320 S.E.2d 70 (1983)

Sue S. CRUMP
v.
BECKLEY NEWSPAPERS, INC.

No. 15804.

Supreme Court of Appeals of West Virginia.

November 10, 1983. Concurring in Part and Dissenting in Part May 4, 1984. Rehearing Refused July 11, 1984.

*74 John S. Hrko, Mullens, for appellant.

Higgins & Gorman and Robert S. Kiss, Beckley, for appellee.

*75 McGRAW, Chief Justice.

The appellant in this case, Sue S. Crump, appeals from an order of the Circuit Court of Raleigh County granting summary judgment for the defendant/appellee, Beckley Newspapers, Inc. She asserts that the trial court erred in granting summary judgment because issues of material fact existed which should have been submitted for jury consideration. We agree and reverse the decision of the trial court.

On December 5, 1977, the defendant published an article in one of its newspapers concerning women coal miners. Photographs of the plaintiff, a miner with the Westmoreland Coal Company, taken with her knowledge and consent, were used by the defendant in conjunction with the article. Her name was specifically mentioned, and her picture appeared with Jacqueline Clements, another miner. After publication of this article in 1977, Crump had no contact with the defendant, and the defendant did not request permission to use her picture or name in any other newspaper article.

On September 23, 1979, an article entitled "Women Enter `Man's' World" appeared in one of the defendant's newspapers. The article generally addressed some of the problems faced by women miners, and by women who desire employment in the mining industry. The article related incidents in which two Kentucky women were "`stripped, greased and sent out of the mine' as part of an initiation rite"; in which a woman miner in southwestern Virginia was physically attacked twice while underground; and in which one Wyoming woman "was dangled off a 200-foot water tower accompanied by the suggestion that she quit her job. She did." The article also discussed other types of harassment and discrimination faced by women miners. Although Crump's name was not mentioned in the article, her 1977 photograph was used,^[1] accompanied by a caption which read, "Women are entering mines as a regular course of action."

As a result of the unauthorized publication of Crump's photograph in conjunction with the article, she states in an affidavit submitted below that she was questioned by friends and acquaintances concerning the incidents contained in the article and concerning whether she had been the subject of any harassment by her employer or by fellow employees. She had, in fact, experienced no such harassment. Crump also states that the article caused one reader to ask her whether she had ever been "stripped, greased and sent out of the mine." She alleges that the unfavorable attention precipitated by the publication of her photograph in conjunction with the article has damaged her reputation and caused her a great deal of embarrassment and humiliation. Therefore, she seeks recovery from the defendant for damages resulting from their unauthorized publication of her photograph.

After receiving a letter from Crump complaining about the unauthorized use of her photograph, the defendant offered to either (1) print a story prepared by Crump, along with her picture, explaining her position in the matter; (2) print a letter to the editor written by Crump criticizing the way in which the story was handled; or (3) publish a clarification, identifying the woman pictured as the plaintiff, and stating that Crump had never experienced any of the problems mentioned in the article. Because Crump was temporarily unemployed and did not want to jeopardize her standing with her former employer, with whom she desired to resume employment when it became available, she did not wish to call any more attention to the matter. Therefore, she declined the newspaper's offers to clarify any false impression left by the article. Subsequently, on June 13, 1980, Crump filed an action in the Circuit Court of Raleigh *76 County against the defendant alleging, in substance, defamation and invasion of privacy.

Upon defendant's motion for summary judgment, the trial court held that (1) because the issue of women entering the coal industry was a matter of general public interest, the defendant had a qualified privilege to publish Crump's photograph in connection with the article; (2) because the article did not contain any false or defamatory statements or, in fact, make any direct reference to the plaintiff other than through the juxtaposition of her photograph with the article, the defendant acted in good faith and did not exceed or abuse its conditional privilege; and (3) therefore, the unauthorized publication of Crump's photograph did not constitute libel as a matter of law. Thus, it granted summary judgment for the defendant.

Because the trial court (1) limited its analysis of whether a qualified privilege existed to the content of the article, and did not adequately consider whether the use of plaintiff's photograph alone was privileged; (2) ruled as a matter of law, despite evidence from which different inferences and conclusions might reasonably be drawn, that the defendant did not abuse its privilege; and (3) failed to adequately consider invasion of privacy as an alternative theory of recovery, summary judgment was inappropriate, and we must therefore reverse.

