Mauricio v Phoenix of Micronesia Inc [1998] FMSC 5; 8 FSM Intrm. 248 (Pon. 1998) (3 March 1998)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Mauricio v Phoenix of Micronesia Inc, [1998] FMSC 5; 8 FSM Intrm. 248 (Pon. 1998)

JOSEPH MAURICIO,
Plaintiff,

vs.

PHOENIX OF MICRONESIA, INC.,
Defendant.

CIVIL ACTION NO. 1994-041

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Trial: June 27-28, July 1-3, 1996
Decided: March 3, 1998

APPEARANCES:

For the Plaintiff:
Ron Moroni, Esq.
P.O. Box 1618
Kolonia, Pohnpei FM 96941

For the Defendant:
Delson Ehmes, Sr., Esq.
P.O. Box 1018
Kolonia, Pohnpei FM 96941

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HEADNOTES

Choice of Law; Torts - Invasion of Privacy
Because the primary lawmaking powers for the field of torts lie with the states, not the national government, the FSM Supreme Court's duty in an invasion of privacy case on Pohnpei is to try to apply the law the same way the highest state court in Pohnpei would. This involves an initial determination of whether it is contrary to, or consistent with, Pohnpei state law to recognize a right of privacy and an action for that right's violation. Mauricio v. Phoenix of Micronesia, Inc., [1998] FMSC 5; 8 FSM Intrm. 248, 251-52 (Pon. 1998).

Torts - Invasion of Privacy
Although Pohnpei has not adopted the Restatement (Second) of Torts as state law, Pohnpei state constitutional guarantees of freedom from certain intrusions indicate that a policy preference of the protection of privacy exists in Pohnpei, and there is no constitutional or traditional impediment to the recognition of a right to privacy in Pohnpei. Mauricio v. Phoenix of Micronesia, Inc., [1998] FMSC 5; 8 FSM Intrm. 248, 252-53 (Pon. 1998).

Choice of Law; Custom and Tradition - Pohnpei; Torts
Should Pohnpeian custom and tradition not be determinative, the FSM Supreme Court will look to its earlier holding and decisions of United States courts for guidance as to relevant common law tort principles, and will evaluate the persuasiveness of the reasoning in these decisions against the background of pertinent aspects of Micronesian society and culture in Pohnpei. Mauricio v. Phoenix of Micronesia, Inc., [1998] FMSC 5; 8 FSM Intrm. 248, 253 (Pon. 1998).

Torts - Invasion of Privacy
Although the FSM Supreme Court declines to adopt this formal three-pronged test for evaluating commercial appropriation invasion of privacy claims in Pohnpei, it notes that the following elements are present and create liability: 1) the plaintiff must be identifiable from the appropriated image or likeness; 2) the image or likeness must be used for trade or advertising purposes; and 3) the use must be unauthorized. Mauricio v. Phoenix of Micronesia, Inc., [1998] FMSC 5; 8 FSM Intrm. 248, 259 (Pon. 1998).

Torts - Invasion of Privacy
Postcards produced for sale are produced for predominately commercial purposes, and when a person's image fills the entire frame of the postcard, his presence is not merely incidental to the illustration of the sakau ritual. Mauricio v. Phoenix of Micronesia, Inc., [1998] FMSC 5; 8 FSM Intrm. 248, 259-60 (Pon. 1998).

Torts - Invasion of Privacy
Although a plaintiff may have implicitly consented to having his picture taken, that does not constitute consent to the use of that photograph in the form of a postcard for sale to the general public, because consent is not effective beyond the scope for which it is given. Mauricio v. Phoenix of Micronesia, Inc., [1998] FMSC 5; 8 FSM Intrm. 248, 260 (Pon. 1998).

Torts - Invasion of Privacy
A nanmwarki does not have authority to authorize the commercial use of another person's image without that person's consent even though the photograph was taken at a traditional feast hosted by the nanmwarki. Mauricio v. Phoenix of Micronesia, Inc., [1998] FMSC 5; 8 FSM Intrm. 248, 261 (Pon. 1998).

Torts - Invasion of Privacy
There is no recovery for false light invasion of privacy where the matter publicized is not untrue or highly offensive. Mauricio v. Phoenix of Micronesia, Inc., [1998] FMSC 5; 8 FSM Intrm. 248, 262 (Pon. 1998).

Torts - Invasion of Privacy
A person's appearance on a postcard showing a sakau ceremony cannot be interpreted as support for the postcard maker's commercial services, or be interpreted as trivializing or demeaning to the Pohnpeian culture, when the photograph was taken at a public event and accurately depicts what occurred at that event. Mauricio v. Phoenix of Micronesia, Inc., [1998] FMSC 5; 8 FSM Intrm. 248, 262 (Pon. 1998).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

Introduction

This matter came before the Court for trial beginning June 27, 1996, on plaintiff's claim that defendant tortiously invaded his privacy by marketing his image on a postcard for sale in Pohnpei. Plaintiff seeks damages for defendant's commercial appropriation of his image and likeness, for defendant's false light invasion of his privacy, and for defendant's unjust enrichment. Plaintiff also seeks punitive damages against defendant based on these claims. After carefully reviewing the evidence and legal arguments presented by both parties, the Court finds defendant liable for the commercial appropriation of plaintiff's likeness and image and for unjust enrichment. The Court finds against plaintiff on his claim for the false light invasion of his privacy.[1]

Background

Sometime between 1988 and 1992, Akira Kobayashi, an employee of Defendant Phoenix of Micronesia ("Phoenix"), took a photograph of the plaintiff, Joseph Mauricio, at a traditional celebration held in Kitti, a municipality of Pohnpei. Phoenix subsequently converted the photograph into a postcard for sale. In the postcard, plaintiff is shown wringing sakau through hibiscus bark over a sakau stone. An unidentified hand holds a coconut cup to catch the sakau. Plaintiff is bare-chested and wears a flower behind his ear.

