LFP PUBLISHING GROUP, LLC, d/b/a Hustler ... - SCOTUSblog

More documents

Recommendations

Info

22 themselves without a corresponding article, that publication would unquestionably not qualify for the newsworthiness exception. 572 F.3d at 1209. However, that is just not the case herein - the photographs were part of a full two-page article on Benoit’s life and death. Thus, the Eleventh Circuit was left with the task of asserting that the publication of the photographs was merely incidental to its commercial purpose. The court contended that: Although LFP argues that the photographs were illustrative of the substantive, biographical article included in Hustler, our review of the publication demonstrates that such is not the case. These photographs were not incidental to the article. Rather, the article was incidental to the photographs. (572 F.3d at 1209; emphasis supplied). Unfortunately, this type of "review" by an appellate court is exactly the type of judicial analysis that this Court warned about avoiding in Harper & Rowe, et al., su__u_pra. In an attempt to justify its conclusion that the publication was primarily commercial, the court notes that the cover of the March 2008 issue of Hustler states in capital letters, "Wrestler Chris Benoit’s Murdered Wife Nude." However, this proclamation was just one of nine cover statements describing -+material inside the March 2008 issue, along with a large picture of the cover model and a
23 title in large capital letters of the name of the magazine and other material therein. The reference to the "Murdered Wife" occupies but a small fraction of the cover (which specifies wrestler Chris Benoit and does not mention Nancy Benoit by name at all) and simply cannot convert the entire article and photographs into a "commercial use" sufficient to negate Petitioner’s First Amendment rights. Perhaps the primary rationalization of the Eleventh Circuit is its setting up a false scenario that, under LFP’s arguments, any notorious death would result in a carte blanche right to publish all images of that person taken during his or her lifetime, "regardless of whether those images were intentionally kept private, and regardless of whether those images are of any relationship to the incident currently of public concern." (572 F.3d at 1210). In fact, LFP has not made that argument. Petitioner agrees that actual photographic images of Benoit used principally for advertising purposes or for direct sale to the public would be "commercial speech" that would likely not defeat a right of publicity claim against it. Moreover, Decedent Nancy Benoit was not just any person, but a conceded public figure in her own right prior to her murder. However~ like a common law suit for defamation, any claim by her under the right of privacy died with her, leaving only a right of publicity. That right itself applies only to commercial uses, such as advertising or direct sales of a product bearing decedent’s likeness, as in the Martin Luther King case.
Page 1 and 2: No. LFP PUBLISHING GROUP, LLC, d/b/
Page 3 and 4: QUESTIONS PRESENTED 1. Whether the
Page 5 and 6: iii DISCLOSURE OF PARENT COMPANIES
Page 7 and 8: iv TABLE OF CONTENTS Page(s) QUESTI
Page 9 and 10: vi II. THE ELEVENTH CIRCUIT’S OPI
Page 11 and 12: viii Verified Complaint, With Exhib
Page 13 and 14: ix TABLE OF AUTHORITIES Page(s) CAS
Page 15 and 16: xi Virginia v. Black, 538 U.S. 343
Page 17 and 18: OPINIONS AND ORDERS BELOW On Octobe
Page 19 and 20: STATEMENT OF THE CASE This case pre
Page 21 and 22: 5 of Civil Procedure. The lower cou
Page 23 and 24: (41a, 15; 2a). At the time of her m
Page 25 and 26: 9 asserts that as part of a news st
Page 27 and 28: 11 Accord, Pavesich v. New England
Page 29 and 30: 13 II. THE ELEVENTH CIRCUIT’S OPI
Page 31 and 32: 15 In this case, the Eleventh Circu
Page 33 and 34: 17 B. The Eleventh Circuit Misinter
Page 35 and 36: 19 Ga. at 167. Petitioner submits t
Page 37: 21 counterbalancing and outweighing
Page 41 and 42: 25 publicity; if they were not, the
Page 43 and 44: 27 To conclude this aspect, the Ele
Page 45 and 46: 29 The test for determining newswor
Page 47 and 48: 31 (Citation omitted). (noting that
Page 49 and 50: 33 in the province of editors, and

LFP PUBLISHING GROUP, LLC, d/b/a Hustler ... - SCOTUSblog

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?