MEMORANDUM OPINION

HEYBURN, District Judge.

Plaintiffs claims arise out of the unauthorized publishing of her photograph by Defendant, Paisano Publications, and the subse *384 quent use of a similar photo design on shirts sold and manufactured by Defendant, Shurte Graphics, Inc., d/b/a T-Shurte’s. Each Defendant now moves to dismiss Plaintiffs claims against them. To consider these motions requires the Court to predict what elements of proof Kentucky courts may require to sustain various causes of action related to unauthorized appropriation of a person’s image or likeness. The Court will dismiss all Plaintiffs claims, except her claim of appropriation of image.

I.

Plaintiff creates “unique” clothing designs and displays these designs at bikers’ events. At a Chillicothe, Ohio, bikers’ festival, Plaintiff wore one of her distinctive creations, which displayed her bottom through fishnet fabric that replaced cut out portions of her blue jeans. In May of 1993, Paisano Publications’ (“Paisano’s”) In the Wind magazine published a picture of Plaintiffs backside as part of a photo essay of the Chillicothe festival. The picture does not identify Plaintiff. A year and a half later, in December of 1994, Paisano’s Easyriders magazine published T-Shurte’s advertisement for a T-shirt with a similarly-clad backside, which Plaintiff claims portrayed her likeness. 1 T-Shurte’s may have sold several hundred or more of the shirts.

Plaintiff alleges that Paisano’s provided the In the Wind photo to T-Shurte’s to display her likeness on T-shirts and that Paisano’s received part of the income from the sale of each T-shirt. Plaintiff asserts five causes of action arising out of this appropriation: (1) invasion of privacy; (2) commercial exploitation of a likeness; (3) negligent licensing of an image without the owner’s consent; (4) misappropriation of an image for commercial gain; and (5) unjust enrichment. 2 Plaintiff also seeks leave to file a Second Amended Complaint adding claims for interference with prospective business relations and for intentional infliction of emotional distress.

II.

When considering a motion for dismissal, the Court must determine if a reasonable jury could find for Plaintiff under any set of facts. The Court also must accept the allegations of the complaint as true and should dismiss a claim only if it appears that the record as a whole could not lead a rational trier of fact to give Plaintiff the relief requested. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989).

Plaintiff asserts that her designs are unique and that, because of their uniqueness, her friends and customers recognize them. When evaluating Defendants’ Motions to Dismiss, the Court must examine Plaintiffs claim, therefore, in light of the assumption that her designs are unique and that she sells these designs to customers who recognize them as hers.

All of Plaintiffs claims center around her allegation that Defendants appropriated her image. Kentucky has long recognized the invasion of privacy as an actionable tort. Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364 (1909). Over the years since Foster-Milbum, this theory of law has evolved, and in 1981, the Kentucky Supreme Court formally adopted the definition from the Restatement (Second) of Torts (1976). McCall v. Courier-Journal & Louisville Times, 623 S.W.2d 882, 887 (Ky.1981). Under the Restatement definition, four distinct causes of action exist, each of which is classified loosely as invasion of privacy:

(2) The right of privacy is invaded by

(a) unreasonable intrusion upon the seclusion of another ...; or

(b) appropriation of the other’s name or likeness ...; or

(c) unreasonable publicity given to the other’s private life; or

*385 (d) publicity that unreasonably places the other in a false light before the public....

Restatement (Second) of Torts (1976). Tn determining if Plaintiff states a meritorious claim for invasion of privacy, this Court must examine each of the four possible causes of action for invasion of privacy.

A.

First, the Court must consider whether Defendants unreasonably intruded upon Plaintiffs seclusion. This is not a case where Plaintiff sought to keep her designs secret and wore them only to very private functions. 3 Instead, Plaintiff wore her unusual clothing at large public events, namely bikers' conventions, and in front of large crowds of people. If Plaintiff believed these designs were truly unique, she certainly might have expected that someone might photograph her in this clothing. Consequently, no reasonable jury could possibly conclude that Paisa-no's taking of these photos was an unreasonable intrusion upon her seclusion.

Second, the Court must consider whether Defendants gave unreasonable publicity to Plaintiffs private life. Plaintiff has stated that her friends and customers recognize her designs. If Plaintiff wears the clothing designs to attract attention to herself as well as the designs, then she has voluntarily taken them out of her private life and injected them into public view. Given the facts of this case, no reasonable jury could construe any attention given to Plaintiffs wearing of these designs as unreasonable publicity of Plaintiffs private life.

Third, the Court must consider whether the publicity placed Plaintiff in a false light. The two basic requirements to sustain this action are: (1) the false light in which the other was placed would be highly offensive to a reasonable person; and (2) the publisher has knowledge or acted in reckless disregard of the falsity of the publicized matter. McCall v. Courier-Journal & Louisville Times, 623 S.W.2d at 888. It is sufficient that the publicity attributes to the plaintiff characteristics, conduct or beliefs that are false. Id. Plaintiff voluntarily wore this clothing to public events. Defendant photographed her exactly as she appeared at the bikers' event. Paisano's made no assertions about her character; in fact, they did not identify her. Plaintiffs own conduct and Defendant's unoffensive characterization leads to the certain conclusion that there was no false light invasion of privacy in this matter.

B.

In her motion for summary judgnient, Plaintiff concentrates on the fourth possible cause of action for invasion of privacy-Defendants' unauthorized appropriation of her likeness. Restatement (Second) of Torts, § 652A(2)(b). Among Plaintiffs claims are those for commercial exploitation of her likeness, negligent licensing of her image without her consent, and misappropriation of her image for commercial gain. These claims merely recast the claim for damages based on the improper appropriation of another's name or likeness.

Not all jurisdictions recognize the tort of unauthorized appropriation of likeness. But the Kentucky Supreme Court has suggested that it is available by adopting the Restatement view of invasion of privacy. Kentucky courts have not specifically addressed the elements of proof required to support this cause of action, however. Other courts have referred to the unauthorized use of another's likeness as the "appropriation of the right of publicity." Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1098 (9th Cir.1992) (appropriation of a voice is "a species of violation of the `right of publicity,' the right of a person whose identity has commercial value-most often a celebrity-to control the use of that identity"); Lerman v. Flynt Distributing Co., Inc., 745 F.2d 123, 133 (2nd Cir.1984) ("[T]he right to publicity is essentially identical to the right to be free from commercial appropriation"); see also Restatement (Third) of Unfair Competition § 46, comment *386 a (“The interest protected by these rules is often described as the ‘right of publicity.’ ”).

A “right of publicity” was first identified in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2nd Cir.1953) (A baseball player’s legal interest in the publication of his picture on cards “might be called a ‘right of publicity”’ under New York law). The Restatement (Second) of Torts was adopted in 1976. About the same time, the United States Supreme Court, recognizing a similar right under Ohio law, stated that the right of publicity gave a person “personal control over commercial display and exploitation of his personality and the exercise of his talents.” Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 570, 97 S.Ct. 2849, 2854, 53 L.Ed.2d 965 (1977). The Zacchini Court noted that this interest does not involve a “false light” allegation, but rather ensures that the owner of the right receives the benefit of any commercial exploitation.

Plaintiff here makes a similar assertion. She alleges that Defendants have deprived her of the commercial benefit of her “image” by appropriating the image for their own commercial gain. 4 The Second Circuit has defined this issue as one in which the “plaintiff is not so concerned that the use occurs; [s]he simply wants to be the one to decide when and where, and to be paid for it.” Lerman v. Flynt Distributing Co., Inc., 745 F.2d at 134. This statement perfectly articulates Plaintiff’s position in this case. She merely wants to be compensated for the use of her likeness by Defendants for their own commercial gain.

Two distinct uses of Plaintiff’s likeness could be the source of a claim under a right of publicity: (1) Paisano’s printed her photograph in their photo essay of the bikers’ event; and (2) T-Shurte’s used a similar likeness on their T-shirts. The Court need only concern itself with the second use. 5 As to that issue, Defendants argue that such claims belong only to persons of celebrity status and that “plaintiff is no Elvis Presley, Muhammad Ali or Bruce Springsteen.”

Having reviewed § 652A(2)(b) of the Restatement (Second) of Torts and the cases that discuss a right of publicity claim, the Court concludes the following principles should govern Plaintiff’s claim for appropriation of likeness. Plaintiff must prove that she has developed a property interest in her likeness or her designs by proving that her image has commercial value and that she intended to profit from that value. Without such proof, Plaintiff cannot show that Defendants exploited the fame or fortune that Plaintiff has developed. Id. To be sure, such proof is normally found in eases involving celebrities. But celebrity status should not be an absolute prerequisite. 6 This Court concludes the best rule is that the remedy available in right of publicity claims belongs to those whose identity has commercial value. Commercial value may be established by proof of (1) the distinctiveness of the identity and by (2) the degree of recognition of the person among those receiving the publicity. *387 Waits v. Frito-Lay, Inc., 978 F.2d at 1098, 1101-02. In order to succeed in her claim, Plaintiff must have a notoriety which is strong enough to have commercial value within an identifiable group.

The Court has grave doubts that Plaintiff can establish the proof necessary to show a sufficiently wide notoriety for this case to go forward. The photographic replica does not display Plaintiffs face; because the photo was taken from behind and includes only her backside from her waist to her thighs. Plaintiffs cause of action under a right of publicity claim may arise only if her image is distinctive enough that her friends and customers recognized the replica drawing on the T-shirt and identified this drawing as her “image.”

Plaintiffs assertions that friends and customers recognize her designs and that these unique designs have commercial value overcomes Defendants’ motions to dismiss at this early stage. If the recognition of Plaintiffs image is sufficiently clear and sufficiently broad-based, it may be an unlawful appropriation for which Plaintiff could receive damages. For these reasons, Defendants’ Motions to Dismiss the claim for appropriation of image are denied at this time. 7

III.

Plaintiff has also filed a Motion to Amend the Complaint in order to add two more claims: (1) intentional infliction of emotional distress; and (2) intentional interference with prospective business relations. Kentucky has adopted the Restatement (second) of Torts § 46 view that defines outrageous conduct causing severe emotional distress. To prevail on the first claim, Plaintiff must prove: (1) that the conduct was intentional; (2) that the conduct caused severe emotional distress; and (3) that the conduct was outrageous. Craft v. Rice, 671 S.W.2d 247 (Ky.1984). On its face, the Complaint contains no facts from which a reasonable jury could conclude that Defendants’ conduct was “outrageous.” For reasons previously stated, there is no evidence nor any reason to believe that the publication of the T-shirt caused Plaintiff any emotional distress. Allowing Plaintiff to add this cause of action would merely prolong the litigation process and require the unnecessary expenditure of legal resources. Therefore, the Court denies Plaintiffs Motion to Add Intentional Infliction of Emotional Distress as a Claim.

Plaintiff also seeks to add a claim for Intentional Interference with Prospective Business Relations. To prevail on such a claim, Plaintiff must show that Defendants intentionally interfered with Plaintiffs business prospects and that this interference caused Plaintiff to lose profits to which she would have otherwise been entitled. The interference must have been intentional and must have occurred by the use of improper means. Cullen v. South East Coal Co., 685 S.W.2d 187 (Ky.1984). Moreover, to support such a claim, Plaintiff must show that Defendants’ actions prevented her from marketing these same or similar designs and from receiving these profits.

In this case, there is no indication that Plaintiff would have marketed these T-shirts herself or that by selling these shirts, Defendants deprived her of profits to which she was otherwise entitled. The mere allegation that Plaintiff might have received some benefit from her “unique” designs is not, without more, a sufficient basis to support a cause of action for intentional interference with prospective business relations.

Therefore, the Court will deny Plaintiffs request to amend her complaint.

IV.

Plaintiff has moved for partial summary judgment on the issue of liability. Plaintiffs *388 only surviving claim is for appropriation of image. At this time, the record contains little evidence to support these claims. Using the recognized standard for summary judgment, and construing the facts in a light most favorable to the nonmoving party, this Court concludes that for all the reasons discussed above, the record does not support summary judgment.

The Court will enter an appropriate order.

ORDER

This case is before the Court on various pending motions. The Court has issued a Memorandum Opinion and being otherwise sufficiently advised,

IT IS HEREBY ORDERED that all claims in Plaintiffs Complaint and First Amended Complaint are dismissed with prejudice except the claim for appropriation of image for commercial gain against Paisano Publications, Inc. and Shurte Graphics, Inc.

IT IS FURTHER ORDERED that Plaintiffs motion for leave to amend her Complaint is DENIED.

IT IS FURTHER ORDERED that Plaintiffs Motion for Partial Summary Judgment is DENIED.

IT IS FURTHER ORDERED that the parties shall have to and including October 15, 1995, to place in the record evidence relevant to Plaintiffs claim for appropriation of likeness. Thereafter, Defendants may file any appropriate dispositive motions. If the motion is denied, the parties will be allowed additional time to complete discovery prior to trial.

OPINION

HUG, Circuit Judge.

Medical Laboratory Management Consultants (“Medical Lab”) and John Devaraj (“Devaraj”), a founder and owner of Medical Lab, (collectively “Plaintiffs”) brought this action against American Broadcasting Companies (“ABC”) and individuals allegedly involved in producing the segment Rush to Read for ABC’s television program PrimeTime Live (collectively “Defendants”). The district court, exercising diversity jurisdiction under 28 U.S.C. § 1332, granted summary judgment in Defendants’ favor on Devaraj’s claim of intrusion upon his seclusion, Medical Lab’s claims of trespass and tortious interference with contractual relations and prospective economic relations, and Plaintiffs’ claims for punitive damages. Plaintiffs now appeal the district court’s resolution of these claims. We have jurisdiction under 28 U.S.C. § 1291 over Plaintiffs’ timely appeal of the district court’s judgment, which the court entered pursuant to Federal Rule of Civil Procedure 54(b). For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

This action arises out of the videotaping and broadcast of a television segment enti-*810tied Rush To Read for ABC’s television program’ PrimeTime Live, which uses undercover, investigative journalists to present “inside” stories of a sensational nature. Rush To Read focused on medical laboratories that analyze women's pap smears, highlighting what it perceived to be the pressures that such laboratories place on cytoteehnologists1 to process pap smear slides quickly, and the resulting frequency of testing errors by such laboratories. The television segment reported the results of a study in which four laboratories, including Medical Lab, were each asked to analyze 623 pap smear slides. According to Rush To Read, Medical Lab, which was not singled out by name, but referred to only as a “lab in Arizona,” failed to identify cervical cancer on several of the slides. The television segment stated that, when told of the study results, Devaraj, whom the segment did not name, but referred to only as the manager of the Arizona laboratory, said that “if mistakes were made it was an unusual circumstance, and he vowed not to take on such a large case load again.” Rush To Read was 27 minutes in length, two minutes of which discussed Medical Lab as a “lab in Arizona,” and 52 seconds of which used videotape taken inside Medical Lab. The videotape showed Devaraj seated, stating that the cytoteehnologists that work at Medical Lab also work at other laboratories.

To obtain this content for Rush To Read, ABC producer Rhondi. Charleston (“Charleston”), posing as a representative of a fictitious Michigan women’s health clinic, contacted Medical Lab and arranged to have the 623 slides processed over a weekend. Another ABC producer, Robbie Gordon (“Gordon”), telephoned Devaraj to arrange a meeting at Medical Lab on the day that the slides were scheduled to arrive there. Gordon, who had no prior contact with Medical Lab, represented that she was a cytotechnologist from Georgia who wanted to start a pap smear laboratory. Gordon stated that she would be in Phoenix in a few weeks to visit friends or relatives, and asked whether she might visit Medical Lab to learn more about the pap smear testing industry. Devaraj asked Gordon a few questions, such as “Who are you?” and “Do you have enough funds available?,” after which he agreed to schedule a meeting because he thought that she might be able to provide Medical Lab with some business.

On the day of the meeting, Gordon arrived with Jeff Cooke (“Cooke”), who claimed that he was a computer expert, but really was an undercover camera specialist, and with another ABC representative, who stated that she was an administrator or business manager.2 With hidden cameras located in his wig, Cooke filmed the entire visit to Medical Lab.

The three ABC representatives entered Medical Lab through an unlocked door that led into a reception room. Devaraj invited them to, and they were escorted to, a conference room in Medical Lab’s administrative offices. These offices adjoin the laboratory portion of Medical Lab, which is the portion open to the public that serves patients needing blood tests or other laboratory work done. The conference room had windowed French doors that were shut for the duration of the meeting. De-varaj testified that he typically used the conference room only for private conversation and meetings of a confidential nature. Devaraj and the three ABC representatives spoke generally about the pap smear testing industry, about Medical Lab, and about Gordon’s supposed plans to open her *811own laboratory. Devaraj did not reveal any personal information about himself, and at no point did Devaraj request that any of the matters discussed be kept confidential. Devaraj then invited the ABC representatives on a tour of Medical Lab, an invitation that Devaraj occasionally made to prospective customers, physicians, and other authorized persons. Medical Lab employees were present for portions of the conversation during the tour.

Over the weekend that Medical-Lab processed the 623 pap smear slides, ABC parked a van in the Medical Lab parking lot in order to videotape cytotechnologists as they entered and left the building. ABC stationed the van there to determine whether Medical Lab was complying with federal law, which bars- cytotechnologists from reading more than 100 pap smears in eight hours, and prorates the 100-slide ceiling for shorter work days. See 42 C.F.R. § 493.1257(b).

After Rush To Read aired on May 19, 1994 and again on or about September 1, 1994, Devaraj, his wife, and Medical Lab filed suit in Arizona superior court against ABC, KTVK-TV, the Phoenix television station that showed Rush To Read, and several individuals, including Charleston and Gordon, that allegedly were involved in producing Rush To Read. Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 931 F.Supp. 1487, 1490 (D.Ariz.1996) (“Med.Lab.I”). The defendants removed the action to federal court on the basis of diversity of citizenship, and moved to dismiss a number of the complaint’s claims. Id. The district court dismissed all of the claims against KTVK-TV, the invasion of privacy claims asserted by Medical Lab and Devaraj’s wife, as well as claims of public disclosure of private facts, conspiracy, intentional and negligent infliction of emotional distress, trade libel, and unfair business practices. Id. at 1491-94.

Devaraj and Medical Lab then filed a first amended complaint, alleging intrusion upon seclusion, fraud, tortious interference with contractual relations and prospective economic relations, trespass, defamation, false light invasion of privacy, and violation of the federal eavesdropping statute. Plaintiffs later voluntarily dismissed the defamation and false light invasion of privacy claims. Defendants moved for summary judgment on all of the remaining claims and on all punitive damages claims. Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 30 F.Supp.2d 1182, 1186 (D.Ariz.1998) (“Med.Lab.II ”). Plaintiffs cross-moved for partial summary judgment on the fraud claim. Id. at 1201. The district court granted Defendants’ summary judgment motion on all claims but the fraud claim, which the court granted in part and denied in part. Id. at 1209. The court denied Plaintiffs’ motion for partial summary judgment on the fraud claim. Id. Pursuant to Federal Rule of Civil Procedure 54(b), the district court entered final judgment for Defendants on all claims but the fraud claim. Plaintiffs subsequently dismissed their fraud claim voluntarily without prejudice. Plaintiffs now appeal the district court’s grant of summary judgment on Devaraj’s claim of intrusion upon his seclusion, Medical Lab’s claims of trespass and tortious interference with contractual relations and prospective economic relations, and their claims for punitive damages.

ANALYSIS

We revieiu de novo the district court’s grant of summary judgment. Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001). We must determine, viewing the evidence in the light most favorable to Plaintiffs, the non-moving parties, whether any genuine issues of material fact exist, and whether the *812'district court correctly applied the relevant substantive law. Id. Because this action was removed to federal district court under diversity jurisdiction, we apply the substantive law of Arizona, the forum state. Stanford Ranch, Inc. v. Md. Cas. Co., 89 F.3d 618, 624 (9th Cir.1996). We note initially that the Arizona courts have not yet had the opportunity to apply Arizona law to circumstances like those presented by this case. “When a decision turns on applicable state law and the state’s highest court has not adjudicated the issue, a federal court must make a reasonable determination of the result the highest state court would reach if it were deciding the case.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 885 n. 7 (9th Cir.2000) (quoting Aetna Cas. & Sur. Co. v. Sheft, 989 F.2d 1105, 1108 (9th Cir.1993)). “[W]e must use our best judgment to predict how that court would decide it.” Capital Dev. Co. v. Port of Astoria, 109 F.3d 516, 519 (9th Cir.1997) (quoting Allen v. City of Los Angeles, 92 F.3d 842, 847 (9th Cir.1996)).

I. Intrusion Upon Seclusion.

Devaraj asserts that Defendants’ covert videotaping of his conversation with the three undercover ABC representatives during their , visit to Medical Lab is actionable under the tort of intrusion upon seclusion. The Arizona Supreme Court has recognized the invasion of privacy torts laid out in the Restatement (Second) of Torts §§ 652A et seq., which include the tort of intrusion upon seclusion, see Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d 781, 788 (1989), and at least one Arizona Court of Appeals decision has applied the tort of intrusion upon seclusion. See Hart v. Seven Resorts Inc., 190 Ariz. 272, 947 P.2d 846, 853-54 (Ct.App.1997). The Arizona courts generally follow the Restatement in the absence of Arizona authority on an issue. Reed v. Real Detective Publ’g. Co., 63 Ariz. 294, 162 P.2d 133, 137 (1945); Campbell v. Westdahl, 148 Ariz. 432, 715 P.2d 288, 292 (Ct.App.1985). Consequently, we look to the Restatement for guidance regarding how the Arizona Supreme Court would resolve Devaraj’s claim.

