11th Circuit wrestled with rights of press, publicity

Wednesday, July 1, 2009

A federal appeals court recently found that Hustler Magazine could be sued for publishing 20-year-old nude photos of Nancy Benoit, the former model and professional wrestler who was killed by her husband in June 2007.

The First Amendment Center Online, being a respectable Web site devoted to scholarly analysis of First Amendment issues, will not supplement this discussion of the case with links to sites that have published the photos. Nor, despite the traffic it might attract by doing so, will it post those photos itself.

Ironically, however, it could without any significant fear of liability.

At issue in Toffoloni v. LFP Publishing Group was Hustler’s claim that it could publish the photos because Nancy Benoit’s murder — at the hands of her husband, wrestler Chris Benoit — rendered them newsworthy. A unanimous three-judge panel 11th U.S. Circuit Court of Appeals rejected that claim, but a different conclusion seemingly would result if, say, Nancy Benoit’s family challenged First Amendment Center Online’s right to post the same photos.

In Toffoloni, after all, the 11th Circuit panel based its ruling in large part on its conclusion that the photos “were not incident to a newsworthy article,” but rather that the brief story Hustler ran with the pictures “was incident to the photographs.” Whatever else the 11th Circuit or any other court might say about the commentary you are reading, it presumably would have to conclude that this analysis of an important appeals court ruling is newsworthy and that the photos are incident to it.

Therefore, if the editors of this site determined that posting the photos would assist readers in understanding and assessing the court’s opinion, it seems highly unlikely that a court would hold that the photos lacked news value.

The ease with which the un-newsworthy becomes newsworthy is just one problem with the body of law tackled by the court in Toffoloni. Several others are apparent in the case, which required the court to balance First Amendment press freedom against a right of publicity that paradoxically is rooted in a right to privacy.

The Benoit tragedy is well-known. In June 2007, Chris Benoit strangled his wife and smothered his 7-year-old son before hanging himself. Nancy had been involved in professional wrestling since 1984, when, as a model, she was featured on the cover of a wrestling magazine. Shortly thereafter, she joined the entourage of wrestler Kevin Sullivan, taking the name “Fallen Angel.” She soon married Sullivan and, during the next 13 years, played several prominent roles in several wrestling leagues, including the character “Woman” and the manager of many male wrestlers. She divorced Sullivan in 1997 and married Benoit in 2000.

In 1987, Nancy posed nude for photographer Mark Samansky. In the lawsuit against Hustler (in which Samansky also is a defendant), her family claimed that immediately after the shoot, Nancy asked Samansky to destroy the photos and video he had made. According to the lawsuit, Nancy Benoit believed Samansky had complied with her request.

Samansky, however, did not destroy the video. From the video, he extracted nude and partially nude stills of Benoit, which he later sold to Hustler.

Hustler published the photos in its March 2008 issue. The cover advertised “WRESTLER CHRIS BENOIT’S MURDERED WIFE NUDE.” The spread, entitled “NANCY BENOIT Au Naturel: The long-lost images of wrestler Chris Benoit’s doomed wife,” included ten photos from the video and a short article about Benoit’s murder, the nude photo shoot and Benoit’s modeling aspirations.

Benoit’s family sued, seeking an injunction and damages for violation of Nancy Benoit’s right of publicity. Hustler moved to dismiss the case, arguing the photos were newsworthy illustrations of its article. A federal district court in Georgia agreed and dismissed the action.

On appeal, the 11th Circuit reversed and reinstated the suit. While the court did not rule that Hustler must pay the family damages or that the magazine was without other defenses, it rejected Hustler’s primary defense — that the photos were newsworthy. In doing so, the court encountered at least three pitfalls in the laws of privacy.

First, the case highlights a logical inconsistency in privacy law. In most jurisdictions, courts recognize four types of invasions of privacy — disclosing private facts, outrageously or illegally gathering facts, portraying someone in a false light and violating one’s right of publicity.

Unlike cases involving the disclosure of private facts or over-aggressive news gathering, a right of publicity suit does not involve privacy at all; rather, it involves the right of a person to limit the ability of others to profit from his or her likeness. In many ways, right of publicity cases are like copyright actions and most often are brought by celebrities seeking to prevent sellers from using their names and pictures on merchandise or in advertising.

In Benoit’s case, whether her family has a right of publicity in the photos depends on whether Benoit owned the photos or contractually assigned the right to use them to Samansky. The court, however, never addressed this question, seemingly content at this stage in the case to assume Benoit’s request to destroy the materials terminated any right Samansky had in them. Whether that assumption is correct will depend on the evidence developed as the case proceeds in the district court.

Further, the 11th Circuit assumed Benoit’s posed nudity was a matter “not open to public observation” and thus protected by a right of publicity. While that assumption likely is true in many cases, several photos of a barely dressed Benoit were taken during her days in wrestling and are widely available. In cases like this, when the line between public and private is as thin as many of Benoit’s bikini straps, assuming that nudity is private can unfairly favor the right of publicity.

Second, the newsworthiness defense once again proved to be a poor fit in right-of-publicity cases. The defense originated in right to privacy cases, where it allows a news organization to publish private facts if they are newsworthy. In right of publicity cases, however, the issue is not whether a fact is private but whether a person has an economic interest in controlling it. Because that interest often has less to do with the fact’s private nature than with its exclusivity or timing, an inquiry into newsworthiness frequently seems misdirected.

In Benoit’s case, for example, the 11th Circuit held that the “fact of Benoit’s nudity is not in and of itself newsworthy.” “Indeed,” the court said, “people are nude every day, and the news media does not typically find the occurrence worth reporting.”

That a person of some renown has posed nude, however, typically is worth reporting. It is beyond question that if new, posed, nude photos of Farrah Fawcett or Michael Jackson surfaced, most media entities would consider them newsworthy and many would publish them. Posed nude photos of Michelle Obama would create an unprecedented media frenzy and likely bring down the Internet. That Nancy Benoit is less famous only makes her photos less newsworthy; it does not render them without news value.

Third, the case illustrates the illogic that purports to support damage awards in right of publicity actions. After concluding that the photos of Benoit had no news value — and, indeed, no legitimate purpose — the 11th Circuit noted that, if Benoit’s family prevails, it is entitled to recover the “value of the use of the appropriated publicity.” Thus, in right of publicity cases, published information apparently can have economic value without having news value. How the trial court resolves that issue in Toffoloni is just one reason to follow the case closely.

It’s easy, of course, to understand why the 11th Circuit wanted to prevent Hustler from exploiting the Benoit tragedy. What’s harder to understand — though no fault of the 11th Circuit — is how to fairly balance the freedom of the press with an individual’s right of publicity. As Toffoloni makes clear, the current law leaves much to be desired, primarily because the out-of-place newsworthiness test is an imperfect fulcrum.