## Facts

- Christina McCabe posed nude in a bathtub for photographer Donald Herron in San Francisco as part of his bathtub portrait series.
- After the photo session, Herron stated he wanted to “publish a book,” and McCabe did not respond; the parties had no further contact before suit.
- In April 1980, *The Village Voice* published a “Centerfold” feature of Herron’s bathtub photographs, including McCabe’s nude photograph, captioned identifying her as “Christina McCabe — Model.”
- Before publication, Herron provided the newspaper with purported model releases; the parties conceded that neither Herron nor McCabe actually signed the release for McCabe’s photograph, and it appeared partially crossed out.
- McCabe learned of the publication about a week after the issue appeared and filed a diversity action alleging libel and invasion of privacy (false light and publication of private facts), seeking compensatory and punitive damages.
- Defendants moved for summary judgment on all claims.

## Issues

1. Whether the publication of McCabe’s nude photograph in an artistic feature was capable of defamatory meaning sufficient to support libel.
2. Whether the publication placed McCabe in a highly offensive false light by conveying a materially false impression about her.
3. Whether publishing the nude photograph, without clear consent, could constitute invasion of privacy by publicity given to private life, and whether consent and legitimate public concern were disputed fact questions.
4. Whether punitive damages tied to the private-facts theory could be resolved on summary judgment.

## Decision

- Summary judgment was granted for defendants on the libel claim because the publication was not capable of defamatory meaning as a matter of law.
- Summary judgment was granted for defendants on the false light claim because the photograph did not create a materially false, highly offensive portrayal.
- Summary judgment was denied on the publication-of-private-facts claim due to genuine disputes regarding McCabe’s consent and whether the publication was of legitimate public concern.
- Summary judgment was denied on punitive damages related to the private-facts claim because the surviving claim and evidence concerning the questionable release left intent/recklessness issues for the jury.

## Legal Principles

- A defamation claim fails as a matter of law if the communication is not reasonably capable of a defamatory meaning when viewed in context.
- Truthful depiction, without a materially misleading implication about a person’s conduct or character, generally does not satisfy the “highly offensive” requirement for false light.
- For publication of private facts, consent is a complete defense, but consent to be photographed does not automatically establish consent to later, broader publication; disputed consent and disputed reasonable reliance on consent preclude summary judgment.
- A publication-of-private-facts claim may be viable where intimate nudity from a private setting is publicized and a factfinder could deem it highly offensive and not of legitimate public concern.
- Where a privacy claim survives and the record could support a finding of reckless disregard of privacy interests, punitive damages may remain for trial.

## Conclusion

The court disposed of McCabe’s libel and false light theories on summary judgment, but allowed the case to proceed to trial on publication of private facts and punitive damages because consent and newsworthiness turned on contested facts, including the absence of a valid model release.


McCabe v. Village Voice, Inc., 550 F. Supp. 525 (E.D. Pa. 1982)