The Restatement (Second) of Torts § 652B, which sets forth the tort of intrusion upon seclusion, states: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Rest. (2d) Torts § 652B. In a comment to § 652B, the Restatement indicates: “The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.” Rest. (2d) Torts § 652B, cmt. c. “There is likewise no liability unless the interference with the plaintiffs seclusion is a substantial one, of a kind that would be highly offensive to the ordinary man, as the result of conduct to which the reasonable man would strongly object.” Rest. (2d) Torts § 652B, cmt. d.

Courts have interpreted § 652B to require a plaintiff to prove (1) an intentional intrusion into a private place, conversation, or matter ■ (2) in a manner highly offensive to a reasonable person. See Sanders v. Am. Broad. Cos., 20 Cal.4th 907, 85 Cal.Rptr.2d 909, 978 P.2d 67, 71 (1999); People for the Ethical Treatment of Animals ("PETA”) v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269, 1279 (1995). To prevail on the first prong, the plaintiff must show (a) an actual, subjective expectation of seclusion or solitude in the place, conversation, or matter, and (b) *813that the expectation was objectively reasonable. PETA, 895 P.2d at 1279; Kemp v. Block, 607 F.Supp. 1262, 1264 (D.Nev.1985); see also United States v. McIntyre, 582 F.2d 1221, 1223(9th Cir.1978). The district court granted Defendants’ motion for summary judgment on Devaraj’s claim of intrusion upon his seclusion on three separate grounds. The district court concluded that any privacy expectation that Devaraj might have had in his conversation with the ABC representatives was not objectively reasonable. See Med. Lab. II, 30 F.Supp.2d at 1189. The district court also found that the alleged intrusion was not highly offensive to a reasonable person. See id. at 1191. Alternatively, the court held that Devaraj failed to state a claim for intrusion upon his seclusion because he identified no damages from the alleged intrusion apart from those resulting from the publication of Rush To Read. See id. at 1191-2.

A. Devaraj’s Expectation of Privacy.

Devaraj identifies his subjective expectation of privacy as an expectation of privacy in the location of his conversation with the undercover ABC representatives, an expectation of privacy in the contents of the conversation, and an expectation that the ABC representatives were not videotaping the conversation for broadcast to the general public. The subjective expectation of privacy may be tested by any outward manifestations that Devaraj expected his dealings with the ABC representatives to be private. See Kemp, 607 F.Supp. at 1264. “A comparison of what precautions he took to safeguard his privacy interest with the precautions he might reasonably have taken, is appropriate.” Id. (citing Dow Chem. Co. v. United States, 749 F.2d 307, 312-13 (6th Cir.1984)).

1. Location of his Conversation with ABC Representatives

Devaraj contends that he had a subjective expectation of privacy in Medical Lab’s administrative offices where he conducted his meeting with the ABC representatives and gave them a tour. Medical Lab was a semi-public place of business. Although the laboratory portion of Medical Lab was open to the public, Medical Lab’s administrative offices were open only to employees and invited individuals. Deva-raj, however, extended such an invitation to the three ABC representatives, who were strangers to Devaraj. Devaraj’s only knowledge of the three was based upon Gordon’s statements that she was a cyto-technologist interested in starting her own laboratory, and upon statements that the other two ABC representatives would be involved in the computer and business administration aspects of Gordon’s laboratory.

Devaraj’s willingness to invite these strangers into the administrative offices for a meeting and then on a tour of the premises indicates that Devaraj did not have an objectively reasonable expectation of solitude or seclusion in the parts of Medical Lab that he showed the ABC representatives.

Devaraj’s very different attitude regarding his personal office space demonstrates this expectation of privacy with respect to the portions of Medical Lab that the ABC representatives visited was not objectively reasonable. At one point during the tour of the premises, Gordon with Cooke not too far behind her walked towards Deva-raj’s office, the door to which was slightly ajar. Devaraj stopped Gordon, indicating that he did not want her to enter his office, and Gordon complied with his request.3 *814Devaraj’s conduct reflects that he considered his office a place sufficiently private and personal that he did not want Gordon, a stranger, to go into it. By contrast, Devaraj’s ready exposure of other parts of Medical Lab’s administrative offices to the ABC representatives signals that he did not regard these parts as private places. See PETA, 895 P.2d at 1281 (an animal trainer had no subjective expectation of privacy in a hotel’s backstage area where “[h]e had nothing to hide — nothing to be private about”). Thus, the ABC representatives’ visit to and tour of Medical Lab’s administrative offices did not intrude upon Devaraj’s reasonably expected seclusion.

2. Contents of his Conversations with ABC Representatives

Devaraj also claims that he had an expectation of privacy in the contents of his conversation with the ABC representatives, particularly in the contents of the conversation that transpired in the conference room. To support this expectation, Devaraj asserts that the conversation involved his private affairs and took place mostly behind closed doors in a conference room that he typically used for private conversation.

The transcript of the recorded conversation between Devaraj and the ABC representatives belies Devaraj’s contention that he disclosed private matters in the conversation. Devaraj did not reveal any information about his personal life or affairs, but only generally discussed Medical Lab’s business operations, the pap smear testing industry, and Gordon’s supposed plans to open her own laboratory. This information was, at most, company confidential,4 not private to Devaraj himself. Privacy is personal to individuals and does not encompass any corporate interest. This common-sense notion that privacy is an aspect of one’s personal life is reflected in the law. See Rest. (2d) Torts § 6521 (indicating that “[t]he right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded” and that “[a] corporation, partnership or unincorporated association has no personal right of privacy”); Reed, 162 P.2d at 139(stating that the invasion of privacy action redresses “injury to the person” “that is wholly personal in character”).5 Because Devaraj’s conversation with the ABC representatives did not involve his private and personal affairs, De-varaj did not have an objectively reasonable expectation of privacy in the contents of the conversation.

3. Secret Videotaping for Future Public Broadcast

Lastly, Devaraj argues that he expected that the three undercover ABC *815representatives were not surreptitiously videotaping his dealings with them for broadcast to the general public. Devaraj’s argument implicates the privacy interest that the California Supreme Court has termed the “expectation of limited- privacy,” which is an expectation of privacy against the electronic recording of a communication even though the speaker lacks an expectation of complete privacy in the communication. See Sanders, 85 Cal.Rptr.2d 909, 978 P.2d at 71-72. The notion of limited privacy recognizes that although an individual may be visible or audible to some limited group of persons, the individual may nonetheless expect to remain secluded from other persons and particularly from the public at large. See id. at 69, 71-77 (holding that an employee engaged in personal conversation with a coworker in an office to which the general public did not have unfettered access could enjoy a limited, but legitimate, expectation that his conversation would not be secretly videotaped by an undercover television reporter, even though the conversation may not have been completely private from other coworkers); Shulman, 74 Cal.Rptr.2d 843, 955 P.2d at 491-93 (holding that an injured accident victim could reasonably expect that communications with a rescue nurse that were inaudible to the general public, but possibly overheard by others involved in the rescue, would not be electronically transmitted and recorded by a television producer); see also Boddie v. Am. Broad. Cos., 731 F.2d 333, 339 n. 5(6th Cir.1984) (under the federal wiretap statute, a person may reasonably expect that an oral communication is not being intercepted through the use of electronic devices even though the person does not have an expectation of complete privacy).

Devaraj undeniably held the subjective expectation that the ABC representatives were not secretly videotaping his conversation with them for television broadcast. Devaraj’s ignorance of the covert videotaping was essential to ABC’s operation of undercover, investigative journalism. Thus, although Devaraj lacked an expectation of complete privacy in his conversation with three strangers during a business meeting, he could have reasonably expected that the conversation would be confined to them for the most part, and not widely exposed to the public at large. In imparting information to strangers, one inevitably risks its secondhand repetition. See Sanders, 85 Cal.Rptr.2d 909, 978 P.2d at 72(citing Shulman, 74 Cal.Rptr.2d 843, 955 P.2d at 491). However, as the California Supreme Court has observed, there is “a substantial distinction ... between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device.” Id. (quoting Shulman, 74 Cal.Rptr.2d 843, 955 P.2d at 491). The question before us then is whether Arizona law would recognize as objectively reasonable Devaraj’s subjective expectation that his conversation with the ABC representatives would not be broadly disseminated to others, in other words, whether Arizona law would extend legal protection to such an expectation.

Exercising our best judgment, see Capital Dev. Co., 109 F.3d at 519, we conclude that, under Arizona law, Devaraj could not have reasonably expected privacy against the ABC representatives’ secret videotaping of his communications with them. We conclude that the Arizona Supreme Court would not recognize as broad an interest in limited privacy as the California Supreme Court has ■ done. In reaching this conclusion, we find significant the differences between the California and Arizona law in the area of electronic eavesdropping. The California Supreme Court’s holding in Shulman — that an injured accident victim *816could reasonably expect that her conversation with a rescue nurse was not being electronically amplified and recorded through a small microphone worn by the nurse — relied upon California’s Invasion of Privacy Act, which prohibits the electronic recording of any “confidential communication” without the consent of all parties to the communication. Shulman, 74 Cal.Rptr.2d 843, 955 P.2d at 491(citing Cal.Penal Code § 632(a)). Under California law, a “confidential communication” includes “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” CaLPenal Code § 632(c).

By comparison, Arizona law offers more limited protection against the electronic interception of oral communications. In Arizona, any person present at a conversation may record the conversation without obtaining the consent of the other parties to the conversation. See Ariz.Rev.Stat. § 13-3005 (prohibiting the “intentional! ] interception] [of] a conversation or discussion at which [one] is not present ... without the consent of a party to such conversation or discussion”); Ariz.Rev. Stat. § 13-3012 (excepting from the statute’s eavesdropping prohibition “[t]he interception of any ... oral communication by any person, if the interception is effected with the consent of a party to the communication or a person who is present during the communication ... ”). Arizona law thus reflects a policy decision by the state that the secret recording of a private conversation by a party to that conversation does not violate another party’s right to privacy. Under Arizona law, then, De-varaj could have no reasonable expectation that the ABC representatives were not surreptitiously videotaping his communications with them.

However, even if we assume that the Arizona Supreme Court would embrace an interest in limited privacy as broad as that articulated by the California Supreme Court, we still conclude that as a matter of law Devaraj’s privacy expectation was not reasonable. The expectation of limited privacy in a communication — namely the expectation that a communication shared with, or possibly overheard by, a limited group of persons will nonetheless remain relatively private and secluded from the public at large — is reasonable only to the extent that the communication conveys information private and personal to the de-clarant. See Godbehere, 783 P.2d at 789 (“protection for privacy interests generally applies only to private matters”) (citing Rest. (2d) Torts § 652A, cmt. b; Reed, 162 P.2d at 138). Shulman and Sanders, the two California Supreme Court opinions addressing the interest in limited privacy, are illustrative of this point. Both opinions recognized the limited privacy interest in' the context of private and personal communications that were intercepted by the press.

Shulman involved a patient’s conversation with a provider of medical care in the course of emergency treatment at an accident scene. Shulman, 74 Cal.Rptr.2d 843, 955 P.2d at 474. The patient’s communications with the rescue nurse were intensely private and personal. The patient made statements like, “I’m old,” revealing that she was forty-seven, and “I just want to die. I don’t want to go through this.” Id. Although triable issues of fact existed in the case, the California Supreme Court noted the “traditional and legally well-established expectation of privacy” in “[a] patient’s conversation with a provider of medical care in the course of treatment.” Id. at 491. Thus, the California Supreme Court concluded that if the jury found that the patient’s communications with the rescue nurse were inaudible to persons not *817participating in the rescue effort, then the patient reasonably could have expected that her communications would be confined to the rescue personnel and not electronically transmitted and recorded for television broadcast. Id. at 491-93; see also Sanders, 85 Cal.Rptr.2d 909, 978 P.2d at 72(stating that Shulman so held).

In Sanders, the recorded conversation between two coworkers was also of a private and personal nature. The plaintiff “discussed his personal aspirations and beliefs and gave [the defendant] a psychic-reading.” Sanders, 85 Cal.Rptr.2d 909, 978 P.2d at 70. The California Supreme Court held that given that the workplace where this conversation took place was not generally open to the public, the plaintiff could have a reasonable expectation of privacy against a television reporter’s covert videotaping of the conversation even though the plaintiff lacked a reasonable expectation of complete privacy because he was visible and audible to other coworkers. Id. at 77. Noting that the reasonableness of any expectation of limited privacy in the workplace will depend upon the particular circumstances, the California Supreme Court observed that “greater expectations of workplace privacy may be legally recognized when ‘the communication sought to be intercepted is strictly internal such as the communication between the coworkers in Sanders. Id. (quoting Commonwealth v. Alexander, 551 Pa. 1, 708 A.2d 1251, 1257 (1998)). However, “[i]n other circumstances, where, for example, ... the interaction that was the subject of the alleged intrusion was between proprietor (or employee) and customer, any expectation of privacy against press recording is less likely to be deemed reasonable.” Id.

The California Supreme Court distinguishes between “internal” and “external” workplace communications in assessing the likely reasonableness of any expectation of limited privacy. Unlike the “internal” conversation between coworkers in Sanders, an “external” conversation between a workplace insider, such as a proprietor, and a workplace outsider, like a customer, is more probably business-related and thus not sufficiently private and personal in character to make any privacy expectation reasonable. For example, in Desnick v. American Broadcasting Cos., 44 F.3d 1345 (7th Cir.1995), test patients covertly videotaped their conversations with ophthalmic surgeons who recommended cataract surgery to the test patients. Desnick, 44 F.3d at 1348. The Seventh Circuit held that the surgeons had failed to state a claim for invasion of privacy because “[t]he test patients entered offices that were open to anyone expressing a , desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves).” Id. at 1352. Accordingly, there was no “invasion of a person’s private space,” no “intrusion into legitimately private activities,” and “no eavesdropping on a private conversation” that revealed “intimate personal facts concerning the two individual plaintiffs.” Id. at 1352-53.

Likewise, in Wilkins v. National Broadcasting Co., 71 Cal.App.4th 1066, 84 Cal.Rptr.2d 329 (1999), television producers posing as potential investors in a telecommunications company secretly videotaped a business meeting that they had with salespersons from the telecommunications company. The California court of appeal ruled that the salespersons’ claim that the surreptitious videotaping intruded upon their seclusion did not survive the television producers’ motion for summary judgment. Wilkins, 84 Cal.Rptr.2d at 332. Because the salespersons “discussed business matters on the open patio of a public restaurant with four strangers,” “[t]here was no *818intrusion into a private place, conversation or matter.” Id. at 336. The court of appeal stressed that the secret videotaping did not constitute “physical or sensory intrusion into [the salespersons’] privacy,” or intrusion “into thefir] personal lives, intimate relationships, or any other private affairs.” Id.

The case currently before us involves the covert videotaping of “external” workplace communications much like those recorded in Desnick and Wilkins. Devaraj, in his capacity as Medical Lab’s founder and co-owner, invited three strangers whom he regarded as potential business partners, but also possible competitors, to the Medical Lab offices where they discussed business, not personal matters. As already discussed, Devaraj held no objectively reasonable expectation of privacy in the parts of Medical Lab that he showed the undercover ABC representatives. The videotaping therefore did not intrude upon any private place of his. Devaraj’s subjective expectation of privacy in the contents of his conversation with the ABC representatives, which was wholly business-related and did not implicate Devaraj’s private and personal affairs, was also not objectively reasonable. Thus, the videotaping did not invade any conversation or matter that was private to Devaraj. In short, Devaraj presented himself to the three strangers from ABC as no more than a public face and voice for Medical Lab. Given that Devaraj cannot assert a privacy right on behalf of Medical Lab, see Rest. (2d) Torts § 6521, Devaraj could have no reasonable expectation of limited privacy in a workplace interaction with three strangers that was purely professional and touched upon nothing private and personal to Devaraj himself.6 See Desnick, 44 F.3d at 1352-53; Wilkins, 84 Cal.Rptr.2d at 336.

We conclude that while Devaraj may have maintained a subjective expectation of privacy over the location of his conversations with the undercover ABC representatives, an expectation of privacy in the contents of the conversation, and an expectation that against the ABC’s secret videotaping of his communication for future *819broadcast to the general public, these expectations were not objectively reasonable.

B. The Offensiveness of the Alleged Intrusion.

Even if we assume that, under Arizona law, the ABC representatives’ secret videotaping intruded upon Devaraj’s reasonable expectation of privacy, the intrusion was not sufficiently offensive to state a claim for intrusion upon seclusion.

In determining whether a jury could reasonably find an alleged intrusion highly offensive, we have previously considered “the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.” Deteresa v. Am. Broad. Cos., 121 F.3d 460, 465 (9th Cir.1997). Although no Arizona ease indicates what sort of conduct constitutes a highly offensive intrusion, the illustrations in the comments to the Restatement (Second) of Torts § 652B suggest that it must be an exceptional kind of prying into another’s private affairs. See Rest. (2d) Torts § 652B, cmt. b. (offering the following examples: (1) taking the photograph of a woman in the hospital with a “rare disease that arouses public curiosity” over her objection, and (2) using a telescope to look into someone’s upstairs bedroom window for two weeks and taking “intimate pictures” with a telescopic lens). Moreover, when a member of the print or broadcast press commits an intrusion in order to gather news, the public’s interest in the news may mitigate the offensiveness of the intrusion. See Godbehere, 783 P.2d at 788-89 (recognizing that the right to privacy should be balanced against the public interest in the information); ‘Reed, 162 P.2d at 138 (noting that privacy rights are absent or limited “where the information would be of public benefit”); see also Shulman, 74 Cal.Rptr.2d 843, 955 P.2d at 493-94 (“[T]he constitutional protection of the press does reflect the strong social interest in effective and complete reporting of events, an interest that may — as a matter of tort law — justify an intrusion that would otherwise be considered offensive.”).

Any intrusion by the ABC representatives was de minimis and thus not highly offensive to a reasonable person. The covert videotaping of a business conversation among strangers in business offices does not rise to the level of an exceptional prying into another’s private affairs, which the Restatement’s illustrations indicate is required for “offensiveness.” See Rest. (2d) § 652B. cmt. b. In addition, any offensiveness of the alleged intrusion is mitigated by the public interest in the news gathered for Rush To Read. “[WJhether ... speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context ... as revealed by the whole record.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,472, U.S. 749, 761, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (quoting Connick v. Myers, 461 U.S. 138,147-48,103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). There can be no doubt, as the district court found, that “[ijnformation about a medical issue with potential life and death consequences affecting millions of women is plainly an issue of public concern.” Med. Lab. II, 30 F.Supp.2d at 1193 n. 11.

The district court properly granted Defendants’ summary judgment motion on Devaraj’s claim of intrusion upon his seclusion. As a matter of law, the ABC representatives did not intrude upon any objectively reasonable expectation of privacy held by Devaraj, and the alleged intrusion *820was not highly offensive.7

II. Trespass.

Before the district court, Medical Lab argued that the ABC representatives had trespassed, and sought damages from the publication of Rush To Read on the ground that the ABC representatives had obtained footage for the television segment through their trespass. Medical Lab did not request nominal damages, nor did it claim to have suffered any other damages as a result of the alleged trespass.8 The district court concluded that although the ABC representatives had trespassed, the trespass was not the legal cause of the claimed publication damages. See Med. Lab. II, 30 F.Supp.2d at 1204. Medical Lab appeals the district court’s damages analysis, which we affirm.

Even if we assume that the ABC representatives committed a trespass, Medical Lab fails to sustain its burden of proving the damages it seeks. The Arizona courts have adopted the test of legal causation set forth in the Restatement (Second) of Torts §§ 430 et seq., which applies to both intentional and negligent torts. See Rest. (2d) Torts § 431, cmt. e (noting that the test of legal causation set forth in § 431 applies equally to intentional and negligent torts); Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 945 P.2d 317, 343 (Ct.App.1996) (citing the Restatement (Second) of Torts § 431 for the test of legal causation); Shetter v. Rochelle, 2 Ariz.App. 358, 409 P.2d 74, 83 (Ct.App.1965) (applying the Restatement (Second) of Torts § 432); see also Reed, 162 P.2d at 137 (the Arizona Supreme Court follows the Restatement when “not bound by previous decisions or by legislative enactment”). Tortious conduct is “a legal cause of harm to another if’ the “conduct is a substantial factor in bringing about the harm.” Rest. (2d) Torts § 431.