I

The concept that a person's reputation in the community is precious^[2] and should not be injured with impunity had been well established since ancient times. Slander was expressly forbidden by the law of Moses. Exodus 20:16 (King James) ("Thou shalt not bear false witness against thy neighbour."); see also Deuteronomy 19:16-21 (King James); M. NEWELL, THE LAW OF DEFAMATION, LIBEL AND SLANDER 2-4 (1890). The Law of the Twelve Tables, compiled approximately three hundred years after the founding of Rome, provided that, "whosoever slanders another by words or defamatory verses, and injures his reputation, shall be beaten with a club." Id. at 6. Under Alfred the Great, King of the Saxons at the end of the ninth century, "the slanderer's tongue was excised unless he could redeem it by payment of his wer geld, which was the price on his life." A. HANSON, LIBEL AND RELATED TORTS 2 (1969), citing, Veeder, The History and Theory of the Law of Defamation, 3 Colum.L.Rev. 546, 549 (1903). Throughout the Middle Ages, the ecclesiastical courts exercised general jurisdiction over defamation, punishing it with penance. See W. PROSSER, THE LAW OF TORTS § 106, at 754-56 (1964). It was not until the reign of Henry VIII, that the common law courts began to exercise some jurisdiction over actions for defamation. By the end of the sixteenth century, however, common law courts exercised practically absolute jurisdiction over these actions. See Restatement (Second) of Torts § 568 comment b (1977).

From its adoption, our state constitution has provided for a cause of action for defamation. See W.VA. CONST. art. II, § 4 (1863). West Virginia's current constitutional provision states that, "No law abridging the freedom of speech, or of the press, shall be passed; but the legislature may by suitable penalties ... provide ... for the recovery, in civil actions, by the aggrieved party, of suitable damages for... libel, or defamation." W.VA. CONST. art. III, § 7. The importance of protection from reputational harm within our constitutional structure is also illustrated by the provision that, "The courts of this State shall be open, and every person, for an injury done to him, in his person, property *77 or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay." W.Va. Const. art. III, § 17 (emphasis added).

The adjudication of defamation actions has not been without difficulty. It has been said that,

No branch of the law has been more fertile of litigation than this (whether plaintiffs be more moved by a keen sense of honour, or by the delight of carrying on personal controversies under the protection and with the solemnities of civil justice), nor has any been more perplexed with minute and barren distinctions.

F. POLLOCK, THE LAW OF TORTS 243 (1929); see also Courtney, Absurdities of the Law of Slander and Libel, 36 Am.L. Rev. 552 (1902). Recently, the increased role played by the first amendment in defamation cases has heightened the sense of confusion surrounding their disposition. See Havalunch, Inc. v. Mazza, 294 S.E.2d 70, 73 (W.Va.1981). Despite these complexities, however, some of the basic elements of defamation causes of action and defenses have become fairly well defined.

In West Virginia, the essential elements for a successful defamation action by a private individual are (1) defamatory statements; (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting injury. See Havalunch, Inc. v. Mazza, 294 S.E.2d at 73-74; see also Restatement (Second) of Torts § 558 (1977). A statement may be described as defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559 (1977); see also syl. pt. 1, Sprouse v. Clay Communications, Inc., 158 W.Va. 427, 211 S.E.2d 674 (1975), cert. denied, 423 U.S. 882, 96 S.Ct. 145, 46 L.Ed.2d 107, reh. denied, 423 U.S. 991, 96 S.Ct. 406, 46 L.Ed.2d 311 (statements are defamatory if they tend to "reflect shame, contumely, and disgrace upon [the plaintiff]"). Direct defamatory statements are not an absolute prerequisite to recovery, however, because defamation may also be accomplished through inference, implication, innuendo or insinuation. See State v. Aler, 39 W.Va. 549, 20 S.E. 585 (1894); Johnson v. Brown, 13 W.Va. 71 (1878); see also Neal v. Huntington Pub. Co., 159 W.Va. 556, 223 S.E.2d 792, 796 (1976). In determining whether a particular defendant is liable to a private individual for defamation, in the absence of a privileged communication, the standard is one of negligence, and the conduct of the defendant is to be measured against what a reasonably prudent person would have done under the same or similar circumstances.^[3]See Havalunch, Inc. v. Mazza, supra; see also Restatement (Second) of Torts § 283 (1977).

