(dissenting):
I respectfully dissent.
My review of the entire record convinces me, beyond doubt, that the jury legally and reasonably could find the railroad liable for the commercial expropriation of Mrs. Gilham’s likeness in connection with the 1970 publication of her portrait in Fate magazine. Consequently, I firmly believe that the jury’s verdict, and the judgment entered thereon’, should stand.
The letter of June 29, 1960, from the railroad’s assistant advertising manager to a representative of Fate magazine quite obviously granted the magazine’s publishers a license to reproduce the railroad’s copyrighted portraits of Mrs. Gil-ham. From the evidence the jury very reasonably, in my opinion, concluded that, without the license, the magazine would not have printed the portraits.
Further,, the jury could reasonably have found that when the railroad’s advertising manager sent the portraits and the license to the magazine, he acted with knowledge, and, perhaps, even with the deliberate intent, that the magazine would publish thousands of copies of the portraits and distribute them widely. I think that it would have been quite proper for the jury to have concluded from the whole evidence that the actions of the railroad’s employee were taken as a part of an overall compaign by the railroad to associate the Indian woman’s portrait in the public mind with the Great Northern Railway and therefore to promote the railroad’s business image through widespread distribution of the portrait. Unlike the majority, I see no real distinction between the railroad’s use of Mrs. Gilham’s portrait on menus, playing cards, and calendars and its giving a license for publication of the portrait in a magazine, with a credit line to Great Northern Railway.1 My view as to the relevance of the magazine portraits fits well within the scope of Mrs. Gilham’s pleadings below. In the first sentence of her complaint, she charged that “[t]he defendant has, for a number of years, continuously and still is, using the portrait made of the plaintiff . for purposes of increasing the defendant’s trade, commerce and financial gain.” 2
I would affirm.
ORDER
The Petition for Rehearing is denied.
Judge Ely would grant the Petition.
*665The court does not consider the suggestion for en banc rehearing because of the appellee’s failure, in making such suggestion, to comply with this court’s Rule 12.
On Petition for Rehearing
. The majority directs in its footnote 3 that, on remand, the district judge must specifically find that the credit line to Great Northern constituted advertising under Montana law before he admits into evidence the advertising manager’s letter. I think that that finding is implicit in the district judge’s decision in the original trial to admit the letter and the copy of Fate magazine. In any event, I believe that the district judge in making his decision, on remand, may properly look not only to the credit line but also to the full text of the advertising manager’s letter and to the railroad’s overall purpose for purchasing the copyright to the portrait, as well as the logical inferences that might reasonably be drawn therefrom.
. The fact situation presented to the jury in this case was not wholly new to Montana law. In Bennett v. Gusdorf, 101 Mont. 39, 53 P.2d 91 (1935), the Montana Supreme Court invoked a theory of quasi-contract to impose liability on a photographer who, having taken the plaintiff’s photograph, furnished the photo to a third party who displayed the photo in business establishments in connection with a promotional scheme from which the photographer and others were to benefit. The case apparently was argued to the Montana Supreme Court on an invasion of privacy theory; however, the court reserved the question whether Montana law recognized a “right to privacy,” a question the Montana court has since answered in the affirmative. Welsh v. Roehm, 125 Mont. 517, 241 P.2d 816, sub nom. Welsh v. Pritchard, 125 Mont. 517, 241 P.2d 816 (1952).