Rush To Read used only 52 seconds of videotape obtained from the ABC representatives’ alleged trespass on Medical Lab’s property. This 52 seconds of videotape showed Devaraj seated, stating that cytotechnologists that work at Medical Lab also work at other laboratories. Medical Lab fails to identify any damages flowing specifically from this 52-second videotape clip. Moreover, the evidence of injury to Medical Lab’s reputation and business in the aftermath of Rush To Read’s broadcast shows that Medical Lab’s failure to detect cervical cancer on several of the pap smear slides in the ABC study caused the damages that Medical Lab seeks, not Devaraj’s statement about Medical Lab’s cytotechnologists. Doctors that terminated their business relationships with Medical Lab after Rush To Read aired testified that they did so because of Medical Lab’s “problems with processing ... pap smears.” Both doctors and patients were not “comfortable sending lab work there.” The doctors “repealed] several pap smears at patients’ requests,” and “even sent some biopsy *821specimens, again,, to the hospital for second confirmations.” The doctors stopped using Medical Lab’s services because they “felt an obligation to [their] patients to give them laboratory services that were beyond question.”

The Restatement . recognizes that “[s]ome other event which is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect 14565 of the [tortious conduct] insignificant and, therefore, to prevent it from being a substantial factor.” Rest. (2d) Torts § 433, cmt. d. Such was the case here. The doctors’ testimony indicates that Medical Lab’s performance in the ABC study, missing cervical cancer on several of the pap smear slides, was the predominant factor in their decisions to discontinue their business with Medical Lab. Any injurious effect from Devaraj’s statement that Medical Lab’s cy-totechnologists work at other laboratories as well, a statement captured on videotape by the ABC representatives during their alleged trespass, was negligible by comparison. Accordingly, we find no support in the record for a conclusion that the alleged trespass by the ABC representatives was a substantial factor in bringing about the damages that Medical Lab suffered from the broadcast of Rush To Read. See Rest. (2d) Torts § 431. Because the alleged trespass was not the legal cause of the publication damages that Medical Lab seeks, the district court properly granted Defendant’s motion for summary judgment on Medical Lab’s trespass claim.

III. Tortious Interference with Contractual Relations and Prospective Economic Relations.

Medical Lab contends that Defendants’ broadcast of Rush To Read tortiously interfered with its contractual relations and prospective economic relations. As discussed in the context of Devaraj’s claim of intrusion upon his seclusion, Rush To Read addressed a subject of unquestionable public concern—the frequency of testing errors by medical laboratories that analyze women’s pap smear slides for cervical cancer. See Dun & Bradstreet, 472 U.S. at 761-62, 105 S.Ct. 2939. Given this public interest in the publication of Rush To Read, the First Amendment requires Medical Lab to demonstrate the falsity of the statements made in the television segment, as well as Defendants’ fault in broadcasting them, before recovering damages. See Unelko Corp. v. Rooney, 912 F.2d 1049, 1058 (9th Cir.1990) (when a claim of tortious interference with business relationships is brought as a result of constitutionally protected speech, the claim is “subject to the same first amendment requirements that govern actions for defamation”); Redco Carp. v. CBS, Inc., 758 F.2d 970, 973 (3d Cir.1985) (unless defendants “can be found liable for defamation, the intentional interference with contractual relations count is not actionable”); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, Local 655, 39 F.3d 191, 196 (8th Cir.1994) (the constitutional requirements for defamation “must equally be met for a tortious interference claim based on the' same conduct or statements”; otherwise “a plaintiff may ... avoid the protection afforded by the Constitution ... merely by the use 'of creative pleading”). •

To establish Rush To Read’s falsity, Medical Lab must show more than a “slight inaccuracy in the details.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). “Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified. Put another way, the statement is not considered false unless it would have a different effect on the mind *822of the reader from that which the pleaded truth would have produced.” Id. (internal quotations and citations omitted); accord Currier v. W. Newspapers, Inc., 175 Ariz. 290, 855 P.2d 1351, 1354 (1993) (“[Sjlight inaccuracies of expression are immaterial if the alleged defamatory statement is true in substance.”) (internal quotations omitted).

The district court held that Medical Lab failed to raise any triable issues of fact regarding Rush To Read’s falsity. See Med. Lab. II, 30 F.Supp.2d at 1186. Medical Lab appeals this decision, arguing that the television segment made five separate false statements. We consider each statement in turn.

A. Medical Lab’s Performance on the Four “Unmistakable” Slides.

Of the 623 pap smear slides used in the ABC study, Dr. Mathilde Boon, a Dutch pathologist, provided 100, four of which Dr. Boon characterized as “unmistakable” slides that any laboratory should identify as “abnormal cases.” After testing Dr. Boon’s four “unmistakable” slides, Medical Lab reported that two were abnormal, one was “unsatisfactory,” and the other was “within normal limits.” Rush To Read reported Medical Lab’s performance on the four slides as follows:

Diane Sawyer: So, how did this lab do on our slides? Well, on Dr. Bowen’s [sic] slides, this lab missed two of the four Dr. Bowen [sic] had called “unmistakable,” both clear-cut cancer.

Dr. Matilda Bowen [sic]: Absolutely should have been picked up, yes.

Diane Sawyer: That any responsible laboratory should have picked these four up.

Dr. Matilda Bowen [sic]: Yes.

Medical Lab argues that the broadcast’s statement that it “missed two of the four” “unmistakable,” “clear-cut cancer” slides is not substantially true because Medical Lab did not misread as normal one of these slides, but rather designated it “unsatisfactory.”

In support of its argument, Medical Lab cites the testimony of Dr. Charles Santos-Buch, a Cornell Medical School pathology professor, who was one of Defendants’ retained experts for the ABC study. Dr. Santos Buch testified that Medical Lab did not “misread” the slide at issue, but rendered “an interpretation” that “the number of red blood cells is obscuring the samples so they cannot be read.” He explained that when a laboratory finds a sample “unsatisfactory for diagnosis,” the attending physician must “make another appointment with that patient and get a repeat sample.”

Medical Lab further relies upon the notes taken contemporaneously with Dr. Santos-Buch’s evaluation of this particular slide before Rush To Read aired. These notes indicate that Dr. Santos-Buch found the slide to contain “a lot of blood” and to be “limited for interpretation” because of “limited specimen.” However, critically, these notes also show that Dr. Santos-Buch did not conclude that the slide was unsatisfactory, or could not be read, because of limited specimen or the presence of red blood cells. Rather, he determined that the slide was “clearly an abnormal.” His opinion was that there was “[n]o question there is an abnormality here.” Dr. Santos-Buch reiterated this point of view in his later testimony. When asked whether there was “any hesitancy in [his ] opinion” that all four of Dr. Boon’s “unmistakable” slides were indeed abnormal, Dr. Santos Buch responded unequivocally, “It was quite evident all four were abnormal.”

Dr. Laurie Mango, a pathologist at Neu-romedical Systems, Inc. whom Defendants also retained as an expert in the ABC *823study, confirmed the opinions of Dr. Santos Buch and Dr. Boon with respect to the four “unmistakable” slides.. Dr. Mango’s evaluation of the slides concluded that “all four show clear evidence of abnormality.” In Dr. Mango’s judgment, “any eytopa-thologist would agree that all four of these smears are abnormal.” Dr. Mango believed that Medical Lab’s designation of the slide as “unsatisfactory” was a grave oversight. She explained that “[i]n cyto-pathology, a .smear can only properly be reported as unsatisfactory if both of the following are true: (1) the smear is not found to contain any evidence. of abnormality, and (2) the smear fails to display sufficient evidence to allow for proper evaluation.” Thus, in Dr. Mango’s opinion, “Given the unequivocal evidence of abnormality displayed on [the] smear ..., this smear should not have been reported as inadequate.”

In sum, the shared opinion of the exr perts, including Dr. Santos Buch upon whom Medical Lab relies, was that the slide at issue contained enough clearly identifiable evidence of abnormal, cancerous cells that any laboratory examining the sample should detect and report the abnormality. Medical Lab did not detect and report the abnormality. Thus, the statement that Medical Lab “missed” the “unmistakable” “clear-cut cancer” on this slide is substantially true. That Medical Lab deemed the pap smear sample unsatisfactory, rather than normal, is not information that would have created a different impression upon the mind of the viewer. See Masson, 501 U.S. at 517, 111 S.Ct. 2419; Currier, 855 P.2d at 1354. The district court correctly determined that this claim of falsity must fail.

B. ■ The Lost Slides.

In addition to the 100 pap smear slides contributed by Dr. Boon, Defendants collected 523 slides .from gynecologists who agreed to participate in the ABC study by taking two pap smears from each patient and sending one to the gynecologist’s regular medical laboratory and the other to PrimeTime Live to be tested by the four laboratories profiled in Rush To Read. By analyzing both the actual slides and digital images of the pap smears taken by a computer screening device known as PapNet, Dr. Boon and Dr. Jonathan Wein-traub, an American pathologist working in Switzerland, identified 19 of the 523 slides as “clear-cut precancerous abnormal slides.” In Rush To Read, Diane Sawyer reported that the Arizona laboratory had “missed” three of these 19 abnormal slides. Prior to the broadcast, however, during Dr. Mango’s travel to New York from Switzerland, where Drs. Boon and Wein-traub had reviewed the slides, a number of the slides were lost, including the three that Rush To Read indicated that Medical Lab had missed.

Before the district court,- Medical Lab presented no evidence that the three abnormal slides, that it allegedly had, missed, by diagnosing them as normals were not in fact abnormal. Rather, Medical Lab argued that Defendants’ loss of the three slides justified an inference adverse to Defendants—an inference that the slides were normal and that therefore the broadcast’s statement that Medical Lab had missed the abnormalities in the samples was false. See Med. Lab. II, 30 F.Supp.2d at. 1195. The district court declined to allow the inference because there was no evidence that Defendants had acted in bad faith, and Medical Lab had available to it means to challenge the validity of Defendants’ conclusion that the slides were abnormal. Id. at 1195-96. Medical Lab could have analyzed the PapNet data, which preserved digital images of the pap smears, and also could have deposed Drs. *824Boon and Weintranb, but Medical Lab chose not to. Id. at 1195.

“A federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993). This power includes the power to sanction the responsible party by instructing the jury that it may infer that the spoiled or destroyed evidence woúld have been unfavorable to the responsible party. Id.; Akiona v. United States, 938 F.2d 158, 161 (9th Cir.1991). As a discretionary power, the district court’s exercise of that power is reviewed by this court only for abuse of discretion. Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 367 (9th Cir.1992). We conclude that the factors considered by the district court provided ample basis for the court’s discretionary decision to refuse the adverse inference that Medical Lab requested.

The district court appropriately observed that Defendants’ loss of the pap smear slides did not evidence bad faith, was not intentional, and reflected only inadvertence that at most was negligence. Dr. Mango testified that she had the box of slides with her in her hotel room in Geneva the evening 14571 before she left Switzerland for New York, but that she either misplaced the slides, or they were stolen from her, “somewhere between that hotel room and landing in New York City.” Dr. Mango realized “at the luggage carousel ... [that she] did not have th[e] box of slides with [her].” Dr. Mango “was very upset” about the loss of the slides, personally flew back to Geneva to search for them, and even hired a private investigator to locate them. Robbie Gordon at ABC was also “distressed” by the loss of the slides, viewed it as “a very big problem,” and thought that “it was important that [Dr. Mango] find them.” Through her investigatory efforts, Dr. Mango learned that the taxidriver in Geneva that had taken her to the airport remembered that she had the box of slides with her when she exited the taxi. However, Dr. Mango was unable to recover the slides for Defendants.

The district court did not abuse its discretion in relying upon the absence of bad faith or intentional conduct by Defendants. When relevant evidence is lost accidentally or for an innocent reason, an adverse evidentiary inference from the loss may be rejected. See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1159 (1st Cir.1996). The district court did not abuse its discretion by concluding that, under the totality of the circumstances, an unfavorable inference was not warranted because a rational jury would not infer that Defendants’ loss of the slides indicated that the slides threatened Defendants’ legal position and needed to be covered up. See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir.1995) (the district court did not abuse its discretion in refusing an unfavorable inference when the circumstances indicated that the evidence was not intentionally lost and the responsible party searched for it, but to no avail); Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir.1998) (the inference that a missing record contained adverse evidence was not justified when the record’s loss was inadvertent); see also Akio-na, 938 F.2d at 161 (noting that “a party who has notice that [evidence] is relevant to litigation and who proceeds to destroy the [evidence] is more likely to have been threatened by the [evidence] than is a party in the same position who does not destroy the [evidence],” and that the adverse inference is based upon evidentiary and deterrence rationales) (quoting Welsh *825v. United States, 844 F.2d 1239, 1246 (6th Cir.1988)).

The availability of other evidence to Medical Lab to challenge the broadcast’s statement regarding the three missing slides, and Medical Lab’s failure to pursue this evidence, also formed proper bases for the district court’s exercise of its discretion. When a proponent cannot produce original evidence of a fact because of the inadvertent loss of the evidence, proof by secondary evidence is permissible. See Fed.R.Evid. 1004(1). The digital images of the pap smears retained in the PapNet data offered such secondary evidence. According to Dr. Mango’s testimony, although the PapNet data was not as reliable as the original slides, the two-dimensional computer images showed sufficient diagnostic cells in some cases to permit diagnosis of a pap smear. In addition to the PapNet images, records retained by the medical laboratories and doctors that had examined the original slides were available evidence. Furthermore, as the district court noted, Medical Lab could have deposed Drs. Boon and Weintraub regarding their evaluations of the slides. Given Medical Lab’s failure to rely upon any of this not-insubstantial evidence to prove the broadcast’s falsity, the district court did not abuse its discretion in ruling that Defendants’ inadvertent loss of the slides, by itself, was not enough for Medical Lab to survive summary judgment on its falsity claim. See Kronisch v. United States, 150 F.3d 112, 128 (2d Cir.1998) (when a party “has produced no evidence — or utterly inadequate evidence — in support of a given claim”, “the destruction of evidence, standing alone, is [not] enough to allow [the] party ... to survive summary judgment on that claim”); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir.2001) (“In borderline cases, an inference of spoilation, in combination with ‘some (not insubstantial) evidence’ for the plaintiffs cause of action, can allow the plaintiff to survive summary judgment.”) (quoting Kronisch, 150 F.3d at 128).

C. The Broadcast’s Report on Error Rates in the Industry.

Rush To Read stated that “[experts say with human fallibility, everyone makes mistakes, but labs should strive to miss no more than five percent of the slides that are abnormal.” Medical Lab does not dispute the truth of this aspirational benchmark. Rather, Medical Lab faults the broadcast for omitting any discussion of the actual industry error rate. The district court correctly held that the absence of this information did not render the broadcast false. “The choice of material to go into a [broadcast], and the ... treatment of public issues ... — whether fair or unfair — constitute the exercise of editorial control and judgment.” Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). The decision not to include information about the true range of error in the industry was an editorial decision protected by the First Amendment. See id.; see also Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 510 (9th Cir.1988) (“[T]he First Amendment does not allow the government to require independent filmmakers to present all views on a subject, or indeed any view contrary to the filmmakers’ own.”).

D. The Broadcast’s Statement that Medical Lab Offered 21-Hour Service.

Rush To Read represented that “[a]ll four labs offered 24-hour service, including the one in Arizona.” Charleston, the ABC producer who posed as a representative of the fictitious Michigan women’s health clinic, sent a letter to Devaraj that said: “To confirm our agreements: you have promised a 24 hour turn-around on the *826slides.” Devaraj testified that he received the letter and admitted that it constituted an “agreement” that Medical Lab had with the fictitious clinic. Accordingly, the district court properly rejected Medical Lab’s argument that the broadcast falsely stated that the Arizona laboratory offered 24-hour service.

E. The Broadcast’s Statement that Medical Lab’s Cytotechnologist ‘Worked Two Exhausting 13-Hour Days”.

Rush To Read declared that one of Medical Lab’s cytoteehnologists “read 172 of our slides while doing other work as well, paperwork, filing, working two exhausting 13 hour days.” Medical Lab argues that this statement is false because the cytotechnologist, Florence Sanchez (“Sanchez”), worked only 10 hours and 40 minutes on the second day. The district court declined to consider this argument because it was untimely. See Med. Lab. II, 30 F.Supp.2d at 1197 n. 15. We have held that “[district court judges must have ample discretion to control their dockets.” Murray v. Laborers Union Local No. 324, 55 F.3d 1445, 1452 (9th Cir.1995). We find no abuse of discretion in the district court’s decision not to pass upon the claim, which Medical Lab filed in a supplemental opposition three weeks after the court’s deadline for responses to Defendants’ summary judgment motion. See Med. Lab. II, 30 F.Supp.2d at 1197 n. 15. In any event, any abuse of discretion by the district court in refusing to rule on Medical Lab’s belatedly presented claim was not prejudicial because the broadcast’s statement was substantially true.

Based upon Defendants’ videotaping of her comings and goings that weekend, Sanchez worked a total of about 25 hours, approximately 14 hours on the first day and almost 11 on the second. Although the broadcast understated her hours on the first day and overstated them on the second, the broadcast’s representation produces no “different effect on the mind of the [viewer] from that which the pleaded truth would ... produce[ ].” Masson, 501 U.S. at 517, 111 S.Ct. 2419; see also Currier, 855 P.2d at 1354. The minor inaccuracy does not amount to falsity because “the gist”—that Sanchez worked two long days—can be justified. See Masson, 501 U.S. at 517, 111 S.Ct. 2419. Medical Lab does not create a triable issue of fact regarding the broadcast’s falsity on this point, and thus suffered no prejudice from the district court’s rejection of the argument as untimely.

We agree with the district court that Medical Lab does not raise any triable issues of fact regarding Rush To Read’s falsity. Accordingly, we affirm the district court’s grant of summary judgment in Defendants’ favor on Medical Lab’s claim of tortious interference with contractual relations and prospective economic relations.

IV. Punitive Damages.

The district court properly granted Defendants’ motion for summary judgment on Plaintiffs’ punitive damages claims because Plaintiffs “must be entitled to actual damages before being entitled to punitive damages.” Wyatt v. Wehmueller, 167 Ariz. 281, 806 P.2d 870, 874 (1991). Because the claims that Plaintiffs raise on appeal lack merit, Plaintiffs are entitled to neither actual nor punitive damages.

The district court’s judgment is AFFIRMED.

BARKETT, Circuit Judge:

Cheryl Summers appeals the district court’s grant of summary judgment in this tort action. She argues that the court erred in rejecting her claims for malicious abuse of process, malicious use of process, intentional infliction of emotional distress, and invasion of privacy. We affirm the grant of summary judgment on the first three claims, 1 but reverse the district court’s determination that Summers’ allegations of invasion of privacy are insufficient to state a cause of action.

I.

In 1986, appellant Cheryl Summers purchased a supermarket and leased property in Newton County, Georgia, from appellee Claude Bailey. She and her husband ran the market through their corporation, Food Fare, Inc. In 1988, in the midst of bankruptcy proceedings, Summers negotiated to sell the market to Charles Perry. Bailey did not approve of the sale, and according to Summers, he threatened and harassed both her and Perry, causing the sale to fall through. Summers alleges further that in an effort to win back his store without having to. pay for it, Bailey tried to ruin her business, 2 and stalked, harassed and intimidated her.

In her deposition, Summers testified that during the summer of 1988, 3 Bailey would appear at her grocery store and exhibit a *1566 large hand gun which he carried, would park outside of the store for hours watching her, and would tell her and her customers that he wanted her out of the store. In her affidavit, she stated that in August and September 1988, Bailey would follow her in his track as she ran errands, and that in September and October he alternately parked his track on her property, parked near her residence, and parked in the woods by her house, following her as she departed from her home. She stated that this constant following and stalking frightened her.

II.

We review the district court’s grant of summary judgment de novo, and resolve all reasonable doubts about facts in favor of Summers, the non-moving party. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir.1995).

In a landmark privacy case, the Georgia Supreme Court concluded that personal liberty includes not only freedom from physical restraint, but also the legal right “to be let alone.” Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 71 (1905). Under current Georgia law, the concept of invasion of privacy encompasses four loosely related but distinct torts. 4 Summers predicates her privacy claim on two of these torts, alleging that Bailey intruded into her private affairs and placed her in a false light. 5

The tort of intrusion involves an unreasonable and highly offensive intrusion upon another’s seclusion. Georgia courts have long recognized the form of invasion consisting of intrusion upon physical solitude or seclusion analogous to a trespass in plaintiffs home or other quarters, such as hospital or hotel rooms. 6 Georgia courts have extended the principle beyond physical intrusion to include prying and intrusions into private concerns, such as eavesdropping by microphone 7 and peering into the windows of a home. 8 The Georgia Supreme Court recognized this extension in Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d 835 (1991), stating: “The ‘unreasonable intrusion’ aspect of the invasion of privacy involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person’s private concerns.” Id. at 837 (citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 117, at 855-56 (5th ed. 1984); Adams & Adams, Georgia Law of Torts § 29-3, at 342-43 (1989)).

Traditionally, watching or observing a person in a public place is not an intrusion upon one’s privacy. However, Georgia courts have held that surveillance of an individual on public thoroughfares, where such surveillance aims to frighten or torment a person, is an unreasonable intrusion upon a person’s privacy. 9

*1567 Summers’ factual allegations, which we take in the light most favorable to her, and which fall within the two-year limitation period, suggest not only a physical intrusion onto her residential property, but an offensive, frightening and unreasonable surveillance of her private affairs. Thus, we find that Summers has alleged sufficient facts to state a cause of action for invasion of privacy premised upon intrusion, and presented sufficient evidence upon which a factfinder could reasonably find in her favor. Accordingly, we reverse the judgment of the district court on this claim, and remand for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

COLE, Judge.

