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Case 15-2

Must read attached case and follow case analysis format 

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Case 15-2 Penthouse International v. Barnes

United States Court of Appeals 792 F.2d 943 (9th Cir. 1986)

Priscilla Barnes was a hostess at a club in Hollywood, California, when she was approached by a freelance photographer (Dunas) who sold nude photographs to Penthouse magazine. Dunas was an independent contractor. He asked Barnes to pose nude. She agreed but did not want her actual name used. Dunas agreed to her terms, and Barnes signed a “Release, Authorization and Agreement Form” that gave Penthouse the right to “republish photographic pictures or portraits.” Dunas added the term AKA (also known as) on the contract to indicate that the photographs would not be published under her actual name, but under a pseudonym. Penthouse did so in 1976.

Later, Barnes became a well-known television broadcaster for a station in Los Angeles. When Penthouse informed her in 1983 that it wished to republish her nude photograph, she threatened to sue, claiming that Dunas had implied agency to write the term AKA and that Penthouse was thus bound by his actions and representations. Penthouse requested a declaratory judgment from the federal district court allowing it to republish a nude photo of the defendant. The district court found for Barnes and issued an injunction against Penthouse. Penthouse appealed.

Judge Boochever

Under California law, questions regarding the existence of agency are questions of fact that we review for clear error. California Civil Code Section 2316 defines actual authority as “such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.” At issue is whether Dunas contracted to act on behalf of Penthouse.

Penthouse instructed photographers “to get a signed model release and not to alter the release in any way, without our permission.” However, Penthouse carried Dunas’s name on its masthead, gave him blank Penthouse contracts, may have given him business cards, and had him present contracts to models. Thus, although the record conflicts as to whether Dunas was an actual agent of Penthouse, on review, we cannot find that the district court clearly erred in finding Dunas to be a Penthouse agent.

Having found that the district court did not err in characterizing Dunas as an agent, we next turn to whether Dunas was acting within the scope of his authority by modifying the contract. Barnes does not contend nor is there evidence that Dunas possessed express actual authority to modify the contract. Dunas, however, had implied actual authority. Implied actual authority requires that (1) Dunas believe that he was authorized to modify the contract based on Penthouse conduct known to him or (2) such a belief was reasonable.

Circumstantial evidence exists that Dunas placed “AKA” on other contracts with no objection from Penthouse. In June 1974, a year and a half before Barnes posed, contracts prepared by Dunas had “AKA” on them. Further, Penthouse internal memoranda reflect an understanding among Penthouse employees that “AKA” added to a contract meant that Penthouse was to associate a fictitious name with a woman’s photograph. The evidence thus indicates that Dunas reasonably believed that he was authorized to add “AKA” and modify the contract to require that only a fictitious name be used.

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 Penthouse International v. Barnes, United States Court of Appeals 792 F.2d 943 (9th Cir. 1986).

Affirmed in favor of Defendant, Barnes.

Critical Thinking About The Law

One of the primary purposes of a judge’s opinion is to explain the court’s reasoning in a particular case. A judge’s opinion is not arbitrary, in the sense that a judge must give due consideration to relevant facts and rules of law for any legal issue. From a judge’s opinion, we are, therefore, able to know not only a judge’s conclusion but also the reason the judge ruled for one party over another. These opinions provide the court’s rationale in a particular case, which may later be used as precedent for subsequent cases that contain similar fact patterns. In Case 15-2, the judge provided several reasons to support the conclusion. The next two questions relate to the judge’s reasoning in Case 15-2.

1. What reasons did the judge provide for ruling in favor of the defendant?

Clue: To ensure that you have found a reason, ask yourself whether what you have listed answers this question: “Why did the court rule for the defendant?”

2. What aspects of the court’s reasoning were particularly strong or weak? (Remember that just because reasons are given does not mean that these reasons are necessarily strong.)

Clue: Reverse the roles in this case and assume that you are the plaintiff’s lawyer. With which parts of the judge’s opinion would you still disagree based on the court’s reasoning? Would there be parts of the judge’s reasoning with which, even though you were the opposing party, you would agree?

Case Analysis Format

Read and understand the case or question assigned. Show your Analysis and Reasoning and make it clear you understand the material. Be sure to incorporate the concepts of the chapter we are studying to show your reasoning. Dedicate at least one heading to each following outline topic:

Parties [Identify the plaintiff and the defendant]

Facts [Summarize only those facts critical to the outcome of the case]

Procedure [Who brought the appeal? What was the outcome in the lower court(s)?]

Issue [Note the central question or questions on which the case turns]

Explain the applicable law(s). Use the textbook here. The law should come from the same chapter as the case. Be sure to use citations from the textbook including page numbers.

Holding [How did the court resolve the issue(s)? Who won?]

Reasoning [Explain the logic that supported the court’s decision]

Do significant research outside of the book and demonstrate that you have in an obvious way. This refers to research beyond the legal research. This involves something about the parties or other interesting related area. Show something you have discovered about the case, parties or other important element from your own research. Be sure this is obvious and adds value beyond the legal reasoning of the case.

1. Dedicate 1 heading to each of the case question(s) immediately following the case, if there are any. Be sure to restate and fully answer the questions

2. Quality in terms of substance, form, grammar and context. Be entertaining! Use excellent visual material

3. Wrap up with a Conclusion. This should summarize the key aspects of the decision and your recommendations on the court’s ruling.

4. Include citations and a reference page with your sources. Use APA style citations and references

5. Submit your assignment