Staruski v. Continental Telephone Co.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-474


Cynthia Staruski                             Supreme Court

      v.                                     On Appeal from
                                             Windsor Superior Court
Continental Telephone Co. of Vermont
                                             May Term, 1990


Matthew I. Katz, J.

Parker & Ankuda, P.C., Springfield, for plaintiff-appellant

Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for defendant-
  appellee


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     MORSE, J.  This tort case presents an issue of first impression in this
state: May a person recover for wrongful invasion of privacy when her
employer, without her consent, runs an advertisement in publicly circulated
newspapers displaying her name and photograph and a text, falsely attributed
to her, that praises the employer?  The trial court ruled that she may not.
We disagree, and accordingly reverse and remand.
     In August 1985, Continental Telephone Company of Vermont (Contel) ran a
series of advertisements in Vermont newspapers featuring certain of its
employees.  Plaintiff, a sales and service representative at Contel's
office in Springfield, Vermont, was featured in one such ad.  The ad
included a photograph of the plaintiff smiling broadly, the words "Hi, I'm
Cindy Staruski" in large letters beside the photograph, and an accompanying
text, attributed with quotation marks to Ms. Staruski, describing her job
responsibilities and opining that "it has been exciting and reassuring to
know that Continental continues to expand its equipment and services to meet
its obligation to serve you." (FN1)  Upset by Contel's publication of her name
and likeness in this manner, plaintiff sued in tort for invasion of
privacy. (FN2)
     Three issues of relevance to this appeal were in dispute at trial.
First, contrary to plaintiff's testimony, Contel maintained that it had her
express or implied consent to publish the ad.  The trial judge, however,
ruled that plaintiff had not given consent, noting the absence of any
evidence that she saw the ad before publication or knew that it would
contain text attributed to her, and instructed the jury accordingly.
Second, the nature of the tort of invasion of privacy was disputed.
Concluding that publication of plaintiff's photograph, name and job
description, even without her consent, was permissible -- that is, not
tortious as a matter of law -- the trial court limited her evidence on
damages to those flowing from publication of the final paragraph of the
advertisement (referred to at trial as the "testimonial" section).  As to
that paragraph, the court instructed the jury that its publication without
consent was tortious as a matter of law.  Third, the question whether a
corporation may be liable for punitive damages in these circumstances was
contested.  The court allowed the jury to decide whether to award punitive
damages.
     The jury reached a verdict for plaintiff of $1,000 in compensatory
damages and $3,500 in punitive damages.  The trial judge, however, granted
defendant's motion for a judgment notwithstanding the verdict (JNOV), on the
ground that plaintiff, not being famous, was unable to prove that her name
and identity had commercial value.  Plaintiff appeals from the JNOV and
additionally claims error in the court's ruling limiting the scope of
evidence on damages to those flowing only from the "testimonial" portion of
the ad.  Defendant in turn maintains that the JNOV is warranted and, in the
event the JNOV is reversed by this Court, also contests the punitive damages
and argues for a new trial on the grounds that the question of consent
should have gone to the jury and that the court erred in ruling that the
"testimonial" section constituted an invasion of privacy as a matter of
law. (FN3)
     We reverse the JNOV, find that both parties were prejudiced by trial
errors, and accordingly remand for a new trial.
                                    I.
     "Invasion of privacy" is a term applied to several distinct types of
harm.  See generally W. Keeton, Prosser and Keeton on Torts { 117 (5th ed.
1984) [hereinafter Prosser and Keeton].  This lawsuit concerns one of these,
"the appropriation, for the defendant's benefit or advantages, of the
plaintiff's name or likeness."  Id. at 851.  The incidental use of a
person's name is not of course grounds for liability.  "It is only when [the
defendant] makes use of the name to pirate the plaintiff's identity for some
advantage of his own . . . that he becomes liable."  Id. at 852; see Moore
v. Big Picture Co., 828 F.2d 270, 272, 275 (5th Cir. 1987).
     Vermont has no statute providing a cause of action for invasion of