Count I of plaintiff's Complaint, filed on April 18, 1994, alleges that employees of Phoenix took one or more photographs of the plaintiff without his consent with the intent to use these photographs for advertisements, postcards and other promotional purposes. Plaintiff alleges that Phoenix later sold and distributed postcards containing a reproduction of a photograph of him preparing sakau, also without his consent, and that these postcards generated revenue from their sale, served as advertising for Phoenix, and were intended to induce people to visit Pohnpei and use Phoenix's tourism services. He claims that the sale and distribution of his image for Phoenix's commercial benefit constituted an invasion of his right to privacy and, more specifically, an unlawful commercial appropriation of his image or likeness. As a direct result, he alleges that he has been humiliated, embarrassed and subjected to public ridicule, and has suffered severe mental anguish.

In Count II of his Complaint, plaintiff alleges that defendant's sale and distribution of the postcard containing his image placed him in a false light before his peers and the general public, by leaving the false impression that he endorsed the services offered by Phoenix, and "the false impression that he supports the trivialization and commercial exploitation of important customary celebrations."

In Count III, plaintiff alleges that he was never compensated or offered compensation by Phoenix for the use of his photograph, despite his repeated demands, and that Phoenix has been unjustly enriched by its appropriation of his image.

Finally, in Count IV, plaintiff seeks punitive damages, alleging that Phoenix acted willfully and maliciously, and with a wanton disregard of his rights and interest in the use of his image and likeness by selling postcards of him with full knowledge that it had not received his consent, either for the taking of his photograph or for the sale and distribution of postcards of him made from that photograph.[2]

Defendant Phoenix's primary defense is one of consent. Phoenix argues that the Nanmwarki of Kitti at the time, Benito Peter, invited Phoenix employees to attend the celebration, and gave them permission to take plaintiff's picture and to convert that picture into a postcard for sale. Defendant contends that under Pohnpeian custom and tradition, the Nanmwarki of Kitti had authority to give this consent on plaintiff's behalf.

In the alternative, defendant argues that plaintiff implicitly consented to the taking of his picture by attending the public event at which the photograph was taken. Defendant asserts that an announcement was made to all present that Phoenix employees would be taking pictures for possible use in postcards. Despite that announcement, plaintiff remained at the feast. Finally, defendant argues that plaintiff's image was only incidental to the real subject of the photograph - the ritual of sakau preparation - which was captured for informational purposes, rather than for commercial purposes.

The parties agree that no written consent was ever obtained from Mr. Mauricio, either for the taking of his photograph, or for the making of a postcard for sale from that picture. Plaintiff claims that he also did not orally or implicitly consent in any manner to the taking of his photograph, or to the making of a postcard from that photograph.

Plaintiff moved for partial summary judgment on his claims on February 7, 1996. The Court denied that motion on April 3, 1996. Defendant subsequently filed its own motion for summary judgment on April 29, 1996, which the Court also denied, on May 27, 1996. Among the issues of material fact remaining for resolution at trial were whether the Nanmwarki of Kitti in fact gave consent for the taking of plaintiff's photograph at the traditional celebration in question; whether under Pohnpeian custom and tradition the Nanmwarki of Kitti had authority to consent on plaintiff's behalf to the taking of his photograph and to the use of that photograph for reprint in postcards; whether the traditional ceremony at which the photograph was taken was open to the public or not; and whether a reasonable person would find that defendant's postcard cast plaintiff in a false light, offensive to a reasonable person. See Joint Pretrial Statement at 5-7 (Apr. 17, 1996); Amended Joint Pretrial Statement at 4-5 (May 17, 1996). See also Memorandum of Decision at 11 (Apr. 22, 1996), providing the basis for denial of Plaintiff's Motion for Partial Summary Judgment.

Discussion

I. Applicable Law

This Court's jurisdiction is based upon the diverse citizenship of the parties. FSM Const. art. XI, § 6(b). As this Court ited ined in Edwards v. Pohnpei, [1988] FMSC 6; 3 FSM Intrm. 350, 359 (Pon. 1988), "primary lawmaking powers for the field of torts lie with the states, not the nationalrnment." See Nethon v. Mobil Oil Micronesia, Inc. Inc., [1994] FMSC 22; 6 FSM Intrm. 451, 455 (Chk. 1994). Thus the Court's duty in this case, as it was in Nethon, is to try to apply the law the same way the highest state court in Pohnpei - the Pohnpei Supreme Court - would in this case. This involves an initial determination of whether it is contrary to Pohnpei State law or consistent with Pohnpei State law to recognize a right of privacy and an action for a violation of such a right in the first instance.

Plaintiff relies primarily on this Court's decision in Nethon v. Mobil Oil Micronesia, Inc., [1994] FMSC 22; 6 FSM Intrm. 451 (Chk. 1994) to support his claims. In Nethon, the FSM Supreme Court found that a cause of action existed for invasion of privacy in Chuuk State, and awarded damages to a woman whose photograph had appeared, without her consent, in a calendar produced by Mobil Oil. Plaintiff argues that the reasoning of Nethon is equally applicable in this case, and this Court should similarly find that a cause of action exists for invasion of privacy in Pohnpei.

Defendant argues that no case law currently establishes a right to privacy in Pohnpei and, based on Pohnpeian culture and tradition, none should be found to exist. Pohnpeians do not have the same expectation of privacy as Chuukese or Americans, defendant contends, and for that reason, Nethon and its holdings are not applicable to the facts of this case.

In Nethon, this Court reasoned that Chuuk State had previously adopted common law tort principles as the law of Chuuk, and had adopted sections of the U.S. law-based treatise, Restatement (Second) of Torts, as governing law, except where contrary to traditional Chuukese concepts. The Court then found that no constitutional or traditional impediment existed to the adoption of the relevant sections of the Restatement (Second) of Torts as the law of privacy in Chuuk. The Court observed that article IV, § 5 of the FSM Constitution indicates a policy preference in favor of the protection of privacy, though that provision deals primarily with governmental intrusio name="fnB3" href="#fn3">[3] See Nethon, 6 FSM Intrm. at 455. The Court durt did note that no constitutional or traditional impediment had been argued or pled.

