Eugene David Sinclair, Jr. v. The National Lampoon, Inc., 432 F. Supp 1097 (D.C.S.C., 1977)
Eugene David Sinclair was a midget, not just any midget, a munchkin in the movie, The Wizard of Oz, released in 1939. When World War II broke out, he proudly served his country building naval warships at the Charleston Naval Shipyard. In 1977 the National Lampoon magazine decided to publish a spoof of the Life magazines p[ublished during the war and included a photograph of Mr. Sinclair working at the shipyard. The caption under his picture said he could climb into tight spaces and perform welding jobs the other shipyard workers couldn’t. What the editors didn’t count on was Mr. Sinclair was a devotely religious man who would object to his photograph being published in what he considered to be a pornographic New York magazine.
I was still a brand new lawyer, barely two years out of law school, when a senior partner in the law firm where I was working took on Mr. Sinclair’s case against the The National Lampoon magazine. The problem was the partner was stumped as to what cause of action he could bring on Mr. Sinclair behaft since, what the magazine said about him, was true and truth is an absolute defense to a cause of action for defamation. Moreover, despite Mr. Sinclair’s personal feelings, the National Lampoon magazine could hardly be called pornographic and was constitutionally protected as parody and satire under the First Amendment to the United States Constitution I was tasked with finding find a way around the legal obstacles to bringing an action against the magazine in South Carolina.
My research soon narrowed down the options to the relatively new cause of action for invasion of privacy. Relatively new because neither the Federal Constitution nor its Bill of Rights recognized a right of privacy and it wasn’t until 1965 when two great legal minds, Supreme Court Justices Louis Brandeis and William O. Douglas, conjured a right of privacy from the “penumbra” of other rights expressly granted by the other provisions of the constitution. It was out of the this same right of privacy that the rights to birth control, interracial marriage, abortion, and same sex marriage would be recognized. And, best of all, unlike defamation, truth was not a defense to an invasion of privacy.
I dug deeper and learned the law recognizes four different kinds of invasion of privacy: the physical intrusion or spying upon a person’s private space, the public disclosure of private facts or confidential information, publicity that places a person in a “false light,” and the appropriation of a person’s name or likeness for financial gain. I drafted a complaint alleging the National Lampoon magazine had appropriated Mr. Sinclair’s name and likeness for financial gain and held him up to a “false light” subjecting him to embarrassment and ridicule. The complaint was filed in the United States District Court for the District of South Carolina and assigned to the Honorable Robert W. Hemphill.
The magazine’s New York law firm responded to our complaint with a sternly worded letter threatening legal Armageddon unless we immediately dismissed it. I sat in the senior partner’s office while he called the New York lawyer who wrote the threatening letter. With a wink of his eye and smile on his face, he feigned how impressed he was that the New York lawyer he was speaking with had made it halfway up the third column of lawyers on the firm’s embossed letterhead. The partner in my firm offered to discuss settlement but declined capitulation. So the magazine promptly hired prominent local counsel and filed a motion to dismiss our case for lack of jurisdiction.
It was back to the library for me researching the law on jurisdiction and writing our brief in opposition to the New York law firm’s motion to dismiss. They argued the magazine was a New York corporation, headquartered in New York City, and had no offices or employees in the State of South Carolina. They claimed the magazine was written in New York, published in Kansas City, and sold nationally through an independent distributer. In the parlance of the law, the motion to dismiss claimed the magazine lacked sufficient minimum contacts to be sued in South Carolina and Mr. Sinclair should be required to bring his lawsuit against the magazine in New York City. Their recitation of the facts and the law made their arguments sound rock solid and insurmountable.
I discovered the magazine published information about its circulation on the page nobody reads in a magazine stating who owns the publication. I drafted targeted questions called interrogatories to the magazine asking for more detailed information about their sales in South Carolina. Based on the information we received, I was able to counter their arguments by showing the magazine had over 800 monthly subscribers in and sold over 4,000 monthly copies in South Carolina. That between the original issue and a “best of” compilation later published, the article about Mr. Sinclair was distributed at least 6800 times in South Carolina. I argued a magazine should be treated no different than the seller of a defective product which causes harm in South Carolina and, since the harm to Mr. Sinclair occurred in South Carolina, the Federal Court had jurisdiction to hear his case. Judge Hemphill agreed and denied the motion to dismiss. Very few District Court decisions get selected for publication but his was and still stands today as precedent a magazine can be sued where ever it is sold and causes harm. Having found he had jurisdiction, Judge Hemphill scheduled a trial to be held in Winnsboro, South Carolina the following fall.
For those unfamiliar with the geography of South Carolina, Winnsboro is the county seat of Fairfield County in the upstate. In 1977 it had a whopping population of 3,400. In just about every way imaginable, it was about as far away from New York City as you can get in these United States. For obscure historical reasons dating back to the Revolutionary War, there is a federal courthouse located on the corner of Washington and Congress Streets in Winnsboro that was built in 1822 by the famous architect, Robert Mills, who also built the Washington Monument. The courthouse has a classical columned front, with two curved staircases leading up to the portico and courtroom entrance on the second floor. It was here, in the Winnsboro National Historical courthouse that Mr. Sinclair would get his day in court.
At the beginning of all trials lawyers from both sides conduct voir dire questioning potential jurors to discover any possible prejudices they may have against their clients. One question the magazine’s lawyers asked was whether the late-night tv show, Saturday Night Live, would prejudice any of the jurors. In the fall of 1977, Saturday Night Live starred comedians Dan Ackroyd, John Belushi, Bill Murray, Gilda Radner, and Jane Curtin was just beginning its third season. Lorne Michaels, the publisher of the National Lampoon magazine, was also the producer of Saturday Night Live and was scheduled to be the magazine’s star witness. Much to their lawyer’s dismay the popular Saturday Night Live tv show wasn’t yet broadcast in Winnsboro, Soutrh Carolina. None of the prospective Winnsboro jurors had never heard of Lorne Michaels, Saturday Night Live, or the National Lampoon magazine. The star of the trial wouldn’t be Mr. Michaels after all but would be Mr. Sinclair. Everyone of the jurors had seen the Wizard of Oz but none thought Mr. Sinclair appearing in the movie would influence their decisions.
