy

The Second District Court of Appeal in Los Angeles has ruled that the Immigration Reform and Control Act of 1986 (IRCA) may support a wrongful termination claim. That federal law does not preempt the state cause of action.

Fu E. Min and Luo Yu Jie were husband and wife, and worked for Liang Tai Knitwear. The husband had his daughter report to the INS that Liang Tai was employing undocumented workers. That report led to a raid at which 40 percent of Liang Tai's work force were arrested.

Less than three months later, Liang Tai laid the plaintiffs off, claiming that there had been a slowdown in business. Liang Tai did not lay anyone else off, and continued to hire more employees.

The court found that IRCA provided the basis for a public policy tort claim. It embodied fundamental and well established policies to protect documented workers from employment discrimination, and from competition by undocumented workers. Terminating an employee for reporting a violation of IRCA constitutes wrongful termination in violation of public policy.

Although Liang Tai argued that IRCA itself preempted the claim, there was no conflict between the act and the public policy tort. There was nothing in the text of the act to suggest that Congress intended to preempt the field. Indeed, certain portions of the act, not applicable here, expressly provided for preemption.

Luo Yu Jie v. Liang Tai Knitwear Co., 2001 WL 577055 (Cal. Ct. App. May 30, 2001).

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University professor cannot prove that anti-Semitism was the reason for denial of tenure

The Riverside division of the Fourth District Court of Appeal has affirmed the grant of summary judgment against a professor who claimed the she did not receive tenure because of religious discrimination.

Dr. Wendy Slatkin taught in the art department at the University of Redlands. In 1995, her department promoted her for tenure, although concerns were expressed about her teaching style and her ability to interact with colleagues. The university president upheld a faculty committee's recommendation to deny tenure, and refused to allow Dr. Slatkin to apply again.

While her tenure application was pending, Dr. Slatkin wrote a letter criticizing a colleague who was also up for tenure. There was evidence that this letter played a role in the denial of tenure to Dr. Slatkin.

The university claimed that it denied tenure for a legitimate reason unrelated to Dr. Slatkin's religion-that she did not deserve tenure.

Dr. Slatkin argued that the reason was false, and therefore pretextual, pointing to the evidence concerning the role of her letter in the denial of tenure. She contended that the evidence proved that the stated reason was false. She also sought to prove bias from the fact that she was unable to attend faculty events that were scheduled on Jewish holidays.

Even if the university's stated reason were not the real reason for denial of tenure, Dr. Slatkin's evidence was not sufficient to show that it was a pretext for discrimination. One cannot draw an inference of discrimination solely from evidence that the defendant lied about the reason for its actions. As long as the real reason was not a discriminatory one, the fact that the proffered reason was false cannot establish a discrimination claim.

Slatkin v. University of Redlands, 88 Cal. App. 4th 1147 (2001).

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Firefighter may not be discharged for reporting that fellow workers had downloaded pornography

The Ninth Circuit has ruled that the First Amendment protects a firefighter who was discharged after reporting that fellow firefighters had downloaded pornography on fire department computers in violation of department policy.

The individuals responsible for the firefighter's discharge claimed that the department's interest in avoiding workplace disruption outweighed the firefighter's free speech interests. The court of appeals disagreed. Some disruption will naturally flow from the exposure of wrongdoing. Defendants did not have any evidence that the firefighter's actions actually harmed the department's legitimate interests.

Hufford v. McEnaney, 2001 WL 536847 (9th Cir. May 22, 2001).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Brennan v. Tremco Inc. (May 2001 issue), now reported at 25 Cal. 4th 310 (2001).

Esberg v. Union Oil Co. of California (March 2001 issue), review granted (May 16, 2001). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

FirstAmerica Automotive, Inc. v. Sweeney (May 2000 issue), review dismissed and cause remanded (Apr. 25, 2001). The decision remains uncitable.

Giebel v. Sylvester (May 2001 issue), now reported at 244 F.3d 1182 (9th Cir. 2001).

Headwaters Forest Defense v. County of Humboldt (May 2000 issue), petition for certiorari filed (Apr. 30, 2001).

In re Aaron Collins (March 2001 issue), time for grant or denial of review extended to June 15, 2001.

Kane v. National Ski Patrol Sys., Inc. (April 2001 issue), petition for review filed (May 15, 2001).

McCoy v. Superior Court (April 2001 issue), petition for review filed (Apr. 6, 2001).

Pichly v. Nortech Waste LLC (April 2001 issue), petition for review filed (Apr. 11, 2001).

Washington Legal Foundation v. Legal Foundation of Washington (February 2001 issue), rehearing en banc granted (May 9, 2001).

Weeks v. Bayer (May 2001 issue), now reported at 246 F.3d 1231 (9th Cir. 2001).

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