A defamation defendant, of course, has various defenses which can be asserted. Two of these defenses, privilege and truth, allow a defendant to avoid all liability once established. There are two classes of privileges available in defamation actions: absolute and qualified. Absolute privilege is limited to those situations "where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives." W. PROSSER, THE LAW OF TORTS 796 (1964). This Court has stated,

*78 An absolute privileged communication is one in respect of which, by reason of the occasion on which, or the matter in reference to which, it is made, no remedy can be had in a civil action, however hard it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously.

City of Mullens v. Davidson, 133 W.Va. 557, 563, 57 S.E.2d 1, 6 (1949), quoting, 33 Am.Jur. Libel and Slander § 125. The scope of absolute privilege is confined within fairly narrow limits. "With a few exceptions... absolutely privileged communications are limited to legislative, judicial and quasi-judicial proceedings and other acts of the State." Parker v. Appalachian Electric Power Co., 126 W.Va. 666, 672, 30 S.E.2d 1, 4 (1944). Absolute privilege situations also include (1) where a plaintiff has consented to the defamation or instigated the publication of defamatory statements, see, e.g., Walters v. Linhof, 559 F.Supp. 1231 (D.Colo.1983); Johnson v. Buckner, 610 S.W.2d 406 (Mo.App.1980); Hollowell v. Career Decisions, Inc., 100 Mich.App. 561, 298 N.W.2d 915 (1980); (2) where the broadcast of statements made by political candidates is involved, see Farmers Educational and Co-op Union of America v. WDAY, Inc., 360 U.S. 525, 79 S.Ct. 1302, 3 L.Ed.2d 1407 (1959); and (3) where a petitioning of the government for a redress of grievances protected by the first amendment is involved, see Webb v. Fury, 282 S.E.2d 28 (W.Va.1981).

Qualified privileges are "based upon a public policy that it is essential that true information be given whenever it is reasonably necessary for the protection of one's own interests, the interests of third persons or certain interests of the public." Restatement (Second) of Torts, Topic 3: Conditional Privileges, Title A: Occasions Making a Publication Conditionally Privileged, Scope Note (1977). This Court has stated that, "A qualified privilege exists when a person publishes a statement in good faith about a subject in which he has an interest or duty and limits the publication of the statement to those persons who have a legitimate interest in the subject matter. Swearingen v. Parkersburg Sentinel Co., 125 W.Va. 731, 744, 26 S.E.2d 209, 215 (1943). See also England v. Daily Gazette Co., 143 W.Va. 700, 104 S.E.2d 306 (1958)." Mauck v. City of Martinsburg, 280 S.E.2d 216, 221 (W.Va.1981). Although motive is irrelevant when an absolute privilege is involved, a bad motive will defeat a qualified privilege defense. As this Court stated in Syllabus Point 1 of England v. Daily Gazette Co., supra, "In an action of libel based on a publication qualifiedly privileged, an abuse of the privilege destroys the protective characteristics of the privilege."

The primary manner in which a qualified privilege to publish defamatory statements may be defeated is by a showing of actual malice. See City of Mullens v. Davidson, supra. A qualified privilege, however, may also be defeated by a showing of (1) an intentional publication of false defamatory material, see Spencer v. Community Hospital of Evanston, 87 Ill. App.3d 214, 42 Ill.Dec. 272, 408 N.E.2d 981 (1980); Neufeld v. Schachner, 61 A.D.2d 952, 403 N.Y.S.2d 41 (1978); Mercedes-Benz of North America, Inc. v. Finberg, 58 A.D.2d 808, 396 N.Y.S.2d 260 (1977); (2) a publication of false defamatory material in reckless disregard for its truth or falsity, see Luster v. Retail Credit Co., 575 F.2d 609 (8th Cir.1978); Bender v. City of Seattle, 99 Wash.2d 582, 664 P.2d 492 (1983); Holter v. WLCY T.V., Inc., 366 So.2d 445 (Fla.App.1978); (3) a publication of false defamatory material made to persons who have no reason to receive the information, see Dillard Dept. Store, Inc. v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982); Shallenberger v. Scoggins-Tomlinson, Inc., 439 N.E.2d 699 (Ind.App.1982); Sullivan v. Birmingham, 11 Mass.App. 359, 416 N.E.2d 528 (1981); and (4) a publication of false defamatory material with a primary purpose unrelated to the purpose of the privilege, see Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979).