Unlike Chuuk State, Pohnpei State has not adopted the Restatement (Second) of Torts as state law. However, the Pohnpei State Constitution, like the FSM Constitution, guarantees citizens a right to be free from certain intrusions. See Pon. Const. art. 4, § 8 (containing languagelar tlar to article IV, § 5he FSM national Constitutiitution, pertaining to unreasonable searches and seizures); Pon. Const. art. 4, § 4 ("Nson m deprof life, lib, liberty or property without duut due process of law. Private property maty may not be taken except for a public pu with just compensation"); Pon. Const. art. 4, § 14(1) (in of peace no soldisoldisoldier may be quartered in any house without the consent of the owner and occupants). These provisions, taken together, indicate that a policy preference in favor of theection of privacy exists ints in Pohnpei State, as it does in Chuuk State. Based on the cited provisions of the Pohnpei State Constitution, and on article IV, section 5 of the FSM National Constitution, the Court finds no constitutional impediment to the recognition of a right to privacy in Pohnpei.

At trial, defendant argued that under the FSM Constitution, the Court is bound to take custom and tradition into consideration in making its decisions. Defendant argues that traditionally Pohnpeians have little expectation of privacy. To illustrate this, defendant elicited testimony from plaintiff that plaintiff shares his home with his large, extended family.[4] The Court finds that defendant's evidence and argument goes to the degree of privacy expected by the reasonable Pohnpeian, and not to the existence of a right to privacy in the first instance.[5]

Having found that no constitutional or traditional impediment exists to recognition of a right to privacy in Pohnpei, and therefore to recognition of a cause of action for violation of that right, the Court must now decide what substantive law to apply to plaintiff's claims. Pohnpei State has not adopted the Restatement (Second) of Torts as state law, as Chuuk State has. However, this Court has stated that

common law decisions of the United States are an appropriate source of guidance for this Court for contract and tort issues unresolved by statutes, decisions of constitutional courts here, or custom and tradition within the Federated States of Micronesia. Review of decisions of courts of the United States, and any other jurisdictions, must proceed however against the background of "pertinent aspects of Micronesian society and culture."

Semens v. Continental Air Line, Inc., [1985] FMSC 3; 2 FSM Intrm. 131, 142 (Pon. 1985). Accordingly, the Court will look to decisions of United States courts and to this Court's holding in Nethon for guidance as to relevant common law tort principles, should Pohnpeian custom and tradition not be determinative. The Court will evaluate the persuasiveness of the reasoning in these decisions against the background of pertinent aspects of Micronesian society and culture in Pohnpei.

II. Testimony at Trial

Much of the testimony at trial went to the parties' attempts to establish at which particular traditional celebration the photograph at issue had been taken. Plaintiff, his friend Lolasko Soswa, and Pernell Peter, the son of one of the late Nanmwarkis of Kitti, Benito Peter, all testified that they believed the picture was taken at the late Nanmwarki Benito Peter's house during a feast given in thanks for the granting of a traditional title. Akira Kobayashi, who took the photograph, and Lino Mikel testified that they believed the photograph had been taken at a feast to which Phoenix employees had been invited in thanks for a financial contribution made to a church in Kitti by Mr. Katayama, Manager of Phoenix. Mr. Katayama had been a friend of the late Nanmwarki of Kitti, Benito Peter.

A. Joseph Mauricio

Plaintiff testified that he first encountered the postcard at issue when a woman who worked in a bakery in Kolonia, Pohnpei presented it to him and asked him if he knew who it was. After recognizing his own image, he then went into other stores looking for the same picture, and found others like it.

Mr. Mauricio testified that the photograph of him had been taken at a traditional feast in Enepein, Kitti, at the house of the late Nanmwarki, Benito Peter. Plaintiff testified that he knew which particular feast was depicted in the photograph, because in the photograph he is wearing a flower on his ear. The feast he remembered was the first time he had been given a flower mwarmwar to wear. He recalled the sakau stone in the photograph, and having sat on a log and worn oil at that particular feast as shown in the photograph. Plaintiff testified that the feast had been given to thank the Nanmwarki for bestowing a title on a female relative of his, which is why he participated in the feast.

Plaintiff further testified that on the day of the feast, he arrived at the Nanmwarki's house in the morning with his friend Lolasko Soswa, who assisted him in preparing the first sakau. Mr. Soswa was with him all day. He testified that he did not recall anyone introducing the guests from Phoenix, or explaining why they were present. However, he did remember seeing Japanese guests from Phoenix taking pictures of sakau, pigs and yams. Plaintiff did not remember anyone taking his picture, anyone asking to take a picture of him, or anyone saying anything to him about making postcards. He testified that if someone had asked him for his permission, he would not have granted it. According to Mr. Mauricio, after the first four or five cups of sakau had been prepared on that day, the Nanmwarki left to go to a funeral and did not return until around 3:00 p.m. Plaintiff testified that Mr. Kobayashi was present at the feast that day, but arrived after the Nanmwarki had left for the funeral.

Plaintiff admitted on cross-examination that he had prepared sakau at many feasts. He further admitted that at his earlier deposition he had not been able to recall at whose nahs the picture had been taken, why he had gone to that feast or whether anyone had gone with him. He explained that since the time of his deposition, the picture itself, when examined closely, reminded him of when and where the picture had been taken. However, he conceded that he had had an opportunity to view the postcard before giving his deposition testimony, and at that time could not place the event.

