Hustler Spread of Murder Victim: Arguably Tasteless, but Certainly First Amendment Protected

In June 2007, professional wrestling promotrix, Nancy Benoit and her son, Daniel, were the victims of a double murder-suicide committed by her husband, WWE wrestler, Chris Benoit.

Approximately 20 years earlier, Ms. Benoit (then Nancy Daus) posed nude for photographer Mark Samansky. Benoit/Daus allegedly had a change of heart and requested that the materials be destroyed. Nevertheless, Samansky kept the video and made stills from it.

After Benoit's murder, Hustler Magazine obtained copies of Samansky's photographs and stills with the intention of publishing them in the March 2008 edition of Hustler Magazine. Benoit's mother, as administrator of her estate, retained counsel who sent a demand to Hustler claiming that the publication of the materials would violate Benoit's copyright and publicity rights.  Hustler's attorney, Paul Cambria, responded in this letter that copyright law did not apply, and that Hustler had a First Amendment right to publish the photos:

[W]e are not dealing with a commercial exploitation of Ms. Benoit's image for monetary gain, but as a part of a legitimate news story.

The Plaintiff then filed suit in Fayette County, Georgia, and Hustler removed the case to the United States District Court for the Northern District of Georgia and filed a motion to dismiss under Rule 12(b)(6). (Brief in Support, Brief in Opposition, Reply Brief).

In granting the motion the court wrote:

Georgia recognizes a right of publicity to protect against "the appropriation of another's name and likeness . . . without consent and for the financial gain of the appropriator ... whether the person whose name and likeness is used is a private citizen, entertainer, or ... a public figure who is not a public official." Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., 250 Ga. 135, 143 (1982). The right of publicity grew out of a long-standing recognition of the right to privacy - "the Georgia Supreme Court became the first such court to recognize the right of privacy in Pavesich v. New England Life Ins. Co., 122 Ga. 190 (1905)." Martin Luther King, Jr., Center, at 138. An important limitation to the right of publicity is that it does not extend where the use is "authorized as an exercise of freedom of the press." Id. (Slip Op. at 4)
The court concluded that there was "no dispute that Ms. Benoit's death was a 'legitimate matter of public interest and concern.'" (Slip Op. at 5) Accordingly, the publication of the nude photos was not for "mere commercial benefit" despite the fact that Hustler is anything but a non-profit enterprise. Relying upon Waters v. Fleetwood, 212 Ga. 161 (1956), the court noted that photographs that have a legitimately newsworthy purpose are immunized against right of publicity claims -- even if the photographs are sold as reprints, separately from the news publication at a later date. (Slip Op. at 6)
Were it otherwise, no newspaper might identify any person or any incident of his life without accounting to him for violation of his 'right to publicity'." Martin Luther King, Jr., Center, 250 Ga. at 151-52 (Weltner, J. concurring). The freedom of press exception to the right of publicity generally, combined with the Waters court's specific view of what is in the legitimate public interest, precludes a cause of action for violation of publicity rights in this case. (Slip Op. at 6-7)
This decision is legally notable for two reasons. The first is that since the Georgia Supreme Court was an early adopter of the right of publicity in Pavesich v. New England Life Ins. Co., 122 Ga. 190 (1905), it has a well-developed jurisprudence on this state-specific tort. Accordingly, while Georgia is not exactly a hotbed of entertainment law issues, I consider Georgia decisions to be highly persuasive when researching the right of publicity.

More importantly, it is always heartwarming to see a judge exercise such clear judicial restraint and ethics. Unfortunately, many members of the judiciary have decided that playing their part in the "culture wars" is more important than discharging their duty to be a fair and impartial guardian of the Constitution. Judge Thrash can not be accused of such partisanship. His opinion ends with the legal equivalent of "and they lived happily ever after":

The fact that the Court personally views publication of the photographs to be offensive and distasteful is not determinative. (Slip Op. at 7)

Once again, love him or hate him, Larry Flynt stands up for basic First Amendment rights and prevails.

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