Some examples of the types of situations in which a qualified privilege has been recognized *79 include (1) the publication of defamatory material for the protection or advancement of the defendant's own legitimate interests, see, e.g., Haycox v. Dunn, 200 Va. 212, 104 S.E.2d 800 (1958) (defense against injury to one's reputation by another); Faber v. Byrle, 171 Kan. 38, 229 P.2d 718 (1951) (attempt to recover stolen property); Powell v. Young, 151 Va. 985, 144 S.E. 624 (1928) (protection of business against unreasonable competition); (2) the publication of defamatory material for the protection of the legitimate interests of others, see, e.g., Cash Drug Store v. Cannon, 47 S.W.2d 861 (Tex.Civ., App.1932) (physician speaking to protect interest of patient); Snyder v. Fatherly, 153 Va. 762, 151 S.E. 149 (1930) (agent or employee speaking to protect interest of principal or employer); Harriott v. Plimpton, 166 Mass. 585, 44 N.E. 992 (1892) (advising member of family not to marry one believed to be a scoundrel); (3) where the communication between the publisher and the recipient is designed to promote a mutual interest, see, e.g., Henderson v. Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 313, 98 Wash.2d 666, 585 P.2d 147 (1978) (communications between union members concerning qualifications of officers); Thomas v. Kaufmann's, 436 F.Supp. 293 (W.D.Pa.1977) (communications concerning employee between agent, servants and employees of the employer when honestly made); Dangberg v. Sears, Roebuck & Co., 198 Neb. 234, 252 N.W.2d 168 (1977) (discussion between store employees concerning suspected shoplifter); (4) where the communication is made to one discharged with the performance of a public duty, see, e.g., Zarate v. Cortinas, 553 S.W.2d 652 (Tex.Civ.App. 1977) (communication of alleged wrongful act to official authorized to protect the public against such acts); Danias v. Fakis, 261 A.2d 529 (Del. Super. 1969) (report to immigration authorities of suspected illegal presence); Fuson v. Fuson, 247 Ky. 380, 57 S.W.2d 42 (1933) (complaints made by parents concerning competence or conduct of teachers to members of school board); (5) reports of public proceedings, see, e.g., Morton v. Stewart, 153 Ga.App. 636, 266 S.E.2d 230 (1980) (reporting proceedings of judicial bodies); Medico v. Time, Inc., 509 F.Supp. 268 (E.D. Pa. 1980), aff'd, 643 F.2d 134 (3rd Cir.1981) (reporting substance of confidential Federal Bureau of Investigation report); Mathis v. Philadelphia Newspapers, Inc., 455 F.Supp. 406 (E.D.Pa.1978) (publication of photograph of individual identified by a police department as a suspect in a crime); and (6) fair comment on matters of public concern, see, e.g., Havalunch, Inc. v. Mazza, supra (discussion of matters of general public interest); England v. Daily Gazette Co., supra (commentary on the character and conduct of public officers and employees); Sweeney v. Baker, 13 W.Va. 158 (1878) (commentary on candidates for political office).

The second complete defense to an allegation of defamation is truth. Article III, § 8 of the West Virginia Constitution provides, "In ... civil suits for libel, the truth may be given in evidence; and if it shall appear to the jury, that the matter charged as libelous, is true, and was published with good motives, and for justifiable ends, the verdict shall be for the defendant." This formulation is a somewhat modified form of the traditional common law defense. See W. PROSSER, THE LAW OF TORTS 824 (1964). Under this provision, the alleged defamatory communication must not only be true, but must also have been published "with good motives, and for justifiable ends." See Michaelson v. Turk, 79 W.Va. 31, 90 S.E. 395 (1916). If these three criteria are established, even if the communication complained of is defamatory and actual malice is present, the plaintiff cannot recover. See England v. Daily Gazette Co., 143 W.Va. at 716, 104 S.E.2d at 315.