With respect to his false light invasion of privacy claim, plaintiff testified that he does not normally travel in his village without a shirt. He arrived on the day of the feast with a shirt on, but subsequently removed it. He explained that the customary practice in Pohnpei is that those pounding sakau do not wear shirts. He testified that he has prepared sakau many times, at many traditional feasts, and he supports and is proud of his participation in the tradition. However, while he feels it is appropriate for him to take off his shirt at a traditional celebration, he did not wish to appear without a shirt in a picture used for business purposes.

On cross-examination, counsel for defendant asked plaintiff to stand. Counsel called the Court's attention to the fact that plaintiff's chest was showing even in the courtroom through his unbuttoned shirt. Counsel also argued that in the postcard, plaintiff had no tan lines, which suggested that plaintiff was not, in fact, in the habit of wearing a shirt all the time.

B. Lolasko Soswa

Lolasko Soswa testified that he has lived in Wone, Kitti all his life, and is a close friend of the plaintiff's. He identified Joseph Mauricio as the person in the postcard, and testified that he recognized the hand seen in the postcard holding the sakau cup as his own hand. He testified that he attended the feast depicted in the postcard with the plaintiff, and had helped him prepare sakau. Mr. Soswa testified that he could identify himself and the occasion because he recalled having had long fingernails at the time and nail polish that was fading. He also recalled that he and the plaintiff had participated in a feast in which they had been sitting in the position shown in the photograph. At that feast, plaintiff had worn a flower in his hair. Mr. Soswa testified that the feast depicted was held to pay back respect for a traditional title given. He believed the feast had taken place about eight years previously at the Nanmwarki's house, although he acknowledged that there had been other occasions at which he had assisted plaintiff in preparing sakau by holding the cup.

Mr. Soswa testified that on the day of the feast, he arrived at the Nanmwarki's house in the morning. He and plaintiff prepared sakau until about 4:00 in the afternoon. They sat close to each other, perhaps two feet apart. The Nanmwarki was present, but left to go to a funeral, and returned in the early afternoon. Mr. Soswa testified that Mr. Katayama was also present at the feast, and that Mr. Katayama and other members of the Phoenix staff had brought their cameras, sodas and other items to be part of the ceremony. He knew they had taken pictures of the uhmw and people carrying sakau, but he had not seen anyone take a picture of Mr. Mauricio, even though he had been sitting next to Mr. Mauricio most of the day. Mr. Soswa did not remember anyone asking him for permission to take his own picture. Mr. Soswa did not recall an announcement introducing the Phoenix staff in attendance to the other people at the feast. He also did not hear the Nanmwarki say anything to the people in attendance after the sakau pounding had started. He did recall seeing Mr. Katayama and the Nanmwarki sitting and talking together, but did not see the Nanmwarki speak to the plaintiff.

Mr. Soswa testified that he had never been to a traditional feast at which the Nanmwarki had asked Pohnpeians to allow their pictures to be taken by non-Pohnpeians, and did not remember ever being at a traditional feast at which it was announced that photographs would be taken for postcards. Mr. Soswa testified that at a traditional feast, such as the one depicted in the postcard, it is expected that those pounding sakau remove their shirts.

C. Pernell Peter

Pernell Peter also testified on behalf of plaintiff. Pernell Peter is a son of the late Nanmwarki of Kitti Benito Peter. Mr. Peter identified the photograph as having been taken at his house, and remembered the occasion as having been a "kapasmwar" - a feast given in thanks for having received a traditional title. He recalled that his younger sister had received a traditional title, and he connected that event with the scene depicted in the photograph because he remembered only one feast at which people in the nahs had worn flowers. They had done so at his father's direction.

Mr. Peter testified that his father had been present on the morning of the feast, but had left to go to the funeral of J.C. Edward. Mr. Peter testified that he knew Mr. Katayama, who was a friend of his father's, and that Mr. Katayama had been present on the day of the feast with others from Phoenix. He recalled that the people from Phoenix were taking pictures of whatever they wanted. He did not remember if his father had made an announcement as to why people from Phoenix staff were present at the feast.

Mr. Peter said his father did not care for tourists or foreigners taking pictures in the nahs for commercial purposes. In fact, he remembered that at one time there had even been a document posted in the nahs that prohibited the taking of pictures in the nahs and the sale of those pictures. That sign had been posted in connection with a tourist program that came through. However, Mr. Peter conceded that he could not remember whether his father's policy had been made before or after the picture that is the subject of the litigation was taken.

D. Akira Kobayashi

Mr. Akira Kobayashi testified to the circumstances surrounding his taking of plaintiff's photograph. As Phoenix's Sales Manager, Mr. Kobayashi oversees Phoenix's bookkeeping and accounting, and manages personnel. He is also in charge of printing and film development. Mr. Kobayashi testified that he has been in this business for twenty years.

Mr. Kobayashi's recollection of the purpose of the traditional feast differed from that of plaintiff's, Mr. Soswa's and Mr. Peter's. Mr. Kobayashi recalled that the celebration had been held to thank Mr. Katayama, the manager of Phoenix, for donating funds to a church in Kitti. For that reason, representatives of Phoenix were invited to attend. Mr. Kobayashi testified that he believed he took the picture in either November or December 1988. That was the first year he arrived in Pohnpei, and he remembered having been invited to a feast at the Nanmwarki's house in that year.

Mr. Kobayashi testified that on the day of the feast, he raised his voice from where he was sitting and asking the Nanmwarki for permission to take pictures. The Nanmwarki was seated, elevated above everyone else in the building. The Nanmwarki said yes, and asked if he could have a copy if the pictures came out well. Mr. Kobayashi testified that after he had been granted permission to take pictures, and during the time he was taking pictures, he asked the Nanmwarki if the best ones could be used as postcards. The Nanmwarki said that that would be okay.

Mr. Kobayashi testified that when he took plaintiff's picture, he announced to him that he was going to take his picture by saying "okay?" The person preparing sakau said nothing in response. Mr. Kobayashi squatted and, while visible to plaintiff, took his picture. It was unclear from Mr. Kobayashi's testimony whether he had used a zoom lens to take plaintiff's picture.

