Publisher's Use of Murder Victim’s Nude Photos Violated Right of Publicity

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

In a Georgia common law right of publicity suit, the publisher of Hustler Magazine was liable for the unauthorized publication of nude photographs of murdered professional wrestler Nancy Benoit, and Benoit's estate could seek to recover punitive damages, the federal district court in Atlanta has ruled.

The appropriation of another’s name and likeness without consent and for the financial gain of the appropriator is a tort in Georgia. LFP Publishing Group did not dispute that it appropriated Ms. Benoit’s name and likeness without her consent.

Financial Gain

Contrary to LFP's contention, the photographs were published for financial gain, the court held. Hustler is sold for the images it contains, the court said. The cover of the March 2008 magazine read, “Wrestler Chris Benoit’s Murdered Wife Nude.” No reasonable juror could conclude that LFP did not publish the photographs and the article for financial gain, the court determined.

Damages

The estate produced sufficient evidence of damages as measured by the value of the use of the appropriated publicity. The evidence showed that LFP made significant profits off the March 2008 issue, the court found. Yet LFP did not pay the estate anything for the photographs.

Newsworthiness Exception

The Eleventh Circuit had already held inapplicable the newsworthiness exception to the right of publicity (Toffoloni v. LFP Publishing Group, LLC, CCH Advertising Law Guide ¶63,480). Contrary to LFP's contention, there was no reason to revisit this ruling, according to the court.

Punitive Damages

In Georgia, punitive damages may be awarded in tort cases where there is clear and convincing evidence that a defendant’s actions showed “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” LFP argued that it acted innocently because it believed that the photographs were subject to the newsworthiness exception. However, what LFP believed at the time of publication was a question for the jury, the court concluded.

The November 23 opinion in Toffoloni v. LFP Publishing Group, LLC will be reported in CCH Advertising Law Guide.