One important partial defense in actions for defamation is that of mitigation. Three types of mitigating circumstances have been recognized in West Virginia. In Syllabus Point 6 of Alderson v. Kahle, 73 W.Va. 690, 80 S.E. 1109 (1914), this Court stated, "[I]ntoxication of the defendant at the time of his use of the slanderous words *80 is a mitigating circumstance proper for the consideration of the jury in estimating the damages." Similarly, in Syllabus Point 7 of Alderson, the Court stated, "Provocation by the plaintiff, inducing the utterance of the slanderous words, is a mitigating circumstance also." Finally, in Milan v. Long, 78 W.Va. 102, 105, 88 S.E. 618, 619 (1916), the Court held that while a retraction or apology does not exonerate a publisher from liability for defamation, it is a mitigating factor in the assessment of damages.

Turning to the facts surrounding the present case, it is well established that although libel is generally perpetrated by written communication, it also includes defamation through the publication of pictures or photographs. See Burton v. Crowell Pub. Co., 82 F.2d 154 (2d Cir.1936); Thayer v. Worcester Post Co., 284 Mass. 160, 187 N.E. 292 (1933); Dunlop v. Dunlop Rubber Co., 1 Ir.Rep. 280 (1920); Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1904); Morrison v. Smith, 177 N.Y. 366, 69 N.E. 725 (1904); De Sando v. New York Herald Co., 88 A.D. 492, 85 N.Y.S. 111 (1903); DuBost v. Beresford, 2 Camp. 511, 170 Eng.Rep. 1235 (1810).

In Wandt v. Hearst's Chicago American, 129 Wis. 419, 109 N.W. 70 (1906), the defendant newspaper published an article accusing a certain person of being a "suicide fiend," mistakenly accompanied by a photograph of the plaintiff. The Supreme Court of Wisconsin held that, even though the name of the person referred to as a "suicide fiend" was given, the juxtaposition of the plaintiff's photograph with the article was, in effect, a statement that the plaintiff was a "suicide fiend." 129 Wis. at 421, 109 N.W. at 71.

In Peck v. Tribune Co., 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960 (1909), the plaintiff's picture was published by the defendant accompanied by a caption which read, "Nurse and Patients Praise Duffy's — Mrs. A. Schuman, One of Chicago's Most Capable and Experienced Nurses, Pays an Eloquent Tribute to the Great Invigorating, Life-Giving and Curative Properties of Duffy's Pure Malt Whiskey ...," followed by an endorsement which read, "After years of constant use of your Pure Malt Whiskey, both by myself and as given to patients in my capacity as nurse, I have no hesitation in recommending it as the very best tonic and stimulant for all weak and rundown conditions ...." The plaintiff "was not Mrs. Schuman, was not a nurse, and was a total abstainer from whiskey and all spirituous liquors." 214 U.S. at 188, 29 S.Ct. at 555, 53 L.Ed. at 962. In an opinion by Justice Holmes, the United States Supreme Court reversed the granting of a directed verdict for the defendant by the trial court, and held that the plaintiff was entitled to prove her case and have the issue of whether the unauthorized use of her picture was libelous go to the jury. 214 U.S. at 190, 29 S.Ct. at 556, 53 L.Ed. at 963.

As noted previously, this Court has recognized that defamation may be accomplished through inference, implication, innuendo or insinuation, as well as through direct reference. In Syllabus Point 4 of Neal v. Huntington Pub. Co., supra, this Court stated, "Whether a written defamatory statement refers to a particular plaintiff, normally, is a question of fact for a jury." As the Wandt and Peck cases demonstrate, even if the alleged defamatory material refers to another, if the implication is one of identity, the plaintiff may recover. Although it does not appear in the present case that the article involved in any way implied that the plaintiff had experienced any of the types of harassment described therein, her allegations, supported by affidavit, were sufficient to raise a genuine issue of material fact for jury consideration.