Mr. Kobayashi further testified that the Nanmwarki had told people to give him access in taking pictures that day. He explained that he had discussed the content of the announcement to be made with the Nanmwarki in Japanese, which the Nanmwarki also spoke. The Nanmwarki told him, in Japanese, that he would announce that there were Japanese visitors present who were going to take pictures that day, and that visitors should allow them to take pictures of whatever they wanted because of the significance of the day. Mr. Kobayashi assumed that an announcement to that effect had been made in Pohnpeian. He explained that it was his understanding that the Nanmwarki would be the one to give permission for pictures because the picture were to be taken at the Nanmwarki's house and because the Nanmwarki is the highest chief.

During the course of trial, Mr. Kobayashi clarified his testimony. He explained that on the day plaintiff's picture was taken, there had been no mention of postcard making. However, after the pictures were developed, the Nanmwarki came to the Phoenix store. The Nanmwarki and Mr. Kobayashi then discussed whether to make the picture containing plaintiff's image into a postcard. It was at that time that the Nanmwarki gave Phoenix permission to convert plaintiff's photograph into a postcard. Mr. Kobayashi testified that he did not know whether Mr. Mauricio knew that his picture would be made into a postcard, but he assumed the Nanmwarki would inform him. Mr. Kobayashi admitted that he himself never asked Mr. Mauricio for permission to convert the picture into a postcard. He explained that sometimes he meets with the subjects of his photographs when making postcards and sometimes he does not. He never obtained written consent from either the Nanmwarki or from plaintiff for the use of plaintiff's image on a postcard.

Mr. Kobayashi testified that he made 50 sample postcards out of plaintiff's picture, which were distributed to the Bakery, Phoenix and Harborview. If those samples sold, more would be produced. Phoenix ultimately decided not to produce more postcards containing plaintiff's image because they were not selling well.

E. Lino Mikel

Next, Lino Mikel testified on behalf of the defendant. Mr. Mikel resides in Kitti and holds the traditional title of "Lepenmor Kitti." He is also the plaintiff's father's uncle.

Mr. Mikel recalled one feast at which Japanese were present in a nahs. He remembered that the Nanmwarki had invited Mr. Katayama and two other men to a kamadipw in Enepein, Kitti, to thank them for contributing to the building of a church in Wone. Mr. Mikel was present at that feast that day, and was seated with the Nanmwarki. He arrived around 8:00 in the morning, and stayed until the party ended. He testified that Mr. Kobayashi took pictures that day, but he remembered only one photograph being taken inside the nahs. He testified that Mr. Kobayashi and the Nanmwarki had spoken together in Japanese and, after that, the Nanmwarki informed those present to put on their best performance because a photograph of that would be taken. Mr. Mikel does not speak Japanese.

F. Melsohr Kilmete

Mr. Kilmete testified on defendant's behalf, as an expert in Pohnpeian custom and tradition. Mr. Kilmete lives in Enepein, Kitti, and works for Pohnpei State Tourism. He testified that his clan has responsibility for knowing the history, stories and important places in Pohnpei.

Mr. Kilmete explained that under Pohnpeian custom, everything that is brought to a communal feast, whether yams, pigs, sakau or whatever, is under the control or becomes the property of the Nanmwarki and is considered "peien konot." Whatever the Nanmwarki says shall be done with things brought to the communal feast - whatever is his wish or "poahngok" - is done. The people who attend a communal feast are considered the Nanmwarki's people.

In Mr. Kilmete's opinion, the Nanmwarki had authority to consent to the taking of plaintiff's picture for two reasons. First, plaintiff was preparing the Nanmwarki's sakau in the nahs. Mr. Kilmete explained that the Nanmwarki controls what occurs in the nahs and has authority over those in the nahs. This is true whether or not they are preparing sakau, but it is particularly true if they are preparing sakau. The Nanmwarki could therefore authorize the taking of a picture of a person preparing sakau. Mr. Kilmete testified that if a person enters a nahs and asks the Nanmwarki for permission to do a particular thing, and permission is granted, then it is appropriate for the person making that request to do that thing. He explained that there is no need to get permission from others, though out of respect it is appropriate to do so.

Second, Mr. Kilmete testified that plaintiff is related to the wife of the late Nanmwarki Benito Peter and is "seriso" - in the lineage of the Nahnken side and a servant to the Nanmwarki. When the Nanmwarki was still alive, as seriso, the plaintiff was considered a child and servant to the Nanmwarki. The Nanmwarki could therefore direct his actions as a parent would direct a child's.

More generally, Mr. Kilmete explained that individual rights are foreign concepts to Pohnpeians, who recognize a family right and a Nanmwarki right. Group rights are held above an individual's rights, although Pohnpeians do give special regard to individuals who have shown that they are leaders.

On cross examination, Mr. Kilmete testified that he knew of no specific custom or tradition regarding the sale of postcards, or the taking of pictures. He admitted that he did not know of any other occasion at which the Nanmwarki had granted permission to take pictures or to sell pictures. He conceded that requiring people to allow their pictures to be sold as postcards would be a new thing which, to his knowledge, had never happened before. He agreed that if the Nanmwarki had something unusual to be done at a feast, it would be announced. Mr. Kilmete also acknowledged that the Nanmwarki, as traditional leader, has a responsibility to look out for the interests of those persons whom he leads. He admitted that customs change over time, and that while the Nanmwarki's authority has not changed, respect for that authority may have diminished. Therefore, while the Nanmwarki may express his wish, or "poahngok," in certain circumstances he may not have the authority to effect his wishes.

G. Rufino Mauricio

Rufino Mauricio testified for plaintiff as an expert witness on Pohnpeian custom and tradition, in rebuttal to Mr. Kilmete's testimony. Mr. Mauricio is currently the National Government Historic Preservation Officer. He obtained a PhD in Anthropology from the University of Oregon, and testified that a portion of his graduate studies focused on the history of the development of the Pohnpei chiefdom. Rufino Mauricio grew up in Kitti. He is related to Plaintiff Joseph Mauricio by birth and by adoption. Joseph Mauricio's grandmother is his aunt by birth.