privacy and, to date, the tort has been recognized only obliquely in the
case law of this state.  In Lemnah v. American Breeders Service, Inc., 144
Vt. 568, 574, 482 A.2d 700, 704 (1984), this Court considered two other
forms of the tort -- unreasonable publicity given to a person's private life
and publicity that unreasonably places the person in a false light.  In
holding that the plaintiff had failed to establish the "publicity" element
of these torts, we followed the American Law Institute's Restatement
(Second) of Torts (1977), but noted that we were applying only "the law as
instructed" since "[t]here was no dispute among the parties that the law as
expressed in the Restatement would control," and therefore we would not
"address the general question of what elements comprise the tort of invasion
of privacy in Vermont."  Id. at 574 n.1, 482 A.2d  at 704 n.1.
     In the present case, the trial judge also drew his jury instructions
from the Restatement (Second) of Torts, notably { 652C:  "One who
appropriates to his [or her] own use or benefit the name or likeness of
another is subject to liability to the other for invasion of his [or her]
privacy."  Section 652C restates the rule as it has evolved since the early
years of the century in New York and Georgia and as it has since been
recognized in the case law or statutes in virtually all jurisdictions.  See
Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 82 (W. Va. 1984); Prosser
and Keeton, at 850-51; Felcher & Rubin, Privacy, Publicity, and the
Portrayal of Real People by the Media, 88 Yale L.J. 1577, 1581-82 (1979). (FN4)
In the exercise of our power as a common law court, see Hay v. Medical
Center Hospital of Vermont, 145 Vt. 533, 542-44, 496 A.2d 939, 944-45
(1985), we now hold that a damage remedy for invasion of privacy by the
appropriation of a person's identity, at least when done for commercial
purposes, should be available in appropriate circumstances in Vermont as in
other states.
                                    II.
     In granting the motion for a JNOV, the trial judge reasoned:  "I don't
think you can have appropriation by putting in the name and face of a person
who has no fame."  In our view, this construes the tort too narrowly.
     Fame of the person whose identity is appropriated has never been a
prerequisite to recovery for invasion of privacy.  One of the leading cases
establishing a right of action for invasion of privacy by appropriation of
likeness, Pavesich v. New England Life Insurance Co., 122 Ga. 190, 217, 50 S.E. 68, 79 (1905), involved the unauthorized use in an advertisement by an
insurance company of a photograph of the plaintiff, who "was in no sense a
public character."  Recent cases applying Restatement (Second) of Torts {
652C also permit recovery although the plaintiff was not famous.  For ex-
ample, in Tellado v. Time-Life Books, 643 F. Supp. 904, 909 (D. N.J. 1986),
the court held that a publisher may be liable for misappropriation of
likeness for using a photograph of the plaintiff, without his permission, in
promotional material for a series of books on the Vietnam War.  The
photograph showed the plaintiff as an anguished soldier in Vietnam, but
neither his name nor his face were well known to the public.  The cause of
action, the court ruled, is not limited to famous individuals. (FN5)
     Plaintiff was not obligated to prove a specific pecuniary value of her
name, photograph and "testimonial," either as a measure of Contel's benefit
or of her own damages.  Damages are not presumed, however; plaintiff was
required to show that she was harmed by defendant's conduct, as her
testimony indeed tended to show.  The action is similar in this sense to
certain defamation actions where plaintiffs must show "actual loss" although
they are relieved of the burden of proving pecuniary loss or "special
damages."  See Ryan v. Herald Ass'n, Inc., ___ Vt. ___, ___, 566 A.2d 1316,
1322 (1989).  Thus, for example, in Faber v. Condecor, Inc., 195 N.J.
Super. 81, 90-91, 477 A.2d 1289, 1294-95 (App. Div. 1984), the court upheld
a jury verdict for a family (not famous) whose privacy was invaded by a
manufacturer of picture frames that used the family's photograph without
permission in its frames displayed for sale: "Plaintiffs' testimony con-
cerning their displeasure with the picture's appearance in defendant's
frames and the mental distress they suffered established the damage element
of their cause of action.  Damages may be recovered for invasion of privacy,
even if the injury suffered is mental anguish alone."  See also Moore v. Big
Picture Co., 828 F.2d at 276-77; Restatement (Second) of Torts { 652H
(1977).
     In addition to proving harm to herself, plaintiff also was required to
prove a benefit to the defendant, although, as we have noted, a dollar
