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Will Skin Mag Hustle 11th Circuit in Right of Publicity Claim?

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By Robyn Hagan Cain on January 27, 2012 3:06 PM

Do Hustler's First Amendment rights protect the magazine's decision to print 20-year-old nude photos of slain former-wrestler Nancy Benoit months after her husband, Chris Benoit, killed her?

Hustler claims that the First Amendment insulates the publication from right of publicity liability because the murder made Nancy a newsworthy figure. The Eleventh Circuit Court of Appeals ruled against Hustler in 2009, noting, "The Georgia courts have never held, nor do we believe that they would hold, that if one is the victim of an infamous murder, one's entire life is rendered the legitimate subject of public scrutiny."

Last year, a jury hit Hustler with $19.6 million in punitive damages for publishing the pics, reports First Amendment Center. A federal judge later reduced the award to $250,000 to comply with a Georgia damages cap, and awarded Nancy's family $125,000 in compensatory damages. This week, Nancy's family asked the Eleventh Circuit to reinstate the multi-million dollar judgment, while Hustler questioned the court's reasoning behind letting the case proceed to trial in the first place.

So what are the odds that the Eleventh Circuit Court of Appeals will reverse its 2009 holding, and find that the images fall within the newsworthiness exception to a right of publicity claim? We're guessing slim to none.

During Wednesday's hearing, Hustler attorney Derek Bauer mainly repeated arguments that the Eleventh Circuit rejected two years ago, claiming that publications are protected when publishing "matters of public concern," reports The Washington Post. Bauer classified the nude photographs as a matter of public concern, noting "The public is interested in celebrities. I don't necessarily approve of it, but that's for the public to decide."

The Eleventh Circuit previously criticized that claim, finding that the nude photographs "were not incidental to the article. Rather, the article was incidental to the photographs." The court went on to analyze the amount of space the magazine dedicated to the newsworthy-event, Nancy's murder, versus the amount of space it allotted for the photographs and copy touting the photographs, concluding, "The heart of this article was the publication of nude photographs-not the corresponding biography."

If you're litigating a right of publicity claim in the Eleventh Circuit Court of Appeals, remember that the court is unlikely to rule that images fall within a newsworthiness exception unless the images are accompanied by actual ... news.

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