Rufino Mauricio explained that Pohnpeian customs could be understood generally on two levels. First, there is "tiakensahpw," a series of activities done normally within a nahs. These would include, for example, building an uhmw or killing a pig. With regard to these activities, the Nanmwarki can give directions and scold. He testified that it is his understanding that the Nanmwarki's orders regarding activities in a nahs may sometimes be negotiable, but involve the custom of respect. Second, there is "tiakenwahu," which is the foundation of respect which runs from the people to the Nanmwarki and from the Nanmwarki to the people. Mr. Mauricio testified that these Pohnpeian customs are always negotiable.

More generally, Mr. Mauricio testified that although "peien konot" means everything that is brought to the Nanmwarki is for the Nanmwarki, this refers to food and services of the people, not the people themselves, or to their images. If a Nanmwarki gives a "poahngok," or directive, it is not an absolute order. The Nanmwarki is concerned about his subjects, and concerned with the rights of the people. Mr. Mauricio testified that there is a saying that the Nanmwarki is like an hibiscus, people are like the wind; the Nanmwarki can bend with the wind.

Mr. Mauricio testified that the taking of photographs, and the printing and selling of photographs, are not "in the directory" of Pohnpeian customs. They are foreign elements. He is unaware of any specific customs or behaviors pertaining to photographs. In his understanding, the Nanmwarki is not to be involved with business dealings. He testified that in his opinion, if Phoenix staff had been invited to a traditional feast at the Nanmwarki's house and in a private conversation with the Nanmwarki asked for permission to take pictures and maybe to make postcards from those pictures, this would not mean that Phoenix had the authority to make those postcards without the consent of the subject. This would also be true if the Nanmwarki had made an announcement to the crowd that people from Phoenix were present and wanted to take pictures. It would also be true if there had been no consent at the feast, but a week later the photographer requested permission to make a postcard from pictures he had taken. In any of these situations, Mr. Mauricio believed that the photographer would not have had authority to use a subject's picture for a postcard without the subject's consent.

Mr. Mauricio testified that he did not believe the plaintiff fell within the term "seriso" because plaintiff was a member of a different clan from the Nanmwarki.

H. Tom Panholzer

Tom Panholzer testified for plaintiff as an expert in the field of photography. Mr. Panholzer testified that he has been a professional photographer since 1973, and has sold photographs to newspapers and magazines, and for reproduction in textbooks. He testified that, in his experience, there is a standard procedure in the photography profession for obtaining consent from subjects. He explained that the 15 or 20 professional photographers he knows carry written release forms with them in their camera bags. Mr. Panholzer testified that if he realizes that a person in a picture he is taking forms a large element of his composition, and he thinks that at some future time he may wish to use that photograph for publication, he has both the subject and a witness sign the model release form. If the subject is under 18, he obtains a signed release from the subject's guardian. Even if he is aware that the subject of his photograph has an agent, he nevertheless still obtains consent from the subject directly. He testified that he does this because no reputable newspaper or magazine will accept and pay for photographs without a release.

Findings of Fact and Conclusions of Law

I. Commercial Appropriation

Neither of the parties has directed the Court to any Pohnpei State statutory law or case law addressing claims for commercial appropriation, and the Court has found none. However, courts addressing the issue in many United States jurisdictions have recognized that an invasion of privacy exists in a defendant's misappropriation of a plaintiff's name or likeness for his own benefit or advantage. These courts have generally recognized that the following elements must be present for there to be liability for such an invasion of privacy: (1) the plaintiff must be identifiable from the appropriated image or likeness; (2) the image or likeness must be used for trade or advertising purposes; and (3) the use must be unauthorized. See Prosser and Keeton on the Law of Torts § 117, at 851-54 (5th ed. 1984); Restatement (Second) of Torts § 652C (1977); Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 908-14 (D.N.J. 1986) (citing cases from a variety of states in the United States). The three-pronged test set out abas been applied by this Court in a case arising in Chuuk Stuk State. See Nethon, 6 FSM Intrm. at 458-60.

This Court declines to adopt this formal three-pronged test for evaluating commercial appropriation claims in Pohnpei State. However, the Court notes that each of these three elements is present in this case. First, the Court finds that Plaintiff Joseph Mauricio is recognizable from the postcard image. Second, the Court finds that the postcard at issue was predominantly developed for trade or advertising purposes. Third and finally, the Court finds that use of plaintiff's image for distribution in the form of a postcard was unauthorized.

A. Identifiability

The postcard presented at trial contains the image of a seated figure, bare chested, wringing sakau above a sakau stone. See Plaintiff's Exhibit A. Defendant concedes that the figure is identifiable as the plaintiff, Joseph Mauricio. Plaintiff's figure fills the entire frame of the postcard. The element of identifiability is plainly met.

B. Use of Plaintiff's Image for Trade or Advertising Purposes

Defendant Phoenix argues that the postcard containing plaintiff's image was not developed for trade or advertising purposes. Rather, it was developed to document the Pohnpeian sakau ritual, a matter of public interest, and developed for informational rather than advertising purposes. Defendant further argues that plaintiff's image is only incidental to the picture's depiction of the sakau ceremony.