The issue presented in this case is whether the right of privacy of two children and their mothers was invaded when a newspaper republished, for its own advertising campaign, a portion of an edition in which the children’s photograph appeared. The facts are not in dispute.

On July 29, 1979, two infants, Zantia Lawrence and Kermit Fowlkes, Jr., were taken by Fowlkes’ mother to an Afram Festival in downtown Baltimore. While there, Jed Kirschbaum, a photographer for the Sunpapers, requested permission to photograph the children for an article about the festival. Mrs. Fowlkes consented. The next day two photographs of the children appeared on the front page of all editions of The Evening Sun with a caption indicating the names and ages of the children and where the pictures had been taken.

About six weeks later The Evening Sun began an advertising campaign in which the top half of the front page of the issue that included the infants’ photographs was reproduced with the banner headline changed to read, “More News is Good News.” The advertising campaign consisted of billboards, commercials, and rack cards. Counsel for the infants and their mothers demanded, and was refused, compensation for the use of the photograph.

*699 The mothers brought suit in the Superior Court of Baltimore City (now the Circuit Court for Baltimore City) alleging unauthorized use of the photograph in the advertising campaign and unjust enrichment. The court granted the motion for summary judgment filed by The A.S. Abell Company and Kirschbaum. The mothers appealed to the Court of Special Appeals, but we granted certiorari prior to consideration by the intermediate appellate court. For the reasons given below we affirm the judgment of the lower court.

The mothers’ arguments for compensation are based on invasion of privacy and unjust enrichment. This case rests upon the determination of the first issue, because if there was no invasion of privacy for which the infants must be compensated, then the newspaper has not been unjustly enriched by using the photographs in its advertising campaign.

The invasion of the right of privacy was articulated as a separate tort in a famous article by Samuel D. Warren and Louis D. Brandéis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). After a thorough examination of certain cases, the authors determined that a common law right of privacy was entitled to recognition because the substance of such a right already had been protected under the appearance of property rights, defamation, or breach of an implied contract. They concluded that violation of the right of privacy itself was actionable: “[t]he legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration.” Id. at 198.

The first and leading case decided by a court of last resort in the United States recognizing this right, Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905), explained:

*700 The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private, and there are matters public so far as the individual is concerned. [Id. 50 S.E. at 69.]

A later case adopting the right of privacy, Gill v. Curtis Publishing Co., 38 Cal.2d 273, 239 P.2d 630 (1952), recognized as persuasive some of the arguments advanced by that right’s initial exponents:

“[T]he increased complexity and intensity of modern civilization and the development of man’s spiritual sensibilities have rendered man more sensitive to publicity and have increased his need of privacy, while the great technological improvements in the means of communication have more and more subjected the intimacies of his private life to exploitation by those who pander to commercialism and to prurient and idle curiosity. A legally enforceable right of privacy is deemed to be a proper protection against this type of encroachment upon the personality of the individual.” [Id. at 277, 239 P.2d 630 (quoting 41 Am.Jur. Privacy, § 9).]

Maryland recognized the tort of invasion of privacy in Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (1962). In doing so, it joined the majority of states that have recognized this tort. 1 Our cases have viewed with approval the Restatement’s definition of the invasion of the right of *701 privacy. See Hollander v. Lubow, 277 Md. 47, 351 A.2d 421, cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); Beane v. McMullen, 265 Md. 585, 291 A.2d 37 (1972); Household Fin. Corp. v. Bridge, 252 Md. 531, 250 A.2d 878 (1969). In these cases we quoted § 652A of the Restatement (Second) of Torts, which outlines the four distinct branches of the tort:

§ 652A. General Principle

(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.

(2) The right of privacy is invaded by

(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or

(b) appropriation of the other’s name or likeness, as stated in § 652C; or

(c) unreasonable publicity given to the other’s private life, as stated in § 652D; or

*702 (d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E.

The case sub judiee is based on § 652A(2)(b), because the plaintiffs have alleged that the newspaper appropriated the children’s likenesses for use in its advertising campaign. The Court in Pavesich v. New England Life Ins. Co., supra, initially recognized this aspect of the tort, noting that “the publication of one’s picture without his consent by another as an advertisement, for the mere purpose of increasing the profits and gains of the advertiser, is an invasion of [the] right [of privacy]----” Id. 50 S.E. at 81. There have been a number of decisions in this particular area of the tort and one commentator concluded that “the effect of the appropriation is to recognize or create an exclusive right in the individual plaintiff to a species of trade name, his own, and a kind of trademark in his likeness.” W. Prosser, Torts § 117, at 807 (4th Edition 1971).

This Court has not considered the appropriation for the defendant’s benefit of a person’s name or likeness, but § 652A(2)(b) directs our attention to § 652C which provides: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.’’’ The comments to this section indicate that it protects the individual’s interest in the exclusive use of his identity from appropriation by another to advertise his business or product or for similar commercial purposes. However, Comment d explains that the tort does not apply to an incidental use of a person’s name or likeness:

The value of the plaintiff’s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought *703 before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable under the rule stated in this Section to every person whose name or likeness it publishes. [Emphasis supplied.]

Several New York cases, arising under a statute making a person liable for using another’s picture for advertising purposes, 2 have analyzed this branch of the tort and have *704 developed the incidental use exception. The seminal case construing the New York statute, Booth v. Curtis Publishing Company, 15 A.D.2d 343, 223 N.Y.S.2d 737, aff'd, 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812 (1962), was considered by the trial court. In Booth the plaintiff, Shirley Booth, a television and film star, sued the publisher of Holiday magazine for invasion of her right to privacy due to the use of her photograph in advertisements for the magazine. The photograph originally had illustrated a story in Holiday about a resort at which Booth was staying. The picture was taken with Ms. Booth’s knowledge, and without her objection. Several months later the magazine published the same photograph in full-page advertisements of the magazine in Holiday and in other magazines. The court held that republication of this portion of the magazine in advertisements was an incidental use and thus not actionable:

It stands to reason that a publication can best prove its worth and illustrate its content by submission of complete copies of or extraction from past editions. Nor would it suffice to show stability of quality merely to utilize for that purpose a current issue.

* * * * * *

Consequently, it suffices here that so long as the reproduction was used to illustrate the quality and content of the periodical in which it originally appeared, the statute was not violated, albeit the reproduction appeared in other media for purposes of advertising the periodical. [223 N.Y.S.2d at 743-44.]

*705 Booth was followed in Namath v. Sports Illustrated, 48 A.D.2d 487, 371 N.Y.S.2d 10 (1975), aff'd, 39 N.Y.2d 897, 386 N.Y.S.2d 397, 352 N.E.2d 584 (1976), where football player Joe Namath sued the magazine for republishing a photograph of him, originally used in conjunction with a news article on the 1969 Super Bowl Game, as part of an advertising campaign. The court, citing Booth, held that “[t]he use of plaintiff’s photograph was merely incidental advertising of defendants’ magazine in which plaintiff had earlier been properly and fairly depicted and, hence, it was not violative of the Civil Rights Law.” Id. at 11. See also Friedan v. Friedan, 414 F.Supp. 77 (S.D.N.Y.1976) (relief denied to man whose picture was included in a magazine article about his former wife and used to advertise the magazine). 3

These cases and the Restatement indicate that in determining whether the right of privacy has been violated, we must consider two issues: (1) whether the initial use of the photograph was proper; and (2) whether the republication of the photograph was “merely incidental” or rather whether it amounted to an appropriation of the plaintiffs’ likenesses to promote the sale of the newspaper.

The first issue presents no real problem. As noted in Comment d to Restatement § 652C, “a newspaper, although it is not a philanthropic institution, does not become liable under the rule stated in this Section to every person whose name or likeness it publishes.” In this case, the children’s picture was taken while they were in a public place at a *706 newsworthy event. As Prosser notes, the cases early came to grips with this problem and held that publication of such news is not appropriation of a likeness for the defendant’s advantage. Prosser, supra at 806. In fact, allowing an action simply for publication of a person’s name or likeness in the news probably would be an unconstitutional violation of freedom of the press. See Donahue v. Warner Bros. Pictures Distributing Corp., 2 Utah 2d 256, 272 P.2d 177 (1954). Furthermore, in this case, the parent of one infant plaintiff, who also had custody of the other child (with the knowledge and approval of that child’s mother), gave the photographer permission to take the pictures for use in the paper in an article about the festival. Therefore, the initial publication of the picture was proper.

The real issue is whether the republication of the page of the paper was a “merely incidental” use of the photograph.

The mothers contend that the use was not incidental because the original publication was different from the advertisements in several respects. They assert that the original headline was changed; the heading from the feature story in the far right column was changed; and the only legible items, other than the headline, were the three sub-headlines. Further, they argue that the use was not incidental because the children’s photograph was the focus of the entire campaign. Booth, supra, and Comment d to § 652C of the Restatement dispose of these-contentions.

The Restatement indicates that a person’s name or likeness must have “commercial or other value” before an appropriation is actionable. In the New York cases examined above, each plaintiff had a recognized market value (e.g., Shirley Booth (actress); Joe Namath (quarterback)). They were objecting to the uncompensated appropriation of their proven economic worth. However, in this case, the children’s identity had no such proven “value.” They were not famous and, in fact, were not even professional models. *707 Rather, they simply were members of the public whose pictures were taken while they were in a public place. Thus, the children did not demonstrate that the paper even took advantage of any special value associated with their likenesses.

Significantly, the court in Booth made clear that it is acceptable to use extractions of past issues of a publication for advertising purposes, and the fact that a photograph may have been the focus of the advertising campaign is irrelevant. In Booth the photograph was enlarged to be the main focus of the advertisement and the captions were changed. The court found that this use was incidental because the picture was used to show the quality and content of the magazine. The use of the photograph in the advertisement campaign in the case sub judice is strikingly similar to the use of the photograph in Booth. If the advertisements had stated or implied that the children were endorsing or representing the newspaper then the use would not have been incidental. But where, as here, the photograph was reproduced in an actual portion of an issue of the paper to show a realistic sample of the product of the publisher and not to boost profits through the use of the children’s photograph then the use is incidental.

Therefore, we conclude that there was no appropriation of the children’s likenesses, no invasion of privacy, and the infants and their mothers are not entitled to compensation. It follows then that their claim of unjust enrichment fails. That doctrine only applies when one has been unconscionably permitted to enrich himself at the expense of others. The facts of this case do not support such a conclusion.

Accordingly, the judgment of the trial court is affirmed.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY IS AFFIRMED. APPELLANTS TO PAY THE COSTS.

OPINION

GAGLIARDI, District Judge.

Plaintiff Muhammad Ali, a citizen of Illinois and until recently the heavyweight boxing champion of the world, 1 has brought this diversity action for injunctive relief and damages against defendants Playgirl, Inc., a California corporation, Independent News Company (“Independent”), a New York corporation, and Tony Yamada, a California citizen, for their alleged unauthorized printing, publication and distribution of an objectionable portrait of Ali in the-February, 1978 issue of Playgirl Magazine (“Playgirl”), a monthly magazine published by Playgirl, Inc., and distributed in New York State by Independent. The portrait complained of depicts a nude black man seated in the corner of a boxing ring and is claimed to be unmistakably recognizable as plaintiff Ali. Alleging that the publication of this picture constitutes, inter alia, a violation of his rights under Section 51 of the New York Civil Rights Law (McKinney 1976) and of his related common law “right of publicity”, Ali now moves for a preliminary injunction pursuant to Rule 65, Fed.R. Civ.P., directing defendants Playgirl, Inc. and Independent 2 to cease distribution and dissemination of the February, 1978 issue of Playgirl Magazine, to withdraw that issue from circulation and recover possession of all copies presently offered for sale, and to surrender to plaintiff any printing plates or devices used to reproduce the portrait complained of. For the reasons which follow and to the extent indicated below, plaintiff’s motion for a preliminary injunction is granted. 3

THE FACTS

On January 31, 1978, plaintiff Ali commenced this action by order to show cause seeking a preliminary injunction and the issuance of a temporary restraining order pending the hearing on the preliminary injunction. Rule 65(b), Fed.R.Civ.P. The temporary restraining order was issued on January 31 and the matter was set for a hearing on February 2, 1978.

At the preliminary injunction hearing on February 2, counsel stated that the February issue of Playgirl containing the allegedly unlawful portrait of Ali was then scheduled to go “off sale”, that is, to be removed from newsstand circulation on February 4. Defendant Independent, through counsel, represented to the court that it was scheduled to conduct the removal of the remaining issues on that date and that thereafter Independent would not be involved in any further distribution of the magazine (Tr. 8, ll). 4 Satisfied with counsel’s stipulation that Independent would consent to impound the returned copies of Playgirl until further court order, plaintiff agreed not to pursue its request for issuance of injunctive relief as against Independent (Tr. 12).

As to defendant Playgirl, Inc., however, the circumstances were substantially different. It contended, through counsel, that there would be no further domestic distribution of the issue containing the allegedly offensive picture (Tr. 7), but advised that it did intend to distribute the magazine in England (Tr. 7-8). Plaintiff therefore renewed his application for a preliminary injunction as to Playgirl, Inc., restraining any further publication or circulation of the disputed copies. In this regard all parties agree that the court, on the basis of the *726 portrait and accompanying descriptive legend, is fully competent to decide the question of the issuance of a preliminary injunction without holding further evidentiary hearings. 5

DISCUSSION

This court concludes that plaintiff has satisfied the standard established in this Circuit for determining whether a preliminary injunction should issue. Sonesta International Hotels v. Wellington Associates, 483 F.2d 247 (2d Cir. 1973). 6 The familiar alternative test formula is that

“a preliminary injunction should issue only upon a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.”

Id. at 260 (emphasis in original). Accord, Jacobson & Co., Inc. v. Armstrong Cork Co., 548 F.2d 438 (2d Cir. 1977); Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356 (2d Cir. 1976). As set forth below, this court is satisfied that under either branch of the Sonesta test Ali is entitled to the preliminary relief he seeks.

Liability on the Merits

In determining the issues of probable success on the merits or sufficiently serious questions going to the merits of this action, it is agreed that this court must look to the substantive law of New York. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). To be considered are plaintiff’s claims that his statutory “right of privacy” under § 51 of the New York Civil Rights Law and his common law “right of publicity” have been violated. (See footnote 3).

Section 51 of the New York Civil Rights Law provides in pertinent part:

Any person whose name, portrait or picture is used within this state for . the purposes of trade without the written consent [of that person] may maintain an equitable action . . . against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injury sustained by reason of such use .

Defendants do not, and indeed cannot, seriously dispute the assertion that the offensive drawing is in fact Ali’s “portrait or picture.” 7 This phrase, as used in § 51, is not restricted to photographs, Binns v. Vitagraph Co., 210 N.Y. 51, 57, 103 N.E. 1108 (1913), but generally comprises those representations which are recognizable as likenesses of the complaining individual. Negri v. Sobering Corp., 333 F.Supp. 101, 104 (S.D.N.Y.1971). Even a cursory inspection of the picture which is the subject of this action strongly suggests that the facial characteristics of the black male portrayed are those of Muhammad Ali. The cheekbones, broad nose and wideset brown eyes, together with the distinctive smile and close cropped black hair are recognizable as the features of the plaintiff, one of the most widely known athletes of our timé. In addition, the figure depicted is seated on a stool in the corner of a boxing ring with both hands taped and outstretched resting on the ropes on either side. Although the *727 picture is captioned “Mystery Man,” the identification of the individual as Ali is further implied by an accompanying verse which refers to the figure as “the Greatest”. This court may take judicial notice that plaintiff Ali has regularly claimed that appellation for himself and that his efforts to identify himself in the public mind as “the Greatest” have been so successful that he is regularly identified as such in the news media. 8

It is also clear that the picture has been used for the “purpose of trade” within the meaning of § 51. In this regard it is the established law of New York that the unauthorized use of an individual’s picture is not for a “trade purpose”, and thus not violative of § 51, if it is “in connection with an item of news or one that is newsworthy.” Gautier v. Pro-Football, Inc., 304 N.Y. 354, 359, 107 N.E.2d 485, 488 (1952). Accord, Sidis v. F-R Pub. Corporation, 113 F.2d 806 (2d Cir.), cert, denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1940); Murray v. New York Magazine Co., 27 N.Y.2d 406, 318 N.Y.S.2d 474, 267 N.E.2d 256 (1971); Pagan v. New York Herald Tribune, 32 A.D.2d 341, 301 N.Y.S.2d 120 (1st Dept. 1969), aff’d, 26 N.Y.2d 941, 310 N.Y.S.2d 327, 258 N.E.2d 727 (1970); Lahiri v. Daily Mirror, 162 Misc. 776, 295 N.Y.S. 382 (Sup.Ct.N.Y.Co.1937). In the instant case there is no such informational or newsworthy dimension to defendants’ unauthorized use of Ali’s likeness. Instead, the picture is a dramatization, an illustration falling somewhere between representational art and cartoon, and is accompanied by a plainly fictional and allegedly libellous bit of doggerel. Defendants can-l not be said to have presented “the unem-j broidered dissemination of facts” or “the' unvarnished, unfictionalized truth,” Sidis v. F-R Pub. Corporation, supra, 113 F.2d at-810. See Flores v. Mosier Safe Co., 7 N.Y.2d 276, 196 N.Y.S.2d 975, 164 N.E.2d 853 (1959); Groucho Marx Productions, Inc. v. Playboy Enterprises, Inc., No. 77-1782, (S.D.N.Y., filed Dec. 30, 1977), at 3^; Lahiri v. Daily Mirror, supra. The nude portrait was clearly included in the magazine solely “for purposes of trade — e. g., merely to attract attention.” Grant v. Esquire, Inc., 367 F.Supp. 876, 881 (S.D.N.Y.1973).

Finally, defendants concede that Ali did not consent to the inclusion of his likeness in the February, 1978 Playgirl Magazine (Tr. 2). Defendants contend, however, that even if their use of Ali’s likeness is determined to be unauthorized and for trade purposes within the meaning of § 51, the statutory right of privacy does not extend to protect “someone such as an athlete . who chooses to bring himself to public notice, who chooses, indeed, as clearly as the plaintiff here does to rather stridently seek out publicity” (Tr. 5). Defendants are plainly in error in disputing liability on the basis of Ali’s status as a public personality. Such a contention

“confuses the fact that projection into the public arena may make for newsworthiness of one’s activities, and all the hazards of publicity thus entailed, with the quite different and independent right to have one’s personality, even if newsworthy, free from commercial exploitation at the hands of another . That [plaintiff] may have voluntarily on occasion surrendered [his] privacy, for a price or gratuitously, does not forever forfeit for anyone’s commercial profit so much of [his] privacy as [he] has not relinquished.” [citations omitted]

Booth v. Curtis Publishing Co., 15 A.D.2d 343, 351-52, 223 N.Y.S.2d 737, 745 (1st Dept.), aff’d, 11 N.Y.2d 907, 228 N.Y.S.2d 468, 183 N.E.2d 812 (1962). Accord, Gautier v. Pro-Football, Inc., supra (“the privilege [of using a public figure’s picture in connection with an item of news] does not extend to commercialization of his personality through a form of treatment distinct from the dissemination of news or information.” 304 N.Y. at 359, 107 N.E.2d at 488); Reilly v. Rapperswill Corp., 50 A.D.2d 342, 377 N.Y.S.2d 488 (1st Dept. 1975); Groucho Marx Productions, Inc. v. Playboy Enter *728 prises, Inc., supra, at 8. Accordingly, this court is satisfied that plaintiff Ali has established probable success on the merits of his claimed violation of privacy under § 51 of the New York Civil Rights Law. 9

The foregoing discussion also establishes the likelihood that plaintiff will prevail on his claim that his right of publicity has been violated by the publication of the offensive portrait. This Circuit has long held that New York recognizes the common law property right of publicity in addition to, and distinct from, the statutory right under § 51. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir.), cert, denied, 346 U.S. 816, 74 S.Ct. 26, 98 L.Ed. 343 (1953); Groucho Marx Productions, Inc. v. Playboy Enterprises, Inc., supra, at 9; Factors Etc., Inc. v. Creative Card Co., No. 77-4400, 444 F.Supp. 279 (S.D.N.Y.1975), at 7-12; Price v. Hal Roach Studios, Inc., 400 F.Supp. 836, 843-44 (S.D.N.Y.1975); Grant v. Esquire, Inc., supra, 367 F.Supp. at 879-80; Booth v. Colgate-Palmolive Co., 362 F.Supp. 343, 347 (S.D.N.Y.1973); Chaplin v. National Broadcasting Co., 15 F.R.D. 134, 139-40 (S.D.N.Y. 1953). See also Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977); Cepeda v. Swift & Co., 415 F.2d 1205 (8th Cir. 1969); Ettore v. Philco Television Broadcasting, 299 F.2d 481 (3rd Cir. 1956); Uhlaender v. Henricksen, 316 F.Supp. 1277 (D.Minn. 1970).