In addressing whether a qualified privilege existed which supported publication of Crump's photograph, the trial court held that because women entering the coal industry was a matter of general public interest, the publication constituted "fair comment." Without passing upon the issue of whether a qualified privilege did exist in this case, the Court notes that *81 because the trial court limited its analysis to the content of the article, and did not consider whether the use of Crump's photograph alone was privileged, its finding of a qualified privilege was inappropriate.

An appropriate analysis of the status of the publication of Crump's photograph as an illustration to the article involved requires an inquiry into its relevance, impact and value. Simply holding that the subject matter of the article was privileged was insufficient. A more thorough analysis of the relationship between the photograph and the article is required. Such factors as whether it adds credibility, contributes to reader perception and understanding, or draws attention to the story are all relevant to such a determination. In Syllabus Point 3 of Swearingen v. Parkersburg Sentinel Co., supra, this Court stated, "The existence or nonexistence of a qualifiedly privileged occasion, ... in the absence of controversy as to the facts, [is a] question[] of law for the court." Upon remand, the issue for the trial court will be whether the unauthorized publication of Crump's photograph was sufficiently in the public interest due to its relationship to the subject matter of the article or whether its publication was supported by some other qualified privilege, and not whether the content of the article apart from its connection with the publication of Crump's photograph was privileged.

In addition to its finding of a qualified privilege, the trial court also held that the defendant did not abuse its privilege to publish Crump's photograph. In Parker v. Appalachian Electric Power Co., 126 W.Va. at 672, 30 S.E.2d at 4, this Court stated, "Whether a conditionally privileged occasion was exceeded is a question of law for the court or fact for the jury, and depends upon the absence or existence of a controversy as to facts bearing thereon." See also Swearingen, supra; syl. pt. 2, Stewart v. Riley, 114 W.Va. 578, 172 S.E. 791 (1934). In the present action, the plaintiff claims that the defendant published the alleged defamatory statements either knowing them to be false or in reckless disregard for their truth or falsehood. The defendant does not directly respond to these allegations because it contends that the article did not imply that the plaintiff suffered any of the harassment described and was therefore not false. If upon remand the trial court finds a qualified privilege to be present, this controversy as to the underlying truth or falsity of the statements contained in the presentation of Crump's photograph with the article makes the issue of abuse of privilege one for the jury. The key factual issue upon remand in relationship to Crump's defamation cause of action is whether the article involved implied that she had suffered any harassment in the course of her employment in the mining industry by its juxtaposition of her photograph.

II

Although closely related, defamation and invasion of privacy remain distinct theories of recovery entitled to separate consideration. Possessing different historical antecedents, each requires different elements of proof. Despite the lack of clarity in the plaintiff's complaint, it is clear that it sufficiently stated a cause of action for invasion of privacy meriting its consideration by the trial court. Therefore, it is necessary to develop the theory and to analyze the facts presented in order to determine whether genuine issues of material fact remain.

Compared to the ancient origins of the law of defamation, the law of privacy is a relatively recent phenomenon. In 1890, in what is perhaps the most influential article ever published in an American law journal, Samuel D. Warren and Louis D. Brandeis propounded a concept of a right to privacy which they asserted justified an independent tort remedy. Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). Their classic definition of that right was that it was based on "the right `to be let alone.'"^[4]Id. at 195, quoting, T. COOLEY, *82 THE LAW OF TORTS 29 (1888); see also syl. pt. 1, Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958). Somewhat paradoxically, although Warren's and Brandeis' primary object was "to establish that the right of privacy was part of the existing common law; in the process of searching for this right, they succeeded in inventing it." Felcher & Rubin, Privacy, Publicity, and the Portrayal of Real People by the Media, 88 YALE L.J. 1577, 1581 (1979). In only thirteen years, New York became the first state to enact a statutory privacy action provision, after a public outcry to reverse an unpopular court decision denying a privacy recovery to a young woman whose picture was used to advertise a brand of flour without her permission. 1903 N.Y.LAWS ch. 132, §§ 1-2 [currently found at N.Y.CIV.RTS.LAW §§ 50-51 (McKinney 1976)]; Roberson v. Rochester Folding Box Co., 171 N.Y. 538,