These arguments are not persuasive. The Phoenix postcard does depict the preparation of sakau, a ceremony of great importance in Pohnpeian culture. The creation of a postcard to illustrate the sakau ritual certainly has important informational content. However, the postcard itself was designed primarily to advertise Pohnpei as a tourist destination and to make money for Phoenix, as plaintiff argued at trial. Phoenix sells its postcards; it does not give these postcards away for free to educate or inform the public. As Mr. Kobayashi testified, Phoenix ultimately decided not to produce more postcards containing plaintiff's image because they were not selling well. This is telling evidence that the Phoenix postcards containing plaintiff's image were produced for predominantly commercial purposes, rather than for their informational content. Compare Nethon (free calendar containing plaintiff's image was produced for trade or advertising purposes where Mobil Oil received the goodwill of its customers in exchange). Courts in the United States have reached similar results. See Tellado v. Time-Life Books, Inc, 643 F. Supp. 904 (D.N.J. 1986) (photograph was used for trade or advertising purposes even though it was taken at a public event and used to promote educational materials); Faber v. Condecor, Inc., 477 A.2d 1289 (N.J. Super. App. Div. 1984) (plaintiff's image used directly for trade purposes where it was presented in picture frame offered for sale); Donahue v. Warner Bros. Pictures Distrib. Corp., 272 P.2d 177, 183 (Utah 1954) (interpreting statute that expressly proscribes the unauthorized use of names or pictures of private persons on post cards for advertising or promoting sales). In addition, defendant's argument that plaintiff's presence in the postcard is merely incidental is undermined by the fact that plaintiff's body fills the entire frame of the postcard. Accordingly, the Court finds that the postcard at issue was developed primarily for trade or advertising purposes.

C. Unauthorized Use/Consent

Defendant next argues that because the Nanmwarki consented to the taking of photographs at the kamadipw, the actual consent of the kamadipw participants was unnecessary and defendant could use its photographs for any worthwhile purpose. Defendant argues that by taking part in the kamadipw, all participants consented to any decision made by the Nanmwarki because he is the sole decisionmaking authority at a kamadipw. Defendant contends that plaintiff implicitly agreed to be bound by the directions of the Nanmwarki through his presence at the kamadipw, and therefore he implicitly consented to the taking of his photograph. Defendant further argues that because the Nanmwarki announced the purpose of Phoenix's presence to everyone at the feast, plaintiff also implicitly consented to the conversion of his image into a postcard.

In the alternative, defendant argues that even if plaintiff himself did not implicitly consent, the Pohnpei Constitution expressly "recognizes and respects the responsibility and authority of parents over their children." See Pon. Const. art. 5, § 3(1). Under Pohn custom andm and tradition, the Nanmwarki stood in the role of father to the plaintiff, and could consent on plaintiff's behalf to both the taking of his pictud to the making of a postcard from that photograph.

Finally, defendant asserts that whether or not the Nanmwarki had actual authority to consent on plaintiff's behalf is not relevant; Phoenix cannot be held liable because it reasonably relied on the apparent traditional authority of the Nanmwarki to give it consent.

After carefully considering each of these arguments and the testimony and evidence presented at trial, the Court finds that plaintiff implicitly agreed to the taking of his photograph. The Court bases this finding on plaintiff's presence at the traditional celebration, which was open to the public; the testimony of Mr. Kobayashi, who stated that he squatted down in plaintiff's view to take plaintiff's picture; and the proximity of Mr. Kobayashi to plaintiff at the time the picture was taken, as demonstrated by the composition of the photograph itself. Nevertheless, despite plaintiff's implicit consent to the taking of his photograph, the Court finds that no effective consent was given, either expressly or implicitly, to the use of that photograph in the form of a postcard for sale to the general public.

Consent is not effective beyond the scope for which it is given. Nethon, 6 FSM Intrm. at 459. No proof was ever presented at trial that plaintiff expressly agreed to the use of his image for a Phoenix postcard. Phoenix concedes this point. Even if plaintiff consented to Mr. Kobayashi's taking of his photograph, that consent would not extend to the production of postcards for sale from that image, in the absence of evidence that plaintiff understood the purpose for which his photograph was being taken.

There was conflicting evidence at trial as to whether a general announcement was ever made that photographs were being taken for possible use as postcards at the event at which plaintiff's photograph was taken. Plaintiff testified that he never heard such an announcement. The Court finds plaintiff's testimony on this point credible.[6] Even if a general announcement had been made at the feast in Pohnpeian that Phoenix photographers were present, and that they intended to take photographs for possible use as postcards, the Court finds that plaintiff did not hear this announcement and thus did not implicitly consent to the use of his image for that purpose by remaining at the feast after any such announcement was made. Compare Nethon, 6 FSM Intrm. at 459 (where defendant obtained plaintiff's consent to be photographed, but failed to obtain consent for the publication of photograph in its calendar, court found use of photograph unauthorized); Faber, 477 A.2d at 1293-94 (where plaintiff initially consented to the taking of his photograph, but defendant then used the photograph for a further and different purpose for its own commercial benefit, court found consent not waived to later use). Plaintiff's general acquiescence to the taking of a photograph cannot reasonably be construed to constitute consent to the making of a postcard for sale to the general public from that photograph.

The Court also finds that the Nanmwarki did not have authority to consent on plaintiff's behalf to the commercial use of plaintiff's image. Experts for both parties testified that the Nanmwarki has authority to control events at traditional feasts. Evidence presented at trial suggested that the Nanmwarki of Kitti may have wished to allow Phoenix staff to take whatever photographs they wished, and to make postcards from those photographs to thank Mr. Katayama for donating funds to a church in Kitti. However, the ultimate decision to use plaintiff's image for a postcard was made in Phoenix's office, after the feast or kamadipw had concluded. The Court finds that the Nanmwarki did not have authority at that time to consent on plaintiff's behalf to the use of his image for commercial purposes, in the absence of plaintiff's own consent. Both Melsohr Kilmete and Rufino Mauricio testified that the Nanmwarki's decisions respecting his people are based on mutual consideration. If this is so, in the absence of any custom or tradition governing such commercial uses, and out of respect for the plaintiff, the appropriate thing for the Nanmwarki to do would have been to request consent from Mr. Mauricio and to give him an opportunity to allow or to deny Phoenix use of his image himself. Mr. Kobayashi, a photographer with 20 years experience in the industry, apparently knew that consent was necessary for the commercial use of plaintiff's photograph. He attempted to obtain such consent from the Nanmwarki. His error was in failing to secure consent directly from his subject.

