## Facts

- John W. Neff, a private citizen employed in education, sued Time, Inc., publisher of *Sports Illustrated*, for invasion of privacy based on a photograph published in the August 5, 1974 issue alongside an article titled “A Strange Kind of Love.”
- The photograph depicted Neff at a professional football game with his trouser zipper open; Neff alleged the photo and title subjected him to ridicule and implied he was intoxicated or a sexual deviant.
- Time removed the case to federal court on diversity grounds and moved for summary judgment, submitting eight affidavits; Neff filed no counter-affidavits.
- Uncontroverted affidavits stated the photo was taken around 1:00 p.m. on November 25, 1973, at a Cleveland Browns–Pittsburgh Steelers game in a public area near a dugout.
- The photographer and staff attested Neff was part of a group of Steelers fans who knew they were being photographed, posed, and that Neff encouraged the photographer.
- *Sports Illustrated* selected the image to depict a “typical Steelers fan” in a feature about Steelers fans; Neff was not identified by name.

## Issues

1. Whether using Neff’s photograph in a magazine feature without express permission supports an invasion-of-privacy claim based on appropriation/publicity.
2. Whether the summary-judgment record established Neff’s implied consent to the taking and publication of the photograph.
3. Whether publication of the photograph in connection with a newsworthy subject at a public event is constitutionally protected and outside the appropriation tort.

## Decision

- The court granted Time’s motion for summary judgment and dismissed the invasion-of-privacy claims.
- The undisputed affidavits established as a matter of law that Neff knew he was being photographed for *Sports Illustrated*, encouraged the taking of the photograph, and thus impliedly consented to its publication.
- The photograph’s use was editorial, tied to a newsworthy feature about sports fans, and not a commercial advertisement or trade use.
- Because Neff offered no evidence to contradict Time’s affidavits, there was no genuine dispute of material fact under Rule 56.

## Legal Principles

- Appropriation/publicity liability generally requires use of another’s likeness for the defendant’s benefit in a manner akin to commercial exploitation; editorial use in a news or feature story is treated differently from advertising use.
- Consent is a complete defense to an invasion-of-privacy claim; consent may be implied from conduct demonstrating knowing participation in being photographed for publication.
- Truthful publication of images connected to matters of legitimate public interest, especially where the image is captured at a public event, is generally protected by the First Amendment and defeats privacy claims absent a purely exploitative commercial use.

## Conclusion

The court held that Neff could not maintain an invasion-of-privacy claim where uncontroverted evidence showed he knowingly posed for a magazine photographer at a public football game, thereby impliedly consenting to publication, and where the photograph was used in a newsworthy editorial context rather than commercial advertising.


Neff v. Time, Inc., 406 F. Supp. 858 (W.D. Pa. 1976)