As the trial began, the partner in the firm I was working for called Mr. Sinclair’s nephew to testify how he came to see his uncle’s picture in the magazine. He testified he saw it browsing through the magazines in a local drug store’s magazine rack. He thought it was making fun of his uncle he bought a copy and gave it to his uncle. He testified his uncle became upset when he saw his picture in the magazine. The partner introduced copies of the original magazine and “best of” edition, the evidence about its circulation in South Carolina, and pointed out the price as $4.49 listed on the cover. He made note sales of the magazine made National Lampoon $34,000.00 in South Carolina and $4,500,000 nationally. Having laid the ground work, and piqued everyone’s interest, he then called Mr. Sinclair to the witness stand. The jurors sat upright in their jury box to get a good look at Mr. Sinclair as he walked to the witness stand. He was dressed in a suit and tie, more Sunday meeting than business, and wore his gray hair and wrinkles as signs of his hard, working class life. Sitting in the witness box, his feet didn’t touch the floor and, as he testified, swung back and forth like a child’s. His voice was a little high pitched, his facial expressions and hand gestures were animated, but not distractingly so. He captured everybody’s attention.
He testified he was paid $50.00 a week to appear in the Wizard of Oz but found the publicity and attention he received afterward to be too much. He testified he chose to leave the fleeting fame of the Wizard of Oz behind so he could lead a normal life and raise a family here in South Carolina. What brought the biggest smile to his face, and to the faces of the jurors, was his testimony about his family, all of whom were of normal size and sat in the front row of the courtroom. They were all ordinary, hardworking people, just like the jurors. He testified he was too old to serve in the Army when World War II broke out, so he proudly served his country in the Charleston Naval Shipyard building warships. He testified he did indeed weld in confined spaces, a job he described as hot, hard, and dangerous. He offered to show the scars he still carried from burning drips of burning metal but Judge Hemphill told him that wouldn’t be necessary. The jurors loved everything about him.
On cross examination Mr. Sinclair pretty much held his own. He never got angry or argumentative with the magazine’s lawyer but he did have trouble with one line of questioning. When asked which of the articles in the magazine he found to be pornographic, he admitted he never actually read the magazine and testified, just looking at the pictures, was enough for him. When asked who, aside from his nephew, had seen or read the magazine, he couldn’t name a single person.
When it was the magazine’s turn to present witnesses, their lawyer couldn’t help himself and called Lorne Michaels to testify and he turned out to be every bit the New York City howman. His posture, enunciation, and appearance were groomed perfection. The problem was so was his testimony, which came across as rehearsed and staged. The thrust of his testimony was the First Amendment protected free speech, parody, and satire. The lawyer apparently forgot to mention to Mr. Michaels that Saturday Night Live wasn’t broadcast in South Carolina, leaving Mr. Michael’s itching to tell the jury he produced the hottest, new late-night tv comedy show. In a non-responsive answer to a different question, Mr. Michaels announced to the jury he produced Saturday Night Live with his voice raising in a crescendo as he fully expecting the jurors to be suitably impressed. His ear to ear smile receded to a frown when his testimony was met with the juror’s stone faces and silence in the courtroom.
Like Mr. Sinclair, for the most part Mr. Michael’s held his own on cross-examination answering most questions with ease. My partner did a good job getting Mr. Michaels to commit to the idea the reason the First Amendment protects parody and satire was because parody and satire use humor to address serious public issues. Having boxed himself in, he soon found himself struggling to find words explaining what was funny about Mr. Sinclair serving his country during World War II. Judge Hemphill, a veteran of the war himself, clearly wasn’t amused. Then he was asked about one article in particular with the headline, Use Your Head On The Highway, Don’t Give It, thee partner held the accompanying pictures up in an open magazine before the jury showing a young woman leaning over a smiling driver’s lap followed by a picture of horrific wreckage strewn down the highway. “What’s funny about that?” the lawyer asked leaving Mr. Michael’s stammering until Judge Hemphill, not amused with that either, ruled sua sponte the question was inadmissible. It was too late and obvious to everyone the Winnsboro jury didn’t find the article funny in the slightest. The problem was Judge Hemphill wasn’t about to let the jury return a verdict based on passion or prejudice.
To limit the amount of damages the jury could award, Judge Hemphill dismissed our cause of action for false light invasion of privacy and, with it, Mr. Sinclair’s right to collect damages for embarrassment or wounded feelings, and his right to punitive dames to punish the magazine. He limited us to our cause of action for the appropriation of Mr. Sinclair’s likeness for financial gain. Based on Mr. Sinclair having only been paid $50 a week for his appearance as a munchkin and only 6.800 copies of the magazine having been sold in South Carolina, the jury awarded Mr. Sinclair actual economic damages of $6,800.00, one dollar for every magazine sold in the state. It may not seem like much, but Mr. Sinclair felt vindicated.
I don’t claim this was one of my cases. I was just an associate asked to do legal research. I wasn’t asked to sit second chair during the trial or to argue any points of law with the Judge. Still, it was my idea to bring Mr. Sinclair’s case as an invasion of privacy that won the day. It was my research and brief that withstood the magazine’s motion to dismiss for lack of jurisdiction. Most important of all, I learned I could represent the little guy and go toe to toe with any big league lawyer from New York City and hold my own.
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