As to defendant's alternative argument that the Nanmwarki stood in the position of parent to plaintiff and for that reason the Nanmwarki could extend consent on plaintiff's behalf, the Court notes that Article 5, § 3(2) of thnpei State Constionstitution provides that "[t]his Constitution also acknowledges the duties and rights of children in reto respect and good family relations as needed" (emphasis added). Plaintiff was not a minorminor when his photograph was taken, and his consent should properly have been sought.

Accordingly, in the absence of custom or tradition governing the taking of photographs for commercial use, the Court finds that plaintiff's right to privacy was violated by defendant's use of his image for commercial purposes. The Court finds that the reasoning of Nethon and the United States cases cited are persuasive in this area.

II. False Light Invasion of Privacy

Plaintiff's second claim is for false light invasion of privacy. Plaintiff asserts that the Phoenix postcard leaves the false impression that he supports Phoenix's services, the false impression that he trivializes Pohnpeian customs, and the false impression that he does not mind being displayed with his chest showing. Again, the parties have directed the Court to no Pohnpei State statutory or decisional law addressing claims for false light invasion of privacy in Pohnpei State. Accordingly, the Court looks to decisions of other jurisdictions for guidance.

Courts in the United States that have recognized causes of action for false light invasion of privacy have generally required that a plaintiff establish the following elements: (1) the false light in which plaintiff was placed would have been highly offensive to a reasonable person; and (2) the person acting had knowledge of or acted in reckless disregard of the falsity of the light in which plaintiff was cast. See Cantrell v. Forest City Publ'g Co., [1974] USSC 217; 419 U.S. 245, 95 S. Ct. 465, 42 L. Ed. 2d 419 (1974); Tellado, 643 F. Supp. at 907; Prosser and Keeton on Torts § 1t 863-66; Restatement (Sec (Second) of Torts § 652E. An essl element of a of a false light invasion of privacy claim it the matter publicized must have been untrue. This Court has applied the general test enun enunciated by United States courts for eving claims of false light ight invasion of privacy has been applied to a similar claim arising in Chuuk State. See Nethon, 6 FSM Intrm. at 456.

This Court declines to adopt these formal elements as the test for application in this case under Pohnpei State law. However, the reasoning in these cited cases and materials is instructive and compelling.

The Court finds that a reasonable person would not interpret plaintiff's appearance in the postcard as support for Phoenix's commercial services, or find that appearance trivializing or demeaning to the Pohnpeian culture, as plaintiff argues. The photograph was taken at a public event and accurately depicts what occurred at that event. Plaintiff admitted at trial that it is customary to remove one's shirt while performing the sakau ceremony, and that he is proud to participate in the sakau ceremony. He does not contend that the photograph incorrectly describes his participation in the ceremony. For that reason, it is difficult to see how his participation in that public event could have been highly offensive to a reasonable Pohnpeian or have been seen as trivializing or demeaning to Pohnpeian culture. This is particularly so where the Nanmwarki apparently approved conversion of plaintiff's image into a postcard for public distribution. Compare Tellado, 643 F. Supp. at 907 (no recovery where plaintiff conceded that the photograph at issue was an accurate portrayal of him); Prosser and Keeton on Torts at 864-65 (successful actions for false light invasion of privacy are typically those in which the invasion is of a kind that defendant knew or had reason to know would be highly offensive, and knew or had reason to know would cause severe mental stress to plaintiff).

III. Unjust Enrichment

The third count of plaintiff's Complaint alleges that Phoenix has been unlawfully enriched through the sale of postcards containing plaintiff's image. Plaintiff claims that Phoenix never offered to compensate him for use of his image. Defendant responds that plaintiff has already been compensated for the use of his image by partaking of the food and drink at the kamadipw and having a traditional title bestowed on him.

The Court finds in favor of plaintiff on this count. Phoenix clearly used the postcard at issue to further its commercial enterprises, both through the direct sale of its postcards, and by the indirect advertisement of Pohnpei as a tourist destination and promotion of its own tourist services. Defendant did not present any compelling evidence that plaintiff consented to the conversion of his photograph into a postcard in exchange for food and drink at the kamadipw or in exchange for a traditional title.

Conclusion

The Court finds in favor of plaintiff on his claims for invasion of his privacy and unjust enrichment. The Court finds in favor of defendant on plaintiff's claim for false light invasion of privacy. The Court shall issue a notice shortly scheduling a date for hearing on plaintiff's claims for compensatory and punitive damages.

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^[1] The Court bifurcated trial into liability and damages phases. Evidence with respect to punitive damages has not yet been presented.

^[2] Plaintiff's Complaint also alleges that Phoenix has violated the public policy of the State of Pohnpei by engaging in activities beyond the scope of its foreign investment permit, and by exploiting local citizens. These allegations were not pursued at trial.
^[3] Article IV, § 5 providefollows:

Section 5. The right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable searches, seizure, or invasion of privacynot be violated. A warrant rant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.

^[4] Plaintiff testified that he lives in an enclosed house with two rooms, with his seven brothers, some of whom are married, and his own wife and four children. Defendant argued that this illustrates that in Pohnpeian culture, there is no such thing as privacy or no expectation of privacy, and therefore there can be no violation of privacy.

^[5] Compare In re Legislative Subpoena[1995] FMCSC 18; , 7 FSM Intrm. 328, 334-36 (Chk. S. Ct. App. 1995); In re Legislative Subpoena[1995] FMCSC 14; , 7 FSM Intrm. 259, 266-67 (Chk. S. Ct. Tr. 1995).

^[6] The Court makes this finding despite the fact that plaintiff's recollection of many events surrounding the traditional feast was surprisingly vivid, given his failure to remember the same information at his deposition.