It must be noted, however, that the courts of New York do not regularly distinguish between the proprietary right of publicity, discussed infra, and the § 51 right of privacy. The latter has been characterized as establishing and limiting the right of a person “to be left alone” and protecting “the sentiments, thoughts and feelings of an individual . - from [unwanted] commercial exploitation,” Flores v. Hosier Safe Co., supra, 7 N.Y.2d at 280, 196 N.Y. S.2d at 977-78, 164 N.E.2d at 855, but numerous cases blend the concepts together and expressly recognize a right of recovery under § 51 for violations of an individual’s property interest in his likeness or reputation. See, e. g., Redmond v. Columbia Pictures Corp., 277 N.Y. 707, 14 N.E.2d 636 (1938); Rosemont Enterprises, Inc. v. Urban Systems, Inc., 72 Misc.2d 788, 790, 340 N.Y.S.2d 144, 146 (Sup.Ct.N.Y.Co.), aff’d as mod’d, 42 A.D.2d 544, 345 N.Y.S.2d 17 (1973); Rosenberg v. Lee’s Carpet & Furniture Warehouse Outlet, Inc., 80 Misc.2d 479, 481, 363 N.Y.S.2d 231, 233 (Sup.Ct.N.Y.Co. 1974); Gautier v. Pro-Football, Inc., 278 App.Div. 431, 438,106 N.Y.S.2d 553, 560 (1st Dept. 1951), aff’d, 304 N.Y. 354 (1952). Accord, Manger v. Kree Institute of Electrolysis, 233 F.2d 5, 9 n.5 (2d Cir. 1956) (dictum); Grant v. Esquire, Inc., supra, 367 F.Supp. at 879-80.

The distinctive aspect of the common law right of publicity is that it recognizes the commercial value of the picture or representation of a prominent person or performer, and protects his proprietary interest in the profitability of his public reputation or “persona.” See Zacchini v. Scripps-Howard Broadcasting Co., supra, 433 U.S. at 573, 97 S.Ct. 2849. As held by this Circuit, New York State recognizes that, independent of his § 51 rights, “a man has a right in the publicity value of his photograph, i. e., the right to grant the exclusive privilege of publishing his picture.” Haelan Laboratories v. Topps Chewing Gum, supra, 202 F.2d at 868. This common law publicity right is analogous to a commercial entity’s right to profit from the “goodwill” it has built up in its name, Grant v. Esquire, Inc., supra, 367 F.Supp. at 879; Chaplin v. NBC, supra, 15 F.R.D. at 140; see Ettore v. Philco Television Broadcasting, supra, 299 F.2d at 490, and the interest which underlies protecting the right of publicity “ ‘is the straightforward *729 one of preventing unjust enrichment by the theft of good will.’ ” Kalven, Privacy in Tort Law — Were Warren and Brandeis Wrong?, 31 Law and Contemporary Problems, 326, 331 (1966), quoted in Zacchini, supra, 433 U.S. at 576, 97 S.Ct. 2849.

Accordingly, this right of publicity is usually asserted only if the plaintiff has “achieved in some degree a celebrated status.” Price v. Hal Roach Studios, Inc., supra, 400 F.Supp. at 847, quoting Gordon, Right of Property in Name, Likeness, Personality and History, 55 Nw. U.L.Rev. 553, 607 (1960). In the instant case, it is undisputed that plaintiff Ali has achieved such a “celebrated status” and it is clear to this court that he has established a valuable interest in his name and his likeness. As in Grant v. Esquire, Inc., supra, this court “can take judicial notice that there is a fairly active market for exploitation of the faces, names and reputations of celebrities.” 367 F.Supp. at 881. There can be little question that defendants’ unauthorized publication of the portrait of Ali amounted to a wrongful appropriation of the market value of plaintiff’s likeness.

Irreparable Injury

It is established that plaintiff must make a showing of irreparable injury under either branch of the Sonesta test, State of New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750 (2d Cir. 1977); Triebwasser & Katz v. American Tel. & Tel. Co., supra, 535 F.2d at 1359, and under the circumstances outlined supra, this court is persuaded that plaintiff has met this burden.

As has been noted, in the course of his public career plaintiff has established a commercially valuable proprietary interest in his likeness and reputation, analogous to the good will accumulated in the name of a successful business entity. To the extent that defendants are unlawfully appropriating this valuable commodity for themselves, proof of damages or unjust enrichment may be extremely difficult. Cf. Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190 (2d Cir. 1971) (difficulty of proof of loss of sales in infringement action constitutes irreparable injury); see Interphoto Corp. v. Minolta Corp., 417 F.2d 621 (2d Cir. 1969). In virtually identical circumstances it has been observed that “a celebrity’s property interest in his name and likeness is unique, and therefore there is no serious question as to the propriety of injunctive relief.” Uhlaender v. Henricksen, supra, 316 F.Supp. at 1283. Furthermore, defendants appear not only to be usurping plaintiff’s valuable right of publicity for themselves but may well be inflicting damage upon this marketable reputation. As described previously, the “likeness” of Ali which has been published is a full frontal nude drawing, not merely a sketch or photograph of him as he appears in public. Damages from such evident abuse of plaintiff’s property right in his public reputation are plainly difficult to measure by monetary standards. Myers v. U.S. Camera Publishing Corp., 9 Misc.2d 765, 167 N.Y.S.2d 771, 774 (City Ct.N.Y.1957). As this Circuit "has noted in the preliminary injunction context, “difficulty [in computing damages] is especially common when damage to reputation, credibility or good will is present.” Dino DeLaurentis Cinematografica v. D-150, Inc., 366 F.2d 373, 376 (2d Cir. 1966) (citing cases). Such difficulty in determining monetary damages leaves plaintiff without an adequate remedy at law and satisfactorily establishes irreparable injury for purposes for preliminary equitable relief. Triebwasser & Katz v. American Tel. & Tel. Co., supra, 535 F.2d at 1359; Danielson v. Local 275, Laborers International Union, 479 F.2d 1033, 1037 (2d Cir. 1973); Omega Importing Corp. v. Petri-Kine Camera Co., supra, 451 F.2d at 1195.

This court also notes that, although it appears that routinely scheduled newsstand circulation of the contested issue of Playgirl Magazine has ceased, it is established that voluntary cessation of illegal conduct does not deprive the court of the power to grant injunctive relief. United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). Under all the circumstances, plaintiff has satisfied *730 the court that preliminary relief is needed. The market for publications in New York is not limited to newsstand sales, plaintiff’s counsel indicated that there may be such demand for copies of the magazine that premium prices are offered (Tr. 11-12), and the disputed issues are within the jurisdiction of the court. Consequently, the effectiveness of the discontinuance of violations is not guaranteed, see W. T. Grant, supra, 345 U.S. at 633, 73 S.Ct. 894, and this court concludes that preliminary relief is in order.

Remaining Issues

Defendant Playgirl, Inc. contends that under New York law any injunction which issues cannot extend to prohibit publication or distribution of the portrait complained of beyond the boundaries of New York State, citing Rosemont Enterprises, Inc. v. Urban Systems, Inc., 42 A.D.2d 544, 345 N.Y.S.2d 17 (1st Dept. 1973). Consequently, Playgirl, Inc. takes the position that, although it is subject to the in personam jurisdiction of this court and has announced its intention to distribute the issue of Playgirl Magazine containing the offensive picture throughout England, the court is without authority to restrain that distribution. This court cannot agree.

Although the issue is not entirely free from question, this court agrees that, under the rule of Erie Railroad Co. v. Tompkins, it is to be guided by applicable state law in determining the geographical scope of any injunction it issues in aid of state law rights. See Franke v. Wiltschek, 209 F.2d 493, 496-97 (2d Cir. 1953) (applying Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)); Copylease Corp. of America v. Memorex Corp., 408 F.Supp. 758, 758-59 (S.D.N.Y.1976); Port of New York Authority v. Eastern Air Lines, Inc., 259 F.Supp. 745, 753 (E.D.N.Y.1966). Accord, 2 Moore, Federal Practice, ¶ 2.09 at 452-56 (2d ed. 1975) and 7 id. ¶ 65.18[1] at 1683-84; but cf. Stern v. South Chester Tube Co., 390 U.S. 606, 609-610, 88 S.Ct. 1332, 20 L.Ed.2d 177 (1968); Columbia Nastri & Carta Carbone v. Columbia Ribbon & Carbon Mfg. Co., Inc., 367 F.2d 308, 313 n.5 (2d Cir. 1966); Clarke Equipment Co. v. Armstrong Equipment, 431 F.2d 54, 57 (5th Cir. 1970). The New York case relied on by defendants for the proposition that any injunction issued by this court must not extend beyond New York, Rosemont supra, 42 A.D.2d 544, 345 N.Y.S.2d 17, restricts the extent of § 51 injunctive relief in certain circumstances due to a concern for possible conflicts between the law of New York and the applicable law of other jurisdictions. In that regard this court is clearly bound by the law of New York. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

However, defendant Playgirl, Inc., misconstrues the rationale of Rosemont and its applicability to the facts of the instant action. That case arose from a suit brought under § 51 of the Civil Rights Law by Howard Hughes. The lower court held that the defendants’ unauthorized marketing and distribution of “The Howard Hughes Game,” a board game based on plaintiff Hughes’ career, constituted an appropriation of plaintiff’s property rights in his name and career in violation of § 51. Rosemont Enterprises, Inc. v. Urban Systems, Inc., 72 Misc.2d 788, 790-91, 340 N.Y.S.2d 144, 146-47 (Sup.Ct. N.Y.Co. 1973). As to. equitable relief, the lower court held that with the exception of his co-plaintiff, with whom he had an assignment contract, “[pjlaintiff is free to protect himself from the exploitation of his name and likeness against all the world,” 72 Misc.2d at 791, 340 N.Y.S.2d at 147 (emphasis added). On appeal the Appellate Division, in a three-sentence per curiam decision, affirmed as to liability but modified the unlimited scope of the injunction. The court’s holding was that

“the injunction should be restricted to activities, such as manufacturing, distributing, selling, etc., in the State of New York. In other jurisdictions (see Hofstadter and Horowitz, Right of Privacy [1964]), the law with respect to the right of privacy could have other efficacy with respect to a public figure (cf. Sidis v. F-R *731 Pub. Corp., 113 F.2d 806 (2d Cir. 1940), cert, denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 [1940]), both in common law interpretation and in statutes. Cf. Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 [1971].” 42 A.D.2d at 544, 345 N.Y.S.2d at 18.

Careful examination of this holding in light of the lower court injunction compels the conclusion that the Appellate Division did not intend to establish a flat prohibition against any § 51 injunction extending beyond the limit of New York State. 10 Rather, reviewing an injunction which declared plaintiff’s rights under § 51 to be equitably protected as “against all the world,” the Appellate Division recognized that, as a practical matter, such global restraint would plainly involve intrusions into unknown foreign jurisdictions of such numbers and varieties of substantive law that no conflict-of-law analysis concerning the law of privacy could be undertaken. Consequently, the reviewing court exercised its discretion under the facts before it to note simply that “[i]n other jurisdictions, the law with respect to the right of privacy could have other efficacy with respect to a public figure” 42 A.D.2d at 544, 345 N.Y.S.2d at 18 (emphasis added; citations omitted), and to restrict application of the injunction to New York.

In the present case, by contrast, this court is not faced with- factual circumstances involving the necessity of equitable relief running throughout numerous indeterminable jurisdictions. Defendant Playgirl, Inc., has represented its intention to distribute overseas only in England. For purposes of the motion for preliminary relief and compliance with the second branch of the Sonesta test, this court concludes that the law of England with respect to plaintiff’s right of privacy, at least insofar as it includes his proprietary right of publicity and reputation, is such that under it there exist “sufficiently serious questions going to the merits to make them a fair ground for litigation.” Sonesta International Hotels v. Wellington Associates, supra, 483 F.2d at 250. See generally, Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902) (holding no common law right to protection of injured feelings and discussing and distinguishing English cases granting equitable restraint where use of plaintiff’s name would injure his reputation or property. Id., at 547-550, 64 N.E. 442); Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68 (1905) (finding right of privacy “derived from natural law,” id. at 70, and analyzing English cases); Brittan, The Right of Privacy in England and the United States, 37 Tul.L. Rev. 235 (1963). Furthermore, the balance of hardships tips decidedly toward Ali in this matter, for defendant Playgirl, Inc. is merely being restrained from further distribution and is not being affirmatively ordered to undertake new or unduly burdensome obligations. Since all the parties and legal contentions are presently before this court, to require plaintiff to commence a new action in England would subject him to unnecessary and avoidable hardship. Finally, as discussed previously, plaintiff has satisfied this court that there is a strong possibility of irreparable injury absent the issuance of a preliminary injunction. For the foregoing reasons, the preliminary injunction shall extend to restrain defendants’ activities with respect to all copies of the magazine containing the disputed portrait in England as well as New York.

CONCLUSION

A hearing on the issue of a permanent injunction shall be scheduled promptly. Among the issues there to be determined is whether or not the privacy or publicity law of England does in fact “have other efficacy with respect to a public figure.” Rosemont Enterprises v. Urban Systems, Inc., *732 supra, 42 A.D.2d at 544, 345 N.Y.S.2d 18. See Rule 44.1, Fed.R.Civ.P. In addition, plaintiff will maintain the burden of establishing that there is a likelihood of recurrent violations of his rights. United States v. W. T. Grant, supra. Accordingly, plaintiff’s request for preliminary relief pursuant to Rule 65 is granted. Defendant Playgirl, Inc., is hereby enjoined from further distribution and dissemination of any copies of the February, 1978 issue of Playgirl Magazine containing the portrait complained of, and shall neither transfer nor remove from the jurisdiction any such copies presently in its custody, as well as the printing plates or devices used to reproduce the portrait, until further order of the court. Defendant Independent News is hereby directed to retain in its possession, pursuant to its stipulation at the hearing on February 2, those copies of the February, 1978 issue of Playgirl Magazine it has recovered and impounded.

So Ordered.

Per Curiam.

Plaintiffs appeal as of right from a circuit court order that granted summary disposition for defendants Lynn Mills and Sister Lois Mitoraj. We affirm in part, reverse in part, and remand.

i

Plaintiffs, using pseudonyms to protect their identity, commenced this action against defendants Lynn Mills, Sister Lois Mitoraj, and Mitoraj’s religious order, The Felician Sisters of O.S.F. of Livonia, for the torts of invasion of privacy and intentional infliction of emotional distress. According to plaintiffs’ complaint, defendants Mills and Mitoraj (hereinafter defendants), while protesting outside the Women’s Advisory Center in Livonia, displayed the real names of plaintiffs Jane Doe and Sally Roe on "large signs” that were "held up for public view.” The signs indicated that Doe and Roe were about to undergo abortions and implored them, inter alia, not to "kill their babies.” Plaintiffs alleged that they did not give defendants permission to publicize the fact of their abortions. To the contrary, it was plaintiffs’ intent to "keep the fact of their abortions private, confidential, and free from any publicity.”

Plaintiffs alleged two different theories of invasion of privacy. Count n was labeled "public disclosure of private facts” and count m was labeled "intrusion upon seclusion.” In addition, plaintiffs brought a claim for intentional infliction of emotional distress.

Defendants Mills and Mitoraj brought a motion *78 for summary disposition pursuant to MCR 2.116(C) (8) and (10). 1 The motion was supported by the affidavits of Robert Thomas, a nonparty, and defendant Mills. Thomas stated in his affidavit that he went to the Women’s Advisory Center on June 1, 1991, at approximately 10:30 p.m., and climbed into a refuse dumpster that was located in the parking lot. Inside the dumpster, Thomas found a piece of paper indicating that plaintiffs Doe and Sally Roe were about to undergo abortions. Thomas gave this information to Mills the following day. Mills stated in her affidavit that she and Mitoraj went to the Women’s Advisory Center on June 8, 1991, believing that Doe and Sally Roe would be arriving that day to have an abortion. Mills claimed that it was her intent to persuade both Doe and Sally Roe not to have an abortion and, therefore, she placed their names on two separate signs in order to "capture [their] attention.” Mills took one sign and Mitoraj the other, and then both of them held the signs up for public view while positioned at the entrance to the Women’s Advisory Center’s parking lot.

In opposition to defendants’ motion, plaintiffs submitted a portion of Mills’ deposition testimony wherein Mills admitted that, before displaying the signs, she was aware that Thomas had obtained the information concerning plaintiffs from the garbage at the Women’s Advisory Center. Plaintiffs did not submit any evidence indicating that either defendant was involved along with Thomas in obtaining the information from the garbage.

In an opinion dated November 9, 1993, the trial court granted defendants summary disposition of each of the two claims of invasion of privacy as well as the claim for intentional infliction of emotional distress. Plaintiffs appeal._

*79 ii

MCR 2.116(C)(8) permits summary disposition when the "opposing party has failed to state a claim on which relief can be granted.” Under MCR 2.116(CX8), only the pleadings are examined and the court must determine whether the pleadings allege a prima facie case. Radtke v Everett, 442 Mich 368, 373; 501 NW2d 155 (1993); Azzar v Primebank, FSB, 198 Mich App 512, 516; 499 NW2d 793 (1993). All well-pleaded facts must be accepted as true. Radtke, supra. Only if the allegations fail to state a legal claim will summary disposition pursuant to MCR 2.116(C)(8) be proper. Id.

MCR 2.116(0(10) tests the factual basis underlying a claim. Summary disposition is permitted under MCR 2.116(0(10) when "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law”’ In ruling on such a motion, the court must consider the pleadings, together with any affidavits, depositions, admissions, or other evidence submitted by the parties. Radtke, supra at 374. The court must give the benefit of any reasonable doubt to the opposing party and may not grant the motion unless, after reviewing the pleadings and supporting documents, it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Stevens v McLouth Steel Products Corp, 433 Mich 365, 370; 446 NW2d 95 (1989).

hi

Plaintiffs first argue that the trial court erred in dismissing their two claims of invasion of privacy.

The tort of invasion of privacy is based on a *80 common-law right to privacy, which is said to protect against four types of invasion of privacy: (1) intrusion upon the plaintiffs seclusion or solitude or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity that places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant’s advantage, of the plaintiffs name or likeness. Tobin v Civil Service Comm, 416 Mich 661, 672; 331 NW2d 184 (1982); Lewis v Dayton-Hudson Corp, 128 Mich App 165, 168; 339 NW2d 857 (1983). Only the first two types of claims are involved in this case. We find that the trial court erred in dismissing plaintiffs’ claim for public disclosure of embarrassing private facts, but that summary disposition of the claim regarding intrusion upon seclusion was proper.

A. PUBLIC DISCLOSURE OF EMBARRASSING PRIVATE FACTS

A cause of action for public disclosure of embarrassing private facts requires (1) the disclosure of information (2) that is highly offensive to a reasonable person and (3) that is of no legitimate concern to the public. Winstead v Sweeney, 205 Mich App 664, 668; 517 NW2d 874 (1994); Duran v Detroit News, Inc, 200 Mich App 622, 631; 504 NW2d 715 (1993).

Plaintiffs meet the first element of this action because they allege that defendants, while protesting in public, disclosed information publicizing their decision to have an abortion.

Regarding the second element, the trial court stated:

The words on the placards that were carried by the defendants conveyed the message that plain *81 tiffs were contemplating and or scheduling an abortion. This is the disclosed information. Would plaintiffs seriously suggest or argue that one who contemplates or schedules an abortion has committed an act that is highly offensive to a reasonable person?

We disagree with the trial court to the extent it suggested the disclosure of the information was not actionable as a matter of law.

In analyzing a claim of invasion of privacy, courts generally have embraced the provisions of the Restatement of Torts describing that tort. See Tobin, supra at 672-673; Winstead, supra at 668, 675.

The Restatement of Torts describes the type of publicity that will give rise to an action for public disclosure of embarrassing private facts:

The rule stated in this Section gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable man. ... It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises. [3 Restatement Torts, 2d, § 652D, comment c, p 387.]

Whether a public disclosure involves "embarrassing private facts” has been held to be a question of fact for the jury. Beaumont v Brown, 401 Mich 80, 106; 257 NW2d 522 (1977); Winstead, supra at 673; YG & LG v Jewish Hosp of St Louis, 795 SW2d 488, 503 (Mo App, 1990).

Here, plaintiffs allege that defendants publicized the fact of their abortions despite their intent to keep this matter "private, confidential, and free from any publicity.” Plaintiffs further allege that the publicity given by defendants was highly offen *82 sive and was deliberately calculated to embarrass and humiliate them, which it allegedly did. We cannot say that a reasonable person would not be justified in feeling seriously aggrieved by such publicity. Rather, we find that plaintiffs’ allegations are sufficient to constitute a question for the jury regarding whether embarrassing private facts were involved in a public disclosure.

In order to satisfy the final element of an action for public disclosure of embarrassing private facts, the information disclosed must concern the individual’s private life. Liability will not be imposed for giving publicity to matters that are already of public record or otherwise open to the public. Winstead, supra; Ledsinger v Burmeister, 114 Mich App 12; 318 NW2d 558 (1982).

