Friday, July 31, 2009

Nude Photos Not Newsworthy, Held Within Right of Publicity

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

A magazine’s unauthorized publication of 20-year-old nude photographs of a recently-murdered woman, accompanied by a brief biography, did not qualify for the newsworthiness exception to the right of publicity under Georgia law, the U.S. Court of Appeals in Atlanta has ruled.

“Newsworthiness” Exception

A publisher may be precluded by the right of publicity from publishing one’s image for purely financial gain, as in an advertisement, but when the publication is newsworthy, the right of publicity gives way to the freedom of the press, the court observed.

The biographical piece fell within the newsworthiness exception to the right of publicity. However, the brief biography could not render the nude photographs newsworthy because the publication of the biography was merely incidental to the publication of the photographs, according to the court.

The photographs were in no conceivable way related to the “incident of public concern”—the victim’s death, the court found. The publisher could not make public images that the victim did not wish made public simply because she once wished to be a model and was later murdered.

Postmortem Rights

The magazine publisher could be held liable to the victim’s estate for publishing the images without compensating the estate, the court said. The Georgia Supreme Court had stated that a person who avoids exploitation during life is entitled to have his or her image protected against exploitation after death just as much, if not more, than a person who exploited the image during life.

The murder victim’s mother, as administrator of the estate, was entitled to control when and whether images of her daughter are made public in order to maximize the economic benefit to be derived from her daughter’s posthumous fame, the court concluded.

The decision is Toffoloni v. LFP Publishing Group, LLC, CCH Advertising Law Guide ¶63,480.

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