amount need not be established.  Comment c to { 652C in the Restatement
explains that "the defendant must have appropriated to his own use or
benefit the reputation, prestige, social or commercial standing, public
interest or other values of the plaintiff's name or likeness."  The evidence
in the record amply demonstrates that Contel sought to reap the fruits of
plaintiff's prestige and standing as a "happy" employee, as she was
portrayed in the ad, despite its protestations that the ad was designed to
convey only a "public service" message.  Plaintiff's expert testified that
this sort of advertising is "one of the most effective kinds," "more
valuable than straight advertising saying we give good service."  When asked
by defendant's counsel why he didn't "print up pictures of anonymous people
with a description of a job title . . . and simply do it that way," Contel's
public affairs specialist testified:  "I guess in a word, credibility.  You
need, you can't get any place unless you establish credibility, and if we
had hired an actor and so on and so forth, there wouldn't have been."
     Defendant further argues that its use of plaintiff's name and likeness
was "clearly incidental" and therefore not tortious.  See Restatement
(Second) of Torts { 652C comment d (1977).  There are of course incidental
uses of people's likenesses in commercial advertising, such as a photograph
of a busy street where certain pedestrians may be recognizable, and in such
a case there could be no liability.  There may also be close cases where the
line between tortious appropriation and permissible use is hard to draw.
This is not a close case.  This ad featured Cynthia Staruski exclusively and
attributed the company's advertising copy to her solely because of who she
was.  The strategy of Contel's campaign was to obtain a commercial benefit -
- and, perhaps, also provide a public service announcement -- from the
association of the ad's text with the names and photographs of select
employees.  There is nothing incidental about plaintiff's appearance in the
ad.  See Faber v. Condecor, Inc., 195 N.J. Super. at 87-88, 477 A.2d  at 1293
(rejecting claim that defendant's use of plaintiffs' photograph in picture
frames displayed for sale was a merely incidental use of plaintiffs'
likeness).
     "In passing upon the propriety of the granting of a motion for judgment
n.o.v., V.R.C.P. 50(b), we must view the evidence in the light most
favorable to the nonmoving party, excluding the effect of any modifying
evidence. . . .  If there was any evidence fairly and reasonably supporting
the nonmoving party's claim, the judgment n.o.v. was improper."  Kinzer v.
Degler Corp., 145 Vt. 410, 412-13, 491 A.2d 1017, 1018-19 (1985).  So
viewed, the evidence clearly supports a damage award for the invasion of
privacy, and the trial court accordingly erred in granting a JNOV.   We
cannot simply reinstate the jury's verdict, however, because of other errors
at trial.
                                   III.
     Plaintiff asserts that the court defined the tort of appropriation too
narrowly during the trial, to her prejudice.  On defendant's motion, the
court ruled that Contel's use of plaintiff's name, photo and job description
in the advertisement was permissible and that plaintiff's evidence of
damages would therefore be limited to those flowing from the use of the
final "testimonial" paragraph.  Plaintiff's counsel disagreed, arguing "that
we have a right to prove our damages as to the ads as a whole because the ad
as a whole was an invasion of my client's privacy."
     Contel first argues that this issue is not preserved for appellate
review on the ground that plaintiff never made an offer of proof of
specific evidence excluded under the court's ruling.  See V.R.E. 103(a)(2).
We disagree.  Staruski and her co-plaintiffs sought to establish that they
feared harassment from irate customers provoked by seeing their names and
photographs in the newspaper.  To this end, they offered evidence on
previous experiences with customers who had had services disconnected.  The
court cut off this line of questioning directed to one of the co-plaintiffs
on the ground (although the record is not entirely explicit) that the
proffered evidence went only to harm caused by the permissible portions of
the ad (name and photograph) but not to harm caused by the "testimonial"
portion.  Direct examination of Ms. Staruski followed the court's ruling,
and it is evident from the transcript that counsel tried to tailor his
questions to the ruling.  We therefore believe the claim is properly
preserved, and we are unable to say that plaintiff suffered no prejudice
from the evidentiary ruling.  Aggravating the problem, the judge repeated
the point in the jury instructions:

          I therefore instruct you that Continental's publication
          of the names, photos and job descriptions of these
          plaintiffs was permitted, even if done without their
          consent or knowledge.  In other words, the headline and
          first paragraphs of the three advertisements may not be
          the basis for recovery in this suit by plaintiffs. . . .
          Finally, the fact that these portions of the
          advertisements -- name and job description -- are done
          in the form of fabricated quotations does not render
          them wrongful, or a basis for recovery by plaintiffs.
          Instead, you are to focus on the last paragraph in each
          of the advertisements; what has been described as the
          "testimonial."
     Both the court's limitation of plaintiff's evidence and the jury
instruction are error.  While the publication of plaintiff's name and
photograph, without more, may or may not have subjected Contel to liability
-- a question we do not reach -- the advertisement as a whole certainly did
(viewing the evidence in the light most favorable to plaintiff), and
plaintiff is entitled to seek compensation for all harm proximately caused
by its publication.  See Restatement (Second) of Torts { 652H (1977).  We do
not believe the ad may be dissected as the trial court proposed; publication
of the "testimonial" section is wrongful only because it is attributed to an
identifiable person.  Moreover, even if severance of the name and photograph
were possible, we do not understand why the final paragraph is any more
offensive than certain other aspects of the ad.  The third paragraph, for
example, deemed permissible by the trial court, includes the assertion that
plaintiff "enjoys" informing the public of certain telephone features.  In
our view, that is every bit as much an appropriation of identity as the
final paragraph: both are examples of Contel attributing sentiments to
plaintiff for its own commercial advantage.  Finally, we do not view the
quotation marks as "de minimis," as the trial court ruled.  They signify
what is most indelicate about this ad -- the recitation of a credo composed
by Contel's management as if it were created and spoken by plaintiff.
     Plaintiff was entitled to prove all damages reasonably flowing from the
publication of the advertisement; she is therefore entitled to a new trial
for this purpose.  Since the issues may arise on retrial, we now turn to
Contel's assertions of trial error.
                                    IV.
     Contel contends first that the court erred in granting plaintiff's
"motion for a directed verdict" on the issue of consent.  The relevant
evidence may be summarized as follows.  Plaintiff testified that she had not
seen the ad before it was run in the newspaper and never consented to its
use by Contel.  She knew of the campaign to feature employees in Contel's
ads, but testified that she understood she would not appear in the ads after
a discussion with her supervisor, who opposed the publication of the ads.
Defendant offered no evidence that directly contradicted plaintiff's
testimony; however, it did offer evidence that it was company policy to
circulate the advertisements before publication for their review and
approval by the featured employees, although Contel produced neither
documentary nor testimonial evidence to prove that this policy had been
implemented in plaintiff's case.
     While the evidence on this issue undoubtedly favored plaintiff, we do
not believe that it warranted a ruling as a matter of law.  Such rulings,
like directed verdicts, should be avoided whenever the evidence fairly
supports the claim of the nonmoving party.  See Lillicrap v. Martin, No. 86-
443, slip op. at 8 (Vt. July 14, 1989).  The weight of the evidence, the
credibility of the witnesses, and the persuasive effect of their testimony
are all matters best left to the determination of the jury.  The jury here
ought to have been permitted to assess the plaintiff's credibility and
consider the likelihood of Contel's concededly unsubstantiated version of
events.  The court's ruling and jury instruction on consent were therefore
in error.  The record on retrial, of course, may differ significantly from
the one before us, and we cannot predict what rulings may be appropriate
given potential differences in evidence.
                                    V.
     Contel next objects to the court's instruction to the jury, referring
to the advertisement's final paragraph: "For the employer to publish
purported opinions ascribed to the three women constituted appropriation of
their right to privacy, unless it was done with their consent."  The
instruction essentially directed the jury to find that defendant was liable
for publication of the final paragraph if done without permission (although
the court had earlier denied plaintiff's motion for a directed verdict on
liability).  Since the final paragraph, as discussed above, should not have
been severed from the remainder of the ad, this precise issue will not
resurface on remand; nonetheless, we believe guidance is warranted.
     We agree with the gist of the trial judge's instruction, and believe it
was flawed only insofar as it was limited to the ad's final paragraph.  We
hold that Contel's publication of the entire ad featuring plaintiff, unless
done with her consent, was wrongful as a matter of law.  On the evidence
presented at trial, assuming no consent, a reasonable juror could not but
conclude that defendant had invaded plaintiff's privacy by appropriating her
identity to promote a business advantage.  As we said earlier, Contel's
claim that the use of her name and likeness was merely incidental is
manifestly untenable.  Contel also sought, throughout the trial, to convey
the impression that its ad was a public service announcement intended only
to assist customers and inform the public.  Undoubtedly, certain uses of a
person's name or likeness, as in the law of defamation, enjoy constitutional
protection, but that issue does not seriously arise in this case.  The false
attribution to plaintiff of defendant's message -- even to the extent the
message itself serves a public purpose -- has scant, if any, legitimate
public value.  If plaintiff never consented to the use of her name and
likeness in this manner, the public was subjected to a false testimonial at
plaintiff's expense and she is entitled to recover for the injury to her
privacy.
                                    VI.
     Contel finally challenges the punitive damages award.  Its argument is
twofold: that the evidence did not support a finding of malice, the
necessary predicate for punitive damages, see Ryan v. Herald Ass'n, ___ Vt.
at ___, 566 A.2d  at 1322; and that a corporation may not be subject to
punitive damages for the acts of its agents.
     In Shortle v. Central Vermont Public Service Corp., 137 Vt. 32, 33,
399 A.2d 517, 518 (1979), this Court stated:
            Punitive or exemplary damages may upon proper showing
          be awarded if the act or acts relied upon are more than
          wrongful or unlawful.  It must be shown that there was
          actual malice.  This may be shown by conduct manifesting
          personal ill will or carried out under circumstances
          evidencing insult or oppression, or even by conduct
          showing a reckless or wanton disregard of one's rights.
          The fact that the defendant is a corporation does not
          prevent an award of punitive damages in an appropriate
          case, but the malicious or unlawful act relied upon must
          be that of the governing officers of the corporation or
          one lawfully exercising their authority, or, if the act
          relied upon is that of a servant or agent of the
          corporation, it must be clearly shown that the governing
          officers either directed the act, participated in it, or
          subsequently ratified it.
(Citations omitted.)  In this case, the decision to print the advertisements
was made by Darrel Hollinger, at the time a vice president of Contel of
Vermont and the "state manager" in Vermont, who, according to his testimony,
"had overall responsibility for the operation" throughout the state. (FN6)
Publication of plaintiff's ad was thus ordered by a high-level official, not
an unauthorized employee.  Under the Shortle test, any malice on the part of
Hollinger as a "governing officer" may be imputed to the corporation.  A
corporation may not be shielded from punitive damages in these
circumstances.  See also Protectus Alpha Navigation Co. v. North Pacific
Grain Growers, Inc., 767 F.2d 1379, 1386-87 (9th Cir. 1985); Restatement
(Second) of Torts { 909 (1979) (punitive damages may be awarded against
principal because of conduct by agent if "agent was employed in a managerial
capacity and was acting in the scope of employment").
     Furthermore, plaintiff's evidence tended to show that the decision to
print the ad was made with knowledge that she and her supervisor objected to
its publication.  Douglas Munson, the public affairs specialist of
Continental Service Corporation who wrote the ad, testified that plaintiff
had raised concerns with him about appearing in an ad, particularly
objecting to the use of her last name.  When asked, "Did you consider the
concern that she expressed to you to be a real concern?" Munson replied,
"Definitely."  He relayed her concerns to his supervisors, and was
eventually told to proceed with the ad campaign.  Munson's testimony
continued:

          Q.  And did he [Munson's immediate supervisor, Donald
          Barnes] communicate to you that the employees had
          consented to the use of their last name in these ads?

          A.  I don't know if he -- I can't remember exactly what
          he did convey.  It was basically that we had gotten the
          go ahead to run the ads.

          Q.  That "we" meaning you and Don Barnes?

          A.  Yes, specifically I got my marching orders.

          Q.  Your marching orders were from your boss, Don
          Barnes?

          A.  Yes.

          Q.  And he received directions from whom?

          A.  To the best of my knowledge, it would have been from
          Darrel Hollinger.
Hollinger also testified that he was aware of Staruski's objections.

          Q.  And what did you do as regards that concern that was
          raised?

          A.  Well, my response to it was that we had already
          initiated the program in a couple of other states.  We
          had had no problems with the approach that we were
          using.  I was aware of no problems that any employee
          received in either of the other states, and with all the
          other things that we had to deal with at that time, with
          a refiling of the rate case and moving of our employees
          to the service office and trying to convert our
          Springfield area to digital switching, we just didn't
          have time to redo something that was already done for
          us, and it worked well elsewhere, so I said I thought we
          ought to go ahead with the program as is because, you
          know, if anybody didn't want to participate in it, it
          was my understanding that they could opt out.

          . . . .

          Q.  Did you go back to the employees that voiced the
          concern and discuss anything with them?

          A.  No, I asked Art to communicate back, you know, what
          we had decided, and I didn't talk to any employees
          myself.

          Q.  Is it fair to say that you weighed the complaints or
          the concerns of the employees versus the value of the ad
          campaign to Continental Telephone Company of Vermont?

          A.  Oh, I suppose so.  I felt the program was a good
          program.
Viewing the evidence in plaintiff's favor, the testimony tends to show that
Contel's management knew that plaintiff objected to the proposed ad but
decided to ignore her objections and to carry out the campaign regardless.
While Hollinger's testimony refers vaguely to his "understanding" that she
"could opt out," the inference may plausibly be drawn from the testimony as
a whole that he did not believe she would have that opportunity or that he
simply did not take her rights seriously -- in short, that in printing the
ad he showed "a reckless or wanton disregard" of her rights.  See Shortle,
137 Vt. at 33, 399 A.2d  at 518.
     There was no error in permitting the jury to award punitive damages.
     The judgment notwithstanding the verdict is reversed and the matter is
remanded for a new trial consistent with the directions herein.