In describing those matters that will support an action for public disclosure of private facts, the Restatement of Torts states:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters. [3 Restatement Torts, 2d, §652D, comment b, p 386.]

The Restatement of Torts also notes that the extent of the authority to make public private facts about a public figure is not unlimited:

There may be some intimate details of [a motion picture actress’] life, such as sexual relations, which even the actress is entitled to keep to herself. [3 Restatement Torts, 2d, § 652D, comment h, p 391.]

Matters concerning a person’s medical treat *83 ment or condition are also generally considered private. See, e.g., MCL 600.2157; MSA 27A.2157; Swickard v Wayne Co Medical Examiner, 438 Mich 536, 560; 475 NW2d 304 (1991). See also YG & LG, supra at 500.

In this case, the trial court observed that the subject of abortion is one of public interest and, for that reason, intimated that plaintiffs could not satisfy the final element:

It is this court’s opinion that abortion, no matter how one views this subject, is unquestionably a matter of great public concern. . . . Because abortions are so controversial in our society, events surrounding abortions do attract considerable public attention, witness the heavy picketing of abortion clinics and the extensive amount of publicity the subject of abortion receives. So, it is doubtful that plaintiffs could ever establish the third element of this cause of action because plaintiffs were involved in an event that attracts public attention.

We disagree with the trial court’s reasoning.

"The fact that [persons] engage in an activity in which the public can be said to have a general interest does not render every aspect of their lives subject to public disclosure. Most persons are connected with some activity, vocational or avocational, as to which the public can be said as a matter of law to have a legitimate interest or curiosity. To hold as a matter of law that private facts as to such persons are also within the area of legitimate public interest could indirectly expose everyone’s private life to public view.” [Winstead, supra at 674, quoting Virgil v Time, Inc, 527 F2d 1122, 1131 (CA 9, 1975).]

The Missouri Court of Appeals applied this principle in YG & LG, supra. In that case, the plaintiffs sued a television station for invasion of privacy *84 after the station filmed the plaintiffs’ participation in a hospital’s in vitro fertilization program without the plaintiffs’ consent. The Missouri Court of Appeals agreed that a private matter was involved, notwithstanding the public’s interest in in vitro fertilization:

The in vitro program and its success may well have been matters of public interest, but the identity of the plaintiffs participating in the program was, we conclude, a private matter. It did concern matters of procreation and sexual relations as well as medical treatment — all private matters. The in vitro fertilization program participation was certainly not a matter of public record nor did it become of public concern due to any of the ordinary incidents of public concern. [795 SW2d at 500.]

Likewise, in this case, plaintiffs’ complaint alleges a private matter. The alleged disclosure concerns the plaintiffs’ decisions to have an abortion. We have no hesitancy in concluding that such an allegation involves a matter that a reasonable person would consider private. Indeed, abortion concerns matters of sexual relations and medical treatment, both of which are regarded as private matters. Furthermore, even though the abortion issue may be regarded as a matter of public interest, the plaintiffs’ identities in this case were not matters of legitimate public concern, nor a matter of public record, but, instead, were purely private matters. We conclude, therefore, that plaintiffs’ allegations are sufficient to meet the minimum prima facie showing necessary to establish that the information disclosed must concern a private matter. 2

*85 Accordingly, we find that plaintiffs have alleged a prima facie case of public disclosure of embarrassing private facts, thereby making summary disposition for the defendants pursuant to MCR 2.116(C)(8) improper.

The trial court ruled that, even if plaintiffs had alleged a cause of action for public disclosure of embarrassing private facts, summary disposition was still warranted pursuant to MCR 2.116(0(10), given that the undisputed facts showed that defendants had learned of each plaintiff’s decision to have an abortion from a document that was obtained from the trash at the Women’s Advisory Center. Relying on cases construing the scope of protection under the Fourth Amendment of the United States Constitution, 3 the trial court ruled that, because information concerning plaintiffs’ decisions to have an abortion had been discarded into the trash, plaintiffs had lost their right of privacy with respect to that information.

The flaw in the trial court’s analysis is that plaintiffs’ action is not based on a constitutional right of privacy, but on a right of privacy under the common law. Tobin, supra at 672; Beaumont, supra at 95. As was observed by the court in McNally v Pulitzer Publishing Co, 532 F2d 69, 76 (CA 8, 1976), "[t]he constitutional right of privacy is not to be equated with the common law right recognized by state tort law.”

Along these same lines, the United States Supreme Court in Katz v United States, 389 US 347, 350-351; 88 S Ct 507; 19 L Ed 2d 576 (1967), stated:

*86 [T]he Fourth Amendment cannot be translated into a general constitutional "right of privacy.” That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person’s general right to privacy— his right to be let alone by other people — is, like the protection of his property and of his very life, left largely to the law of the individual States.

Courts from this state have likewise recognized that the scope of privacy under the common law is not coextensive with a constitutional right to privacy. Swickard, supra at 547, 556; Tobin, supra at 671-677; Beaumont, supra at 95.

Furthermore, while the aim of the Fourth Amendment is to provide "protection of] individual privacy against certain kinds of governmental intrusion,” Katz, supra at 350, an action for public disclosure of embarrassing private facts is concerned, not with governmental intrusions, but with protecting a person’s common-law right to be free of unreasonable or unnecessary publicity of one’s private matters, Beaumont, supra at 104-105.

We conclude, therefore, that the trial court erred in relying on cases construing the Fourth Amendment as a basis for concluding that plaintiffs had somehow lost their common-law privacy rights.

Although it is possible for the right of privacy to be waived or lost by a course of conduct that estops its assertion, Earp v Detroit, 16 Mich App 271, 278, n 5; 167 NW2d 841 (1969), the facts of this case do not establish any waiver. It has been said that " '[t]here can never be a waiver of the right of privacy, in the absence of knowledge and *87 consent of the person entitled to waive.’ ” Id., quoting 77 CJS, Right of Privacy, § 6, p 414. Moreover, an implied waiver requires a "clear, unequivocal, and decisive act of the party showing such a purpose.” 62A Am Jur 2d, Privacy, § 226, p 836.

According to the undisputed facts in this case, a nonparty learned of plaintiffs’ decisions to have an abortion from a document that had been discarded into the trash. There is no evidence that either plaintiff personally discarded the document or had knowledge that the document was discarded. Moreover, even if plaintiffs had discarded the document, such an act does not demonstrate consent to having information in that document publicly disclosed. Therefore, the facts do not establish a waiver of plaintiffs’ common-law privacy rights.

Defendants also maintain that the undisputed facts show that they did not give publicity to a private matter because the Women’s Advisory Center is located in a public place and plaintiffs’ "comings and goings to the clinic were acts exposed to the public eye.” The information disclosed, however, concerned an activity that took place within the private confines of the clinic, a matter which was not "exposed to the public eye.” Also, merely because plaintiffs’ "comings and goings” may have been visible to members of the public does not mean that the public was aware of the precise purpose of those "comings and goings.” Moreover, we agree with the court in YG & LG, supra, which held, in a similar context, that the plaintiffs there did not lose their privacy rights with respect to their participation in an in vitro fertilization program merely because they attended the program at a public hospital. The court noted:

By so attending this limited gathering, [the *88 plaintiffs] did not waive their right to keep their condition and the process of in vitro private, in respect to the general public.

In addition, we cannot hold that attendance at the gathering constituted an appearance in a public place so as to subject appellants to publicity. [795 SW2d at 502-503.]

Therefore, for the reasons stated, we reverse the trial court’s judgment granting the defendants’ motion for summary disposition of plaintiffs’ claim for public disclosure of embarrassing private facts.

B. INTRUSION UPON SECLUSION

An action for intrusion upon seclusion focuses on the manner in which information is obtained, not its publication; it is considered analogous to a trespass. Tobin, supra at 673-674; Lewis, supra at 168. There are three necessary elements to establish a prima facie case of intrusion upon seclusion: (1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter through some method objectionable to a reasonable man. Tobin, supra at 672.

In this case, the alleged wrongful actions that form the basis of plaintiffs’ claim of intrusion relate only to the publication of information, not to any wrongful intrusion. Specifically, plaintiffs’ complaint alleges:

Defendants intentionally intruded upon the private affairs of the Plaintiffs by publicizing the fact that Jane Doe and Sally Roe intended to undergo abortions. [Emphasis added.]

In Tobin, our Supreme Court noted that an action *89 for intrusion does not exist where "[t]he only aspect of the contemplated disclosure offensive to the plaintiffs is the fact of disclosure, not the method by which it was obtained.” Tobin, supra at 674. That is exactly the situation in this case. Therefore, because plaintiffs’ complaint alleges only the fact of disclosure and does not allege any offensive intrusion, we conclude that summary disposition of plaintiffs’ intrusion claim was proper pursuant to MCR 2.116(C)(8).

Although not specifically alleged, plaintiffs argue that a cause of action for intrusion exists because the evidence shows that the information about plaintiffs was obtained from a garbage dumpster at the Women’s Advisory Center. 4 The trial court rejected this argument, however, noting that, even if the search of the garbage could be considered a wrongful intrusion, the undisputed facts showed that the search was conducted by Robert Thbmas, a nonparty, and there was no evidence showing that either defendant was involved along with Thomas in obtaining the information from the garbage.

Plaintiffs insist, however, that liability still may be imposed under an intrusion theory because defendant Mills admitted in her deposition that she was aware of the source of the information before publicizing it. We disagree.

In Pearson v Dodd, 133 US App DC 279; 410 F2d 701 (1969), Dodd brought an action for invasion of privacy after two former employees removed some confidential files from Dodd’s office and turned them over to Pearson and Anderson, who later published the information. The court rejected *90 Dodd’s claim that liability could be imposed on Pearson and Anderson under an intrusion theory of invasion of privacy, even if they were aware at the time of publication that the information had been obtained by improper means. The court stated:

The question then becomes whether appellants Pearson and Anderson improperly intruded into the protected sphere of privacy of appellee Dodd in obtaining the information on which their columns were based. In determining this question, we may assume, without deciding, that appellee’s employees and former employees did commit such an improper intrusion when they removed confidential files with the intent to show them to unauthorized outsiders.

Although appellee’s complaint charges that appellants aided and abetted in the removal of the documents, the undisputed facts, narrowed by the District Judge with the concurrence of counsel, established only that appellants received copies of the documents knowing that they had been removed without authorization. If we were to hold appellants liable for invasion of privacy on these facts, we would establish the proposition that one who receives information from an intruder, knowing it has been obtained by improper intrusion, is guilty of a tort. . . .

Of course, appellants did more than receive and peruse the copies of the documents taken from appellee’s files; they published excerpts from them in the national press. But in analyzing a claimed breach of privacy, injuries from intrusion and injuries from publication should be kept clearly separate. [Id. at 282-283.]

This rationale is directly applicable to the instant case and persuades us that Mills’ mere receipt of the information from Thomas, even with knowledge of its source, is insufficient to subject her to liability under an intrusion theory.

*91 Accordingly, we conclude that summary disposition of plaintiffs’ claim of intrusion upon seclusion was proper.

IV

Plaintiffs next argue that the trial court erred in dismissing their claim of intentional infliction of emotional distress. The elements of this tort are: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Linebaugh v Sheraton Michigan Corp, 198 Mich App 335, 342; 497 NW2d 585 (1993).

The trial court ruled that, while plaintiffs sufficiently had alleged a cause of action for intentional infliction of emotional distress, summary disposition was justified pursuant to MCR 2.116(C) (10), because the facts before the court failed to demonstrate that defendants engaged in conduct that could be considered extreme and outrageous. We disagree.

Liability for the intentional infliction of emotional distress has been found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Linebaugh, supra. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Id. It has been said that the case is generally one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!” Roberts v Auto-Owners Ins Co, 422 Mich 594, 603; 374 NW2d 905 (1985).

*92 In reviewing such a claim, it is initially for the court to determine whether the defendant’s conduct reasonably may be regarded as so extreme and outrageous as to permit recovery. Sawabini v Desenberg, 143 Mich App 373, 383; 372 NW2d 559 (1985). However, "[w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” 1 Restatement Torts, 2d, §46, comment h, p 77. See also Linebaugh, supra at 342-343 (whether conduct is sufficiently outrageous and extreme to render one liable for the intentional infliction of emotional distress is a matter for determination by the trier of fact).

The conduct in this case involved defendants identifying plaintiffs by name and publicizing the fact of their abortions by displaying such information on large signs that were held up for public view. In ruling that defendants’ conduct was not sufficiently extreme and outrageous so as to permit recovery, the trial court was influenced in part by its conclusion that the information disclosed did not concern a private matter, inasmuch as it was obtained from a document that had been discarded into the trash. As we discussed previously, however, the trial court erred in reaching this conclusion. The trial court also observed that defendants have a constitutional right to "protest peaceably against abortion.” However, the objectionable aspect of defendants’ conduct does not relate to their views on abortion or their right to express those views, but, rather, to the fact that defendants gave unreasonable or unnecessary publicity to purely private matters involving plaintiffs. Finally, the trial court observed that there is no statute prohibiting the kind of activity engaged in by defen *93 dants. It is not necessary, however, that a defendant’s conduct constitute a statutory violation in order for it to be found extreme and outrageous.

We are of the opinion that the trial court erred in granting the defendants’ motion for summary disposition of plaintiffs’ claim of intentional infliction of emotional distress. Defendants’ conduct involved more than mere insults, indignities, threats, annoyances, or petty oppressions. We believe this is the type of case that might cause an average member of the community, upon learning of defendants’ conduct, to exclaim, "Outrageous!” Because reasonable men may differ with regard to whether defendants’ conduct may be considered sufficiently outrageous and extreme so as to subject them to liability for intentional infliction of emotional distress, this matter should be determined by the trier of fact.

Accordingly, we reverse the trial court’s decision granting the defendants’ motion for summary disposition of plaintiffs’ claim of intentional infliction of emotional distress.

Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.

DURRANT, Justice:

1 1 Zianibeth Shattuck-Owen sued her employer, Snowbird Corporation, for invasion of privacy and breach of contract. Snowbird moved for summary judgment on both claims, arguing that the claims were barred by the Workers' Compensation Act and that Shattuck-Owen could not prove all the elements of her claims. The trial court granted the motion. Shattuck-Owen appeals the trial court's decision. We affirm in part and reverse in part.

BACKGROUND

12 Shattuck-Owen worked as a server in Snowbird's banquet department. On May 24, 1996, she was scheduled to work two consecutive shifts, After completing her first shift, she retired to a lounge area to rest. While there, an unidentified man sexually assaulted her. The assault was recorded by Snowbird surveillance cameras. After the assault, Shattuck-Owen immediately informed her supervisor, who in turn reported the incident to Snowbird management. Management notified the police, who began an investigation.

13 Snowbird admits showing the surveillance video to nine people in conjunction with the investigation: 1) Richard Caldwell, Investigative Coordinator for Snowbird's Department of Public Safety; 2) Randy Keisker, Assistant Director for Snowbird's Department of Public Safety; 3) Dan Green, Snowbird investigator; 4) Brian Florida, Snowbird's Executive Chef, who viewed the tape to rule out the possibility that the perpetrator was one of his employees; 5) Heather Blume, Snowbird's Food and Beverage Manager, who viewed the tape to rule out her employees; 6) Tom Maxfield, Snowbird's Bell Captain and Valet Supervisor, who viewed the tape to rule out his employees; 7) Janine Wyatt, Snowbird's Conference Service Manager, who probably viewed the tape to rule out her employees; 8) Terry Comstock, Sandy Police Department, who was investigating a rapist in Sandy, Utah; and 9) Linda Ziprich, a victim of the Sandy rapist.

1 4 In addition to these nine people, Shat-tuck-Owen alleges that her supervisor, Brett Hanson, watched the video, as did two or three other "individuals who were walking in and out of the security office while the tape was showing." '

{5 In early June, Shattuck-Owen contacted Kerry Roberts, Snowbird's Human Resources Director. Roberts suggested that Shattuck-Owen contact Michelle Myers, a therapist who worked with Snowbird's Employee Assistance Program, to help Shat-tuck-Owen deal with the trauma caused by the assault. Shattuck-Owen expressed a preference to see a private therapist with whom she already had a comfortable relationship. According to Shattuck-Owen, Roberts told her to first see Michelle Myers, and if Myers felt Shattuck-Owen would be better served by seeing a private therapist, then Roberts "saw no reason why Snowbird would not be willing to help" or "support" her.

I 6 Shattuck-Owen did consult with Myers, who recommended that Shattuck-Owen work with her own therapist. Snowbird refused to pay for Shattueck-Owen's therapy. Shat-tuck-Owen never pursued Workers' Compensation benefits for any injuries stemming from the assault or for the costs of therapy.

17 In September 1997, Shattuck-Owen filed suit against Snowbird, claiming that it invaded her privacy by carelessly allowing numerous people to view the video of the sexual assault. Shattuck-Owen also claimed that Snowbird had contracted to pay her therapy bills and breached that contract. Snowbird moved for summary judgment, arguing that both claims were barred by the exclusive remedy provision of the Workers' Compensation Act. In addition, Snowbird argued that even if the claims were not barred, they failed as a matter of law. Specifically, Snowbird asserted that Shattuek-Owen could not prove all the elements of her invasion of privacy claim, and that she could not prove breach of contract because no valid contract existed. As to the validity of the alleged contract, Snowbird asserted that Roberts had no authority to enter into a contract for Snowbird, and that the conversation creating *558 the alleged contract lacked sufficiently definite terms.

18 Following oral argument, the trial court granted summary judgment to Snowbird. The trial court ruled that Shattuck-Owen's claims were barred by the Workers' Compensation Act and that even if they were not, they failed as a matter of law. The court determined that Shattuck-Owen could not prove a necessary element of her invasion of privacy claim. It also ruled that Roberts did not have authority to contract on behalf of Snowbird. The trial court did not rule on whether the conversation between Shattuck-Owen and Roberts contained sufficiently definite terms to constitute a contract. Shattuck-Owen appeals.

STANDARD OF REVIEW

T9 Summary judgment is warrant, ed when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R.Civ.P. 56(c). We review a grant of summary judgment for correctness, giving no deference to the trial court's legal determinations. See Gerbich v. Numed Inc., 1999 UT 37, ¶10, 977 P.2d 1205; Harline v. Barker, 912 P.2d 433, 438 (Utah 1996). In determining whether summary judgment is appropriate, "'we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party'" K & T, Inc. v. Koroulis, 888 P.2d 623, 624 (Utah 1994) (quoting Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993)).

ANALYSIS

110 As noted above, the trial court held that Shattuck-Owen could not prove a necessary element of her invasion of privacy claim and that Kerry Roberts did not have the authority to contract on behalf of Snowbird. The trial court also held that both claims were barred by the exclusive remedy provision of the Worker's Compensation Act. We first address the invasion of privacy claim, followed by the contract claim.

I. INVASION OF PRIVACY

T11 Shattuck-Owen alleges that Snowbird invaded her privacy by publicly disclosing embarrassing private facts. Specifically, she claims that Snowbird carelessly allowed numerous people to view the surveillance video of her sexual assault. This court has not previously addressed the standard to be applied to an invasion of privacy claim in this particular context. We adopt the standard set forth in Stien v. Marriott Ownership Resorts, Inc., 944 P.2d 374, 380 (Utah Ct.App.1997). Stien described four distinct variations of invasion of privacy claims. We are here concerned with a claim relating to public disclosure of embarrassing private facts. To prevail on this claim, Shattuck-Owen must establish the following elements:

(1) the disclosure of the private facts must be a public disclosure and not a private one;

(2) the facts disclosed to the public must be private facts, and not public ones;

(8) the matter made public must be one that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities.

Id. at 380 (quoting W. Page Keeton et al., Prosser and Keston on the Law of Torts § 117, at 856-57 (5th ed.1984) (footnote omitted)). 1 The trial court ruled as a matter of law that "Snowbird's actions in showing the videotape do not constitute a public disclosure." We affirm that ruling.

112 Public disclosure "means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Restatement (Second) of Torts § G52D emt. a (1977); see also Jones v. U.S. Child Support Recovery, 961 F.Supp. 1518, 1520 (D.Utah 1997). Thus, communicating a private fact "to a small group of persons," for *559 example, does not constitute public disclosure. Restatement (Second) of Torts § 652D emt. a. Nonetheless, the size of the audience that receives the communication, though an important consideration, is not dispositive of the issue. "Rather, the facts and cireum-stances of a particular case must be taken into consideration in determining whether the disclosure was sufficiently public so as to support a claim for invasion of privacy." Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 378 (Colo.1997); see, eg., Kinsey v. Macur, 107 Cal.App.3d 265, 165 Cal.Rptr. 608, 611-12 (1980) (finding public disclosure where defendant maliciously sent letters to a geographically, socially, and professionally diverse group of roughly twenty people); Restatement (Second) of Torts $ 652D emt. a (stating that publications in newspapers or magazines, even of small cireulation, qualify as public disclosure).

