There are many libels which do not affect the reputation of the victim's character, if by "character" is meant those moral qualities which the word ordinarily includes. Thus, it is a libel to say that a man is insane or is too educated to earn his living; or is desperately poor or that his near relatives have committed a crime if that creates doubt as to his character.
Burton had posed for pictures but had not seen them before they were published in an advertisement. An optical illusion in one of the photographs, coupled with the written legend, created a rather ribald impression. Burton brought a suit charging libel against defendant Crowell Publishing Company, but the district court dismissed the suit on the pleadings. Burton appealed.
Did the district court err in dismissing the libel case against Crowell Publishing Company?
The court held that the plaintiff's consent to the use of the photographs for which he posed as an advertisement was not a consent to the use of the offending photograph because he had no reason to anticipate the picture would be distorted. The court concluded that the picture created a caricature which subjected plaintiff to much "ridicule" and "contempt." The court held that because the pictures and the legends were calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable; the fact that it did not assume to state a fact or an opinion about plaintiff was irrelevant. The case was remanded for trial.