                                   FOR THE COURT:


                                   _______________________________________
                                   Associate Justice




FN1.    The full text of the advertisement is as follows:
            "Hi, I'm Cindy Staruski"  Sales/Service Representative
             "When you call the Continental Telephone Service
          Center, and I answer, my responsibility begins.  I
          initiate action on any requests you might have for
          service.
            "As soon as I receive any required billing or
          directory information, I enter it into my computer
          terminal.  If there are any errors in your account, I
          work with you directly until it is corrected.
            "Another responsibility I have, which I enjoy, is
          informing you of the latest special features available,
          such as touch-tone or custom-calling.  I know the very
          real benefits of these features, as well as others,
          such as optional toll calling plans.  And I'm happy to
          explain them to you.
            "I've been with Continental Telephone for over a year
          and it has been exciting and reassuring to know that
          Continental continues to expand its equipment and
          services to meet its obligation to serve you."
The local "special features" listed in the two newspapers differed slightly.


FN2.     Two other employees of defendant featured in similar ads also
brought suit, but their cases settled prior to this appeal.


FN3.     We note that Contel was not required to file a cross appeal in order
to preserve these claims for our review, since it was content with the final
order in the case, namely the JNOV in its favor, and therefore had nothing
in the first instance to appeal.  See V.R.A.P. 4 (allowing fourteen days
from filing of first notice of appeal for filing cross appeals).  We have
held to the contrary in a previous decision, see In re Estate of Hogg, 147
Vt. 101, 104, 510 A.2d 1323, 1325 (1986), but now overrule that decision.
   In Hogg, the trial court invalidated an antenuptial agreement and the
estate of one of the parties to the agreement appealed.  In reversing and
reinstating the agreement, we declined to reach a claim by the other party
seeking a new hearing on the agreement's validity in the event the trial
court's decision were reversed, on the ground that he failed to file a
timely cross appeal.  We provided no rationale for the holding and are
unable to provide one now.  Even where no cross appeal has been filed, the
opposing party has a full and fair opportunity to rebut the appellee's
claims by filing a reply brief.  V.R.A.P. 28(c), 31(a).  These remarks, of
course, do not apply in situations where both parties seek to appeal a
judgment; in such case, the failure to file a cross appeal would leave a
party without a remedy if the appeal of the first party were dismissed by
the Court on motion or for want of prosecution.  V.R.A.P. 42.


FN4.    Many of the statutes limit the tort to uses of the name or likeness
for advertising or for "purposes of trade," Prosser and Keeton, at 851 n.17,
852, while the common law of other states and certainly the Restatement are
broader.  { 652C, comment b.  We do not here consider whether and to what
degree the noncommercial appropriation of a person's name or likeness may be
tortious in Vermont.


FN5.    Indeed, some authorities hold that the appropriation for profit of a
famous person's name or likeness is not an invasion of privacy but a
different tort altogether.  See Haelan Laboratories, Inc. v. Topps Chewing
Gum, Inc., 202 F.2d 866, 868 (2d Cir.), cert. denied, 346 U.S. 816 (1953)
("in addition to and independent of [the] right of privacy . . . a man has a
right in the publicity value of his photograph, i.e., the right to grant the
exclusive privilege of publishing his picture"); Crump v. Beckley
Newspapers, Inc., 320 S.E.2d 70, 85 n.6 (W. Va. 1984) (distinguishing right
of privacy, which "protects individual personality and feelings," from right
of publicity, "which remedies the unjust enrichment caused by an
unauthorized exploitation of the good will and reputation that a public
figure develops in his name or likeness"); Felcher & Rubin, supra, at 1588
("portrayals that cause economic injury to well-known people . . . do not
rest securely within the right of privacy . . .; their complaint is not that
they have received publicity, but that they have failed to receive its 
benefits").


FN6.   Hollinger's "immediate supervisor" was David Rowley, the president of
Continental Telephone Company of Vermont, who was based in Concord, New
Hampshire.  According to Hollinger, Rowley was also "division manager" for
a larger organization, Continental Service Corporation, with headquarters in
Atlanta, Georgia; Rowley was "part of the service corporation, which is a
support organization that supports all of the companies in each of the
jurisdictions and the divisions and states."