T13 In the instant case, the undisputed evidence shows that ten identified people, all legitimately involved with the investigation into the sexual assault, saw the video. Shat-tuck-Owen alleges two or three other, as yet unidentified, individuals also saw the vidéo playing in the security office the day of the assault. Even assuming that to be true, Snowbird's display of the video does not constitute public disclosure. Snowbird showed the video to a discrete number of persons for the legitimate purposes of a criminal investigation. That two or three other Snowbird employees may have seen the video does not necessarily render the disclosure "public." Indeed, Shattuck-Owen concedes that it was appropriate for a "few" members of Snowbird's management to watch the video, and she has offered no evidence specifically identifying anyone who saw the video who had no legitimate reason for viewing it. In short, she has wholly failed to proffer any pertinent facts as to why Snowbird's display of the video to only twelve to thirteen individuals should nevertheless be considered a public disclosure. Thus, the trial court correctly ruled that Shattuck-Owen's invasion of privacy claim fails as a matter of law. 2 Because we affirm the trial court on this ground, we do not address its holding that Shattuck-Owen's invasion of privacy claim was also barred by the exclusive remedy provision of the Workers' Compensation Act.

II. BREACH OF CONTRACT

A. Kerry Roberts's Authority to Contract on Snowbird's Behalf

114 Shattuck-Owen also claims that Roberts, Snowbird's Human Resources Director, contracted on behalf of Snowbird to pay the costs of her private therapy. In granting summary judgment on this claim, the trial court ruled as a matter of law that Kerry Roberts did not have the authority to contractually bind Snowbird. The trial court based its decision on a statement, signed by Shattuck-Owen, found in Snowbird's employee handbook. In pertinent part, the statement reads as follows:

I am aware that the policies, practices and procedures of Snowbird are not necessarily permanent and are subject to being modified, withdrawn or added to at any time. Although Snowbird hopes that relationships with team members will be long term and mutually rewarding, employment at Snowbird is "at will" which means that both the team member and Snowbird have *560 the right to terminate the employment relationship at any time and for any or no cause. Those rights cannot be waived or modified except in a signed, written contract between the team member and the CEO/Chairman who has the sole authority to enter into a written employment contract.

{15 We hold that the trial court erred in ruling that this statement precluded Roberts from contracting on Snowbird's behalf with Shattuck-Owen to pay her therapy bills. On its face, the statement simply provides that the CEO/Chairman is the only person who can modify the at-will employment status of the signee, and that the modification must be in writing. In the instant case, Shattuck-Owen's alleged contract does not deal with her at-will employment status. As such, the signed statement appears to have no application to the instant case, at least in light of the facts currently on the record.

(I 16 Moreover, the alleged facts, viewed in the light most favorable to Shattuck-Owen suggest Roberts possessed authority to contract for Snowbird. Foremost, Roberts was Snowbird's Human Resources Director-the person presumptively in charge of explaining and, when necessary, arranging for employee benefits. In addition, Snowbird management permitted Roberts to act as the company representative in attempting to address Shattuck-Owen's therapy needs. At the very least, these facts raise a genuine question as to Roberts's implied and/or apparent authority to act for Snowbird with respect to an employee benefits issue. See, eg., Zions First Nat'l Bank v. Clark Clinic Corp., 762 P.2d 1090, 1094-95 (Utah 1988) (discussing implied and apparent authority). Because issues of material fact remain regarding Roberts' authority to contract on Snowbird's behalf, the trial court erred in granting summary judgment on that ground. We therefore turn to the court's ruling that the Workers' Compensation Act's exclusive remedy provision bars any contractual obligation Snowbird allegedly undertook.

B. Exclusive Remedy Provision of the Workers' Compensation Act

{17 The Workers' Compensation Act (the Act) provides as follows:

The right to recover compensation pursuant to this chapter ... shall be the exelu-sive remedy against the employer ... and the liabilities of the employer imposed by this chapter shall be in place of any and all other civil liability whatsoever ... on account of any accident or injury or death, in any way contracted, sustained, aggravated, or incurred by the employee in the course of or because of or arising out of the employee's employment.

Utah Code Ann. § 34A-2-105(1) (1997). The trial court held that this provision bars Shat-tuck-Owen's breach of contract claim.

118 Snowbird argues on appeal that the trial court correctly barred Shattuck Owen's claim because the therapy costs she incurred, and for which she now seeks recovery, were necessitated by an on-the-job sexual assault that is compensable under the Act. Snowbird asserts that Shattuck-Owen is merely attempting to "plead around the workers' compensation exelusivity provision" by characterizing her claim as one for breach of contract. We hold that Snowbird's argument on this issue is unavailing because Snowbird failed to establish that the exclusive remedy provision necessarily precluded Shattueck-Owen's contract claim.

119 The workers' compensation system constitutes a quid pro quo between employers and employees. See Hunsaker v. State, 870 P.2d 893, 899 (Utah 1993). Under the Act's balancing of rights, "employees are able to recover for job-related injuries without showing fault ... and employers are protected from tort suits by employees," id., by virtue of the Act's exclusive remedy provision. Lest this careful balance of rights should tip too heavily in the employer's favor, the exclusive remedy provision must not be applied outside the coverage formula of the Act. It is well settled that the Act covers only mental and physical injuries sustained on the job. See Mounteer v. Utah Power & Light Co., 823 P.2d 1055, 1057 (Utah 1991); see also Retherford v. AT & T Communications, 844 P.2d 949, 965 (Utah 1992). Accordingly, we have held that the exclusive remedy provision bars common-law tort actions requir *561 ing proof of physical or mental injury. See Mounteer, 823 P.2d at 1056-58 (barring a claim for emotional distress while permitting a slander claim because slander does not require proof of mental or physical injury).

120 Furthermore, the exclusive remedy provision extends far enough to bar what are essentially tort claims masquerading as breach of contract claims. See 6 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 100.03[9], at 100-19 to 21 (2000) ("The all-inclusive character of the exclusiveness principle results in barring actions for covered injuries even though the plaintiff casts his or her action in the form of a breach of some kind of contract."); see also Hurd v. Monsanto Co., 908 F.Supp. 604, 611 (S.D.Ind.1995); Beauchamp v. Dow Chem. Co., 427 Mich. 1, 398 N.W.2d 882, 894 (1986), superseded in other respecis by statute as stated in Shipman v. Fontaine Truck Equip. Co., 184 Mich.App. 706, 459 N.W.2d 30, 34 (1990); Hornsby v. Southland Corp., 487 A.2d 1069, 1071-72 (R.I.1985). Under such circumstances, the Mounteer analysis cited above still applies to prevent employees from evading the recovery restrictions of the Act.

121 However, a claim for contractual relief seeking benefits in addition to the workers' compensation system is not barred by the exclusivity provision. Indeed, while the Act expressly prohibits contracts that would limit an employee's right to workers' compensation, see Utah Code Ann. § 34A-2-108 (1997), nothing prohibits an employer from agreeing to provide benefits in addition to those provided in the Act. See Fredericks v. Liberty Mut. Ins. Co., 255 Ill.App.3d 1029, 194 Ill.Dec. 445, 627 N.E.2d 782, 786 (1994); Decatur County v. Public Employment Relations Bd., 564 N.W.2d 394, 398 (Iowa 1997); Segura v. Molycorp, Inc., 97 N.M. 13, 636 P.2d 284, 287-89 (1981); Hornsby, 487 A.2d at 1072. Under the subsection entitled "Legal Status of Contractual Supplement to [Workers'] Compensation," Larson's workers' compensation treatise states as follows:

It is possible to imagine a number of troublesome legal questions that might emerge from the type of contract in which the employer agrees to pay, say, $250 a week benefits instead of the $200 specified by statute. One cardinal principle, however, should ordinarily settle most such questions. That principle is the simple proposition that the contractual excess is not workers' compensation. It performs the same functions, and is payable under the same general conditions, but legally it is nothing more than the fruit of a private agreement to pay a sum of money on specified conditions. The provisions of a compensation act may be incorporated into the agreement by reference, but the operative force and the ultimate legal character of the arrangement remain that of private contract.

9 Larson & Larson, supra, § 157.05(3], at 157-46.

122 In short, employment agreements expressly promising benefits in addition to those already mandated by the Act should be enforced according to normal contract law principles. See, eg., Stoecker v. Brush Wellman, Inc., 194 Ariz. 448, 984 P.2d 534, 538-39 (1999); Larke v. City of Fort Lauderdale, 568 So.2d 58, 59 (Fla.Dist.Ct.App.1990); Board of Educ. v. Chicago Teachers Union, 86 Ill.2d 469, 56 Ill.Dec. 653, 427 N.E.2d 1199, 1201 (1981). Thus, if Snowbird contracted to pay benefits in addition to those provided by the workers' compensation system, that contract potentially furnishes the basis for a legitimate claim.

11 28 This conclusion is supported by sound policy considerations. As already noted, workers' compensation is a quid pro quo, both granting and withdrawing specified employee and employer rights. See Hunsaker, 870 P.2d at 899. For its part of this bargain, an employer obtains valuable protection from tort suits. See id. The workers' compensation system, however, "was not designed or intended to free an employer from performing its contractual promises to provide specific benefits to its employees." Stoecker, 984 P.2d at 588. Extending the Act's coverage to that extent would undermine the balance of rights embodied in the Act. 3 We therefore *562 reverse the trial court's holding that the Workers' Compensation exclusive remedy provision necessarily bars Shattuck-Owen's contract claim and remand for application of the standard set forth in this opinion. 4

CONCLUSION

1 24 We affirm the trial court in part and reverse it in part. The trial court correctly ruled that Shattuck-Owen had not offered any facts demonstrating Snowbird publicly disclosed private facts sufficient to support a cause of action for invasion of privacy. The trial court erred, however, in ruling as a matter of law that Roberts lacked authority to contract on behalf of Snowbird and in ruling that Shattuck-Owen's breach of contract claim was necessarily barred by the exclusive remedy provision of the Workers' Compensation Act. We reverse the trial court's entry of summary judgment on that claim and remand the case for further proceedings consistent with this opinion.

Mr. Justice Stewart

delivered the opinion of the Court.

Margaret Cantrell and four of her minor children brought this diversity action in a Federal District Court for invasion of privacy against the Forest City Publishing Co., publisher of a Cleveland newspaper, the Plain Dealer, and against Joseph Eszterhas, a reporter formerly employed by the Plain Dealer, and Richard Conway, a Plain Dealer photographer. The Cantrells alleged that an article published in the Plain Dealer Sunday Magazine unreasonably placed their family in a false light before the public through its many inaccuracies and untruths. The District Judge struck the claims relating to punitive damages as to all the plaintiffs and dismissed the actions of three of the Cantrell children in their entirety, but allowed the case to go to the jury *247as to Mrs. Cantrell and her oldest son, William. The jury returned a verdict against all three of the respondents for compensatory money damages in favor of these two plaintiffs.

The Court of Appeals for the Sixth Circuit reversed, holding that, in the light of the First and Fourteenth Amendments, the District Judge should have granted the respondents’ motion for a directed verdict as to all the Cantrells’ claims. 484 F. 2d 150. We granted certiorari, 418 U. S. 909.

I

In December 1967, Margaret Cantrell’s husband Melvin was killed along with 43 other people when the Silver Bridge across the Ohio River at Point Pleasant, W. Va., collapsed. The respondent Eszterhas was assigned by the Plain Dealer to cover the story of the disaster. He wrote a “news feature” story focusing on the funeral of Melvin Cantrell and the impact of his death on the Cantrell family.

Five months later, after conferring with the Sunday Magazine editor of the Plain Dealer, Eszterhas and photographer Conway returned to the Point Pleasant area to write a follow-up feature. The two men went to the Cantrell residence, where Eszterhas talked with the children and Conway took 50 pictures. Mrs. Cantrell was not at home at any time during the 60 to 90 minutes that the men were at the Cantrell residence.

Eszterhas’ story appeared as the lead feature in the August 4, 1968, edition of the Plain Dealer Sunday Magazine. The article stressed the family’s abject poverty; the children’s old, ill-fitting clothes and the deteriorating condition of their home were detailed in both the text and accompanying photographs. As he had done in his original, prize-winning article on the Silver Bridge disaster, Eszterhas used the Cantrell family to *248illustrate the impact of thé bridge collapse on the lives of the people in the Point Pleasant area.

It is conceded that the story contained a number of inaccuracies and false statements. Most conspicuously, although Mrs. Cantrell was not present at any time during the reporter’s visit to her home, Eszterhas wrote, “Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that after it happened, the people in town offered to help them out with money and they refused to take it.”1 Other significant misrepresentations were contained in details of Eszterhas’ descriptions of the poverty in which the Cantrells were living and the dirty and dilapidated conditions of the Cantrell home.

The case went to the jury on a so-called “false light” theory of invasion of privacy. In essence, the theory of the case was that by publishing the false feature story about the Cantrells and thereby making them the objects of pity and ridicule, the respondents damaged Mrs. Cantrell and her son William by causing them to suffer outrage, mental distress, shame, and humiliation.2

*249II

In Time, Inc. v. Hill, 385 U. S. 374, the Court considered a similar false-light, invasion-of-privacy action. -The New York Court of Appeals had interpreted New York Civil Rights Law §§ 50-51 to give a “newsworthy person” a right of action when his or her name, picture or portrait was the subject of a “fictitious” report or article. Material and substantial falsification was the test for recovery. 385 U. S., at 384-386. Under this doctrine the New York courts awarded the plaintiff James Hill compensatory damages based on his complaint that Life Magazine had falsely reported that a new Broadway play portrayed the Hill family’s experience in being held hostage by three escaped convicts. This Court, guided by its decision in New York Times Co. v. Sullivan, 376 U. S. 254, which recognized constitutional limits on a State’s power to award damages for libel in actions brought by public officials, held that the constitutional protections for speech and press precluded the application of the New York statute to allow recovery for “false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.” 385 U. S., at 388. Although the jury could have reasonably concluded from the evidence in the Hill case that Life had engaged in knowing falsehood or had recklessly disregarded the truth in stating in the article that “the story re-enacted” the Hill family’s experience, the Court concluded that the trial judge’s instructions had not confined the jury to such a finding as a predicate for liability as required by the Constitution. Id., at 394.

The District Judge in the case before us, in contrast to the trial judge in Time, Inc. v. Hill, did instruct the jury that liability could be imposed only if it concluded that the false statements in the Sunday Magazine feature *250article on the Cantrells had been made with knowledge of their falsity or in reckless disregard of the truth.3 No objection was made by any of the parties to this knowing- or-reckless-falsehood instruction. Consequently, this case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard *251announced in Time, Inc. v. Hill applies to all false-light cases. Cf. Gertz v. Robert Welch, Inc., 418 U. S. 323. Rather, the sole question that we need decide is whether the Court of Appeals erred in setting aside the jury’s verdict.

Ill

At the close of the petitioners’ case-in-chief, the District Judge struck the demand for punitive damages. He found that Mrs. Cantrell had failed to present any evidence to support the charges that the invasion of privacy “was done maliciously within the legal definition of that term.” The Court of Appeals interpreted this finding to be a determination by the District Judge that there was no evidence of knowing falsity or reckless disregard of the truth introduced at the trial. Having made such a determination, the Court of Appeals held that the District Judge should have granted the motion for a directed verdict for respondents as to all the Cantrells’ claims. 484 F. 2d, at 155.

The Court of Appeals appears to have assumed that the District Judge’s finding of no malice “within the legal definition of that term” was a finding based on the definition of “actual malice” established by this Court in New York Times Co. v. Sullivan, 376 U. S., at 280: “with knowledge that [a defamatory statement] was false or with reckless disregard of whether it was false or not.” As so defined, of course, “actual malice” is a term of art, created to provide a convenient shorthand expression for the standard of liability that must be established before a State may constitutionally permit public officials to recover for libel in actions brought against publishers.4 As *252such, it is quite different from the common-law standard of “malice” generally required under state tort law to support an award of punitive damages. In a false-light case, common-law malice — frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff’s rights — would focus on the defendant’s attitude toward the plaintiff’s privacy, not toward the truth or falsity of the material published. See Time, Inc. v. Hill, 385 U. S., at 396 n. 12. See generally W. Prosser, Law of Torts 9-10 (4th ed.).

Although the verbal record of the District Court proceedings is not entirely unambiguous, the conclusion is inescapable that the District Judge was referring to the common-law standard of malice rather than to the New York Times “actual malice” standard when he dismissed the punitive damages claims. For at the same time that he dismissed the demands for punitive damages, the District Judge refused to grant the respondents’ motion for directed verdicts as to Mrs. Cantrell’s and William’s claims for compensatory damages. And, as his instructions to the jury made clear, the District Judge was fully aware that the Time, Inc. v. Hill meaning of the New York Times “actual malice” standard had to be satisfied for the Cantrells to recover actual damages. Thus, the only way to harmonize these two virtually simultaneous rulings by the District Judge is to conclude, contrary to the decision of the Court of Appeals, that in dismissing the punitive damages claims he was not determining that Mrs. Cantrell had failed to introduce any evidence of knowing falsity or reckless disregard of the truth. This conclusion is further fortified by the District Judge’s subsequent denial of the respondents’ motion for judgment n. o. v. and alternative motion for a new trial.

Moreover, the District Judge was clearly correct in believing that the evidence introduced at trial was sufficient *253to support a jury finding that the respondents Joseph Eszterhas and Forest City Publishing Co. had published knowing or reckless falsehoods about the Cantrells.5 There was no dispute during the trial that Eszterhas, who did not testify, must have known that a number of the statements in the feature story were untrue. In particular, his article plainly implied that Mrs. Cantrell had been present during his visit to her home and that Eszterhas had observed her “wear[ing] the same mask of non-expression she wore [at her husband’s] funeral.” These were “calculated falsehoods,” and the jury was plainly justified in finding that Eszterhas had portrayed the Can-trells in a false light through knowing or reckless untruth.

The Court of Appeals concluded that there was no evidence that Forest City Publishing Co. had knowledge of any of the inaccuracies contained in Esz-terhas’ article. However, there was sufficient evidence for the jury to find that Eszterhas’ writing of the feature was within the scope of his employment at the Plain Dealer and that Forest City Publishing Co. was therefore liable under traditional doctrines of respondeat superior,6 Although Eszterhas was not regu*254larly assigned by the Plain Dealer to write for the Sunday Magazine, the editor of the magazine testified that as a staff writer for the Plain Dealer Eszterhas frequently suggested stories he would like to write for the magazine. When Eszterhas suggested the follow-up article on the Silver Bridge disaster, the editor approved the idea and told Eszterhas the magazine would publish the feature if it was good. From this evidence, the jury could reasonably conclude that Forest City Publishing Co., publisher of the Plain Dealer, should be held vicariously liable for the damage caused by the knowing falsehoods contained in Eszterhas’ story.

For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case is remanded to that court with directions to enter a judgment affirming the judgment of the District Court as to the respondents Forest City Publishing Co. and Joseph Eszterhas.

It is so ordered.

Me. Justice Douglas,

dissenting.

I adhere to the views which I expressed in Time, Inc. v. Hill, 385 U. S. 374, 401-402 (1967), and to those of Mr. Justice Black in which I concurred, id., at 398-401. Freedom of the press is “abridged” in violation of the First *255and Fourteenth Amendments by what we do today. This line of cases, which of course includes New York Times Co. v. Sullivan, 376 U. S. 254 (1964), seems to me to place First Amendment rights of the press at a midway point similar to what our ill-fated Betts v. Brady, 316 U. S. 455 (1942), did to the right to counsel. The press will be “free” in the First Amendment sense when the judge-made qualifications of that freedom are withdrawn and the substance of the First Amendment restored to what I believe was the purpose of its enactment.

A bridge accident catapulted the Cantrells into the public eye and their disaster became newsworthy. To make the First Amendment freedom to report the news turn on subtle differences between common-law malice and actual malice is to stand the Amendment on its head. Those who write the current news seldom have the objective, dispassionate point of view — or the time — of scientific analysts. They deal in fast-moving events and the need for “spot” reporting. The jury under today’s formula sits as a censor with broad powers — not to impose a prior restraint, but to lay heavy damages on the press. The press is “free” only if the jury is sufficiently disenchanted with the Cantrells to let the press be free of this damages claim. That regime is thought by some to be a way of supervising the press which is better than not supervising it at all. But the installation of the Court’s regime would require a constitutional amendment. Whatever might be the ultimate reach of the doctrine Mr. Justice Black and I have embraced, it seems clear that in matters of public import such as the present news reporting, there must be freedom from damages lest the press be frightened into playing a more ignoble role than the Framers visualized.

I would affirm the judgment of the Court of Appeals.

OPINION

BLATZ, Chief Justice.

Elli Lake and Melissa Weber appeal from a dismissal of them complaint for failure to state a claim upon which relief may be granted. The district court and court of appeals held that Lake and Weber’s complaint alleging intrusion upon seclusion, appropriation, publication of private facts, and false light publicity could not proceed because Minnesota does not recognize a common law tort action for invasion of privacy. We reverse as to the claims of intrusion upon seclusion, appropriation, and publication of private facts, but affirm as to false light publicity.

Nineteen-year-old Elli Lake and 20-year-old Melissa Weber vacationed in Mexico in March 1995 with Weber’s sister. During the vacation, Weber’s sister took a photograph of Lake and Weber naked in the shower together. After their vacation, Lake and Weber *233brought five rolls of film to the Dilworth, Minnesota Wal-Mart store and photo lab. When they received their developed photographs along with the negatives, an enclosed written notice stated that one or more of the photographs had not been printed because of their “nature.”

In July 1995, an acquaintance of Lake and Weber alluded to the photograph and questioned their sexual orientation. Again, in December 1995, another friend told Lake and Weber that a Wal-Mart employee had shown her a copy of the photograph. By February 1996, Lake was informed that one or more copies of the photograph were circulating in the community.

Lake and Weber filed a complaint against Wal-Mart Stores, Inc. and one or more as-yet unidentified Wal-Mart employees on February 23, 1996, alleging the four traditional invasion of privacy torts — intrusion upon seclusion,-appropriation, publication of private facts, and false light publicity. Wal-Mart denied the allegations and made a motion to dismiss the complaint under Minn. R. Civ. P. 12.02, for failure to state a claim upon which relief may be granted. The district court granted Wal-Mart’s motion to dismiss, explaining that Minnesota has not recognized any of the four invasion of privacy torts. The court of appeals affirmed.

Whether Minnesota should recognize any or all of the invasion of privacy causes of action is a question of first impression in Minnesota.1 The Restatement (Second) of Torts outlines the four causes of action that comprise the tort generally referred to as invasion of privacy. Intrusion upon seclusion occurs when one “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns * * * if the intrusion would be highly offensive to a reasonable person.”2 Appropriation protects an individual’s identity and is committed when one “appropriates to his own use or benefit the name or likeness of another.”3 Publication of private facts is an invasion of privacy when one “gives publicity to a matter concerning the private life of another * * * if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” 4 False light publicity occurs when one “gives publicity to a matter concerning another that places the other before the public in a false light * *' * if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”5

I.

This court has the power to recognize and abolish common law doctrines.6 The common law is not composed of firmly fixed rules. Rather, as we have long recognized, the common law:

is the embodiment of broad and comprehensive unwritten principles, inspired by natural reason, an innate sense of justice, adopted by common consent for the regulation and government of the affairs of men. It is the growth of ages, and an examination of many of its principles, as enunciated and discussed in the books, discloses a constant improvement and development in keeping with advancing civilization and new conditions of society. Its guiding, star has always been the rule of right and wrong, and in this country its principles demonstrate that there is- in fact, as well as in theory, a remedy for all wrongs.7

*234As society changes over time, the common law must also evolve: .

It must be remembered that the common law is the result of growth, and that its development has been determined by the social needs of the community which it governs. It is the resultant of conflicting social forces, and those forces which are for the time dominant leave their impress upon the law. It is of judicial origin, and seeks to establish doctrines and rules for the determination, protection, and enforcement of legal rights. Manifestly it must change as society changes and new rights are recognized. To be an efficient instrument, and not a mere abstraction, it must gradually adapt itself to changed conditions.8

To determine the common law, we look to other states as well as to England.9

The tort of invasion of privacy is rooted in a common law right to privacy first described in an 1890 law review article by Samuel Warren and Louis Brandéis.10 The article posited1 that the common law has always protected an individual’s person and property, with the extent and nature of that protection changing over time. The fundamental right to privacy is both reflected in those protections and grows out of them:

Thus, in the very early times, the law gave a remedy only for physical interference with life and property, for trespass vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms; liberty meant freedom • from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of a man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, — the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession — intangible, as well as tangible.11

Although no English cases explicitly articulated a “right to privacy,” several cases decided under theories of property, contract, or breach of confidence also included invasion of privacy as a basis for protecting personal violations.12 .The article encouraged recognition of the common law right to privacy, as the strength of our legal system lies in its elasticity, adaptability, capacity for growth, and ability “to meet the wants of an ever changing society and to apply immediate relief for every recognized wrong.”13

The first jurisdiction to recognize the common law right to privacy was Georgia.14 In Pavesich v. New England Life Ins. Co., the Georgia Supreme Court determined that the “right of privacy has its foundation in the instincts of nature,” and is therefore an “immutable” and “absolute” right “derived from natural law.”15 The court emphasized that the right of privacy was not new to Georgia law, as it was encompassed by the well-established right to personal liberty.16

.Many other jurisdictions followed Georgia in recognizing the tort of invasion of privacy, citing Warren and Brandéis’ article and Pavesich. Today, the vast majority of jurisdictions now recognize some form -of the right to privacy. Only Minnesota, North Dakota, and Wyoming have not yet recognized any of the four privacy torts. Although New York and Nebraska courts have declined to recognize a common law basis for the right to privacy and instead provide statutory protec*235tion,17 we reject the proposition that only the legislature may establish new causes of action. The right to privacy is inherent in the English protections of individual property and contract rights and the “right to be let alone” is recognized as part of the common law across this country. Thus, it is within the province of the judiciary to establish privacy torts in this jurisdiction.

Today we join the majority of jurisdictions and recognize the tort of invasion of privacy. The right to privacy is an integral part of our humanity; one has a public persona, exposed and active, and a private persona, guarded and preserved. The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close.

Here Lake and Weber allege in their complaint that a photograph of their nude bodies has been publicized. One’s naked body is a very private part of one’s person and generally known to others only by choice. This is a type of privacy interest worthy of protection. Therefore, without consideration of the merits of Lake and Weber’s claims, we recognize the torts of intrusion upon seclusion, appropriation, and publication of private facts. Accordingly, we reverse the court of appeals and the district court and hold that Lake and Weber have stated a claim upon which relief may be granted and their lawsuit may proceed.

II.

We decline to recognize the tort of false light publicity at this time. We are concerned that claims under false light are similar to claims of defamation, and to the extent that false light is more expansive than defamation, tension between this tort and the First Amendment is increased.

False light is the most widely criticized of the four privacy torts and has been rejected by several jurisdictions.18 Most recently, the Texas Supreme Court refused to recognize the tort of false light invasion of privacy because defamation encompasses most false light claims and false light “lacks many of the procedural limitations that accompany actions for defamation, thus unacceptably increasing the tension that already exists between free speech constitutional guarantees and tort law.”19 Citing “numerous procedural and substantive hurdles” under Texas statutory and common law that limit defamation actions, such as privileges for public meetings, good faith, and important public interest and mitigation factors, the court concluded that these restrictions “serve to safeguard the freedom of speech.”20 Thus to allow recovery under false light invasion of privacy, without such safeguards, would “unacceptably derogate constitutional free speech.”21 The court rejected the solution of some jurisdictions — application of the defamation restrictions to false light — finding instead that any benefit to protecting nondefa-matory false speech was outweighed by the chilling effect on free speech.22

We agree with the reasoning of the Texas Supreme Court. Defamation requires a false statement communicated to a third party that tends to harm a plaintiffs reputation.23 False light requires publicity, to a large number of people, of a falsity that places the plaintiff in a light that a reasonable person would find highly offensive.24 The primary difference between defamation and false light is that defamation addresses harm to reputation in the external world, while false light protects harm to one’s inner self.25 Most *236false light claims are actionable as defamation claims; because of the overlap with defamation and the other privacy torts, a case has rarely succeeded squarely on a false light claim.26

Additionally, unlike the tort of defamation, which over the years has become subject to numerous restrictions to protect the interest in a free press and discourage trivial litigation,27 the tort of false light is not so restricted. Although many jurisdictions have imposed restrictions on false light actions identical to those for defamation, we are not persuaded that a new cause of action should be recognized if little additional protection is afforded plaintiffs.

We are also concerned that false light inhibits free speech guarantees provided by the First Amendment. As the Supreme Court remarked in New York Times Co. v. Sullivan: “Whatever is added to the field of libel is taken from the field of free debate.”28 Accordingly, we do not want to:

create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person’s name, picture or portrait, particularly as related to nondefama-tory matter.29

Although there may be some untrue and hurtful publicity that should be actionable under false light, the risk of chilling speech is too great to justify protection for this small category of false publication not protected under defamation.

Thus we recognize a right to privacy present in the common law of Minnesota, including causes of action in tort for intrusion upon seclusion, appropriation, and publication of private facts, but we decline to recognize the tort of false light publicity. This case is remanded to the district court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part.

TOMLJANOVICH, Justice

(dissenting).

I respectfully dissent. If the allegations against Wal-Mart are proven to be true, the conduct of the Wal-Mart employees is indeed offensive and reprehensible. As much as we deplore such conduct, not every contemptible act in our society is actionable.

I would not recognize a cause of action for intrusion upon seclusion, appropriation or publication of private facts. “Minnesota has never recognized, either by legislative or court action, a cause of action for invasion of privacy.” Hendry v. Conner, 303 Minn. 317, 319, 226 N.W.2d 921, 923 (1975). As recently as. 1996, we reiterated that position. See Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 28 (Minn.1996).

An action for an invasion of the right to privacy is not rooted in the Constitution. “[Tjhe Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ ” Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Those privacy rights that have their origin in the Constitution are much more fundamental rights of privacy — marriage and reproduction. See Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (penumbral rights of privacy and repose protect notions of privacy surrounding the marriage relationship and reproduction).

We have become a much more litigious society since 1975 when we acknowledged that we have never recognized a cause of action for invasion of privacy. We should be *237even more reluctant now to recognize a new tort.

In the absence of a constitutional basis, I would leave to the legislature the decision to create a new tort for invasion of privacy.

Sawyer, J.

"Truth is a torch that gleams through the fog without dispelling it.”

—Claude Helvetius, De l’Esprit.

In this heated dispute, the trial court granted summary disposition in favor of defendants on plaintiff’s claims of libel and invasion of privacy by false light. Plaintiff now appeals and we affirm.

Plaintiff alleges that she was libeled and cast in a false light by an article written by defendant Whitall which appeared in the Sunday supplement of the Detroit News on November 11, 1984. The article was entitled "Hot Locks: Let Shila burn you a new ’do.” The article was accompanied by two photographs, one depicting plaintiff performing her craft on a customer identified as "Barbara X” and the second showing Barbara X and her dog, identified as "Harry X,” following completion *787 of the hairdressing. Central to the article was the fact that plaintiff used a blowtorch in her hairdressing endeavors. According to the article, plaintiffs blowtorch technique was dubbed "Shi-lit” and was copyrighted. 1 The article also described two dogs, Harry and Snowball, the latter belonging to plaintiff, noting that the canines have had their respective coats colored at least in part. The article also indicated that the blowtorch technique had been applied to both dogs. Additionally, the article described plaintiffs somewhat unusual style of dress, including a silver holster for her blowtorch and a barrette in her hair fashioned out of a $100 bill. Much of the article devoted itself to plaintiffs comments concerning her hairdressing and the trend of what, at least in the past, had been deemed unusual in the area of hair styles.

Plaintiffs rather brief complaint alleges that the article, when read as a whole, is false, misleading and constitutes libel. More specifically, the complaint alleges that the article used the terms "blowtorch lady,” "blowtorch technique” and the statement that plaintiff "is dressed for blowtorch-ing duty in a slashed-to-there white jumpsuit” without any factual basis and as the result of defendants’ intentional conduct to distort and sensationalize the facts obtained in the interview. The complaint further alleges that the article falsely portrayed plaintiff as an animal hairdresser, again as part of a deliberate action by defendants to distort and sensationalize the facts. In her brief on appeal, plaintiff also takes exception to her being cast as an animal hairdresser and claims as inac *788 curate the portrayal in the article that she does "mutt Mohawks for dogs” and the reference to "two canines who have been blowtorched.”

Defendants brought their motion for summary disposition pursuant to both MCR 2.116(C)(8), failure to state a claim, and MCR 2.116(C)(10), no genuine issue of material fact. Unfortunately, the trial court’s ruling does not identify under which subrule summary disposition was granted. While the trial court’s failure to identify which subrule was relied upon complicates this appeal, our review of the case leads us to believe that the issue is more properly analyzed under subrule 10, no genuine issue of material fact. Accordingly, we will analyze the issue on that basis.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Stenke v Masland Development Co, Inc, 152 Mich App 562; 394 NW2d 418 (1986). In ruling on this motion, the trial court must consider not only the pleadings, but also depositions, affidavits, admissions and other documentary evidence, MCR 2.116(G)(5), and must give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Summary disposition is appropriate under this subrule only if the court is satisfied that it is impossible for the nonmoving party’s claim to be supported at trial because of a deficiency which cannot be overcome. Hetes v Schefman & Miller Law Office, 152 Mich App 117; 393 NW2d 577 (1986). We begin by noting that plaintiff failed to comply with MCR 2.116(G)(4), which requires that a party opposing a motion brought under subrule 10 not rest merely upon the allegations or denials of his pleadings, but come forward with evidence to establish the existence of a material factual *789 dispute. If the nonmoving party fails to establish that a material fact is at issue, the motion is properly granted. Stenke, supra. As noted by defendants and admitted by plaintiff at the motion hearing, plaintiff has failed to file any response to defendants’ motion and has come forward with no evidence to support a finding that a genuine issue of material fact exists.

The elements of defamation were stated by this Court in Sawabini v Desenberg, 143 Mich App 373, 379; 372 NW2d 559 (1985):

The elements of a cause of action for defamation are: "(a) a false and defamatory statement concerning plaintiff; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod)”. Postill v Booth Newspapers, Inc, 118 Mich App 608, 618; 315 MW2d 511 (1982), lv den 417 Mich 1050 (1983), citing Restatement Torts, 2d, § 558; Curtis v Evening News Association, 135 Mich App 101, 103; 352 NW2d 355 (1984); Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583; 349 NW2d 529 (1984).

See also Rouch v Enquirer & News of Battle Creek, 427 Mich 157, 173-174; 398 NW2d 245 (1986).

The Sawabini Court further commented on the appropriateness of dismissing a defamation claim by summary disposition:

The court may determine, as a matter of law, whether the words in question, alleged by plaintiff to be defamatory, are capable of defamatory meaning. See, e.g., Ledsinger v Burmeister, 114 Mich App 12, 21; 318 NW2d 558 (1982). Where the *790 words are, as a matter of law, not capable of carrying a defamatory meaning, summary judgment under GCR 1963, 117.2(1) is appropriate. See Lins v Evening News Association, 129 Mich App 419, 422; 342 NW2d 573 (1983).

"A communication is 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. Nuyen v Slater, 372 Mich 654, 662, fn; 127 NW2d 369 (1964); Ledsinger v Burmeister, 114 Mich App 12, 21; 318 NW2d 558 (1982).” Swenson-Davis v Martel, 135 Mich App 632, 635-636; 354 NWd 288 (1984), lv den 419 Mich 946 (1984). In assessing whether language is defamatory, the circumstances should be considered. Ledsinger v Burmeister, supra. [143 Mich App 379-380.]

In determining whether an article is libelous, it is necessary to read the article as a whole and fairly and reasonably construe it in determining whether a portion of the article is libelous in character. Sanders v Evening News Ass’n, 313 Mich 334, 340; 21 NW2d 152 (1946); Croton v Gillis, 104 Mich App 104, 108; 304 NW2d 820 (1981).

Reading the article as a whole, we believe that it is substantially true; therefore plaintiffs complaint lacks an essential element of her defamation claim, namely falsity. In looking at plaintiff’s specific allegations of falsity, for the most part we find no falsehood. Considering as a group the various references to plaintiff’s using a "blowtorch” in hairstyling, we note that The Random House College Dictionary, Revised Edition (1984), defines "blowtorch” as follows:

[A] small portable apparatus that gives an extremely hot gasoline flame intensified by air under pressure, used esp. in metalworking.

*791 In looking at the photographic exhibits filed by defendants, we believe that the instrument used by plaintiff in her profession can accurately be described as a blowtorch. 2 Accordingly, while the use of the term "blowtorch” as an adjective in connection with references to plaintiff or her hairdressing technique may have been colorful, it was not necessarily inaccurate and certainly not libelous. As for the reference that plaintiff was "dressed for blowtorching duty in a slashed-to-there white jumpsuit,” we have examined the photographic exhibits submitted by defendant at the motion hearing and we conclude that reasonable minds could not differ in reaching the conclusion that plaintiff did, in fact, wear a jumpsuit "slashed-to-there.”

Finally, while having disposed of the allegedly libelous claims contained in the complaint, we briefly turn to the additional allegations of false statement listed in plaintiff’s brief on appeal. In her brief, plaintiff claims that defendants inaccurately described her as being a hairdresser for dogs, giving dogs a Mohawk cut, and using a blowtorch on the dogs. While it appears that plaintiff did do hairdressing on dogs, it is not necessarily certain at this point that she did, in fact, use the blowtorch on the dogs. However, as noted above, plaintiff filed no response to the motion for summary disposition in the trial court and, thus, presented no affidavits or other evidentiary showings that the statements in the article were false. Thus, there has been no showing by plaintiff that the statements relating to the dogs were false.

Moreover, inasmuch as it appears undisputed *792 that plaintiff at least dyed the fur of the dogs, which would constitute hairdressing of dogs, we are not persuaded that the article, when read as a whole, becomes libelous because of an inaccurate reference to using the blowtorch on the dogs. This is particularly true since, by plaintiff’s conduct, she asserts that blowtorching is a safe practice when performed on humans. Therefore, it would appear that, from plaintiff’s perspective, blow-torching would also be safe on dogs, even if she did not engage in such a practice. Furthermore, her claim that she was libeled by labelling her as both a dog hairdresser and a human hairdresser is unsupported in light of the tinting of the dogs’ hair. Since the undisputed factual showing indicates that plaintiff did blowtorch her human clientele and style her pooch’s fur, we will not split hairs at this point to conclude that the statement that she used her blowtorch on dogs, even if inaccurate, is libelous.

For the above-stated reasons, we conclude that, when reviewing the article and accompanying photographs as a whole, the article was not libelous.

On appeal, plaintiff also argues that the article invaded her privacy by casting her in a false light. The Sawabini Court, supra at 380-382, discussed the tort of placing a person in false light:

False light invasion of privacy is described in Ledl v Quik Pik Stores, supra, as:

" '[pjublicity which places plaintiff in a false light in the public eye’. Beaumont v Brown, 401 Mich 80, 95, fn 10; 257 NW2d 522 (1977). In discussing what was necessary to state a cause of action for invasion of privacy, this Court stated in Beed v Pontin [sic], 15 Mich App 423, 426; 166 NW2d 629 (1968):

" 'When there has been no misappropriated use of, or physical intrusion into, the private life, *793 employment, property, name, likeness, or other personal place or interest, so that the privacy action is premised solely upon a disclosure of secret or confidential matter or upon being put publicly in a "false light”, then if (without deciding) mere words of mouth can never be actionable (except by a slander action) the oral communication must be broadcast to the public in general or publicized to a large number of people.’ ” 133 Mich App 591-592.

See Restatement Torts, 2d, § 652 E, comment a. Furthermore, comment b to § 652 E, p 395, explains that:

"The interest protected by this section is the interest of the individual in not being made to appear before the public in an objectionable false light or false position, or in other words, otherwise than as he is. In many cases to which the rule stated here applies, the publicity given to the plaintiff is defamatory, so that he would have an action for libel or slander .... In such a case the action for invasion of privacy will afford an alternative or additional remedy, and the plaintiff can proceed upon either theory, or both, although he can have but one recovery for a single instance of publicity.

"It is not, however, necessary to the action for invasion of privacy that the plaintiff be defamed. It is enough that he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position. When this is the case and the matter attributed to the plaintiff is not defamatory, the rule here stated affords a different remedy, not available in an action for defamation.”

As indicated in the above discussion under the theory of defamation, with the exception of certain references to hairdressing dogs, none of the conduct attributed to plaintiff in the article was false. *794 Therefore, it could not place plaintiff in a false light. With reference to the assertions concerning her hairdressing of dogs, we do not believe that a rational trier of fact could conclude that, even if inaccurate, those references are unreasonable or put plaintiff in a position of receiving highly objectionable publicity. The article did not indicate that plaintiff harmed, injured or inflicted pain upon the dogs. Rather, at most, the article inaccurately stated that plaintiff used techniques on the dogs, such as blowtorching, which she also used on humans. While the article may have overstated the techniques that she uses on dogs, inasmuch as she advocates those techniques for use on humans, we cannot conclude that plaintiff would believe it highly objectionable that those techniques also be performed on dogs. Similarly, she cannot have been placed in false light as being both the hairdresser of dogs and humans inasmuch as the tinting of the canines’ fur would constitute hairdressing. Thus, it would not be placing plaintiff in a false light to indicate that she served both dog and man. Accordingly, we believe that summary disposition was also properly granted on the false light claim.

In summary, although the manner in which the present article was written may have singed plaintiff’s desire for obtaining favorable coverage of her unique hairdressing methods, we cannot subscribe to the view that it was libelous. We believe that the trial court aptly summarized this case when it stated that "this Court is of the Opinion that the Plaintiff sought publicity and got it.” Indeed, it would appear that the root of plaintiff’s dissatisfaction with defendants’ article is that the publicity plaintiff received was not exactly the publicity she had in mind. While the publicity may have been *795 inflammatory from plaintiffs vantage point, we do not believe it was libelous. At most, defendants treated the article more lightheartedly than plaintiff either anticipated or hoped. While this may give plaintiff cause to cancel her subscription to the Detroit News, it does not give her cause to complain in court.

Affirmed. Costs to defendants.