Hustler loses a round in fair use of news anchor’s image in mag

I was quite surprised when reading a recent story via Reuters that says “Hustler loses appeal over news-anchor photo” – I assume that this will be appealed again and that another jury or set of judges will change the verdict in this case. Now if someone will send me a copy of the Feb 2006 issue so I can have a closer look at the magazine and see how they reached this conclusion in the first. My initial thought is that perhaps since this case was debated in Ohio where the jury may have had an emotional connection with a local news woman and wanted to punish anyone republishing her photo – legal or not. Of course at the moment I am merely going by a few news stories I have read, and I am not familiar with all the details of this case.

Censored Hustler Tshirt Pic found at eModa.com

From what I do know, Hustler magazine is not just a mag full of naughty pictures. Well at least the 200 or so issues I have read certainly had lots of stories and text, and not nearly enough naughty pics – but more research may be needed! I have actually seen several really good and sometimes breaking news and newsworthy commentary come from many Hustler magazines. I have found some very profound books by reading some of the interviews, and I can honestly say that several of the issues I have purchased were more about trying to get some non-mainstream corporate sponsored news and opinions. Some months Larry Flynt has some really interesting things to say in his editorials, and sometimes they have interviews and reviews of subjects that you just don’t find on the front page of yahoo news, or on your local news at 10. Of course there are some months were the news is not overly interesting – but that’s the world we live in. At least you can count on there being some interesting art and humor in the mix as well.

The article I initially read about this fair use thing said that the news girl was photographed doing a wet t-shirt contest. She says that she was photographed without her knowledge – I am not quite sure what she means by that – the photo and wet t-shirt contest was in March of 2003. Cell phone cameras and the exploitation of women baring their breasts for male attention had been exploited and exposed for some time via girls gone wild and cell phone camera were pretty prevalent in that day weren’t they? Perhaps someone who lived in the mountains of Tibet may not expect to be photographed, but someone who is a news anchor – well, I am not saying it’s not true, I just find it surprising to say, unless she was inferring that she was so drunk that she didn’t know she was in a public place when pushing her tits into the spotlight.

That’s not really the issue at the moment in this case, at the moment my real surprise is that the use of these images as a news worthy item, the fair use thing. It seems that a jury said no, and a few judges in an appeals court upheld this. They awarded the woman with $100,000 + award for the use of her images. Now it does say that after this girl found her pics online, she found the photographer, bought the rights tot he pictures, and then took the time to register them with the US copyright office – good move. So maybe the jury and judges were considering that extra copyright protection she had added to her pics, and looked at that. However, let’s say this was a breaking news story – like some politician had some pics in a wet t shirt contest, and she had done the same; purchased the rights and copyrighted them. Would a news station or news paper, or news magazine have to ask permission and license / pay rights to the politician before they could publish the story? I don’t think that should be the case, and if it was the case, then paparazzi could make more money by selling rights to bad photos right to the celebs and politicians rather than releasing them as news items.

It’s really too bad that this woman did not want her photos published. Some would say she should now have gotten on a stage and showed her breasts through a wet shirt if that’s the case – and unfortunately in this day and age that is kind of true and a lesson that many college aged men and women have learned from others’ mistakes – which makes many spring break parties these days much more tame than they used to be. (Where is that news story I read a while back? Maybe I’ll add it later)

I think women (and men too) should have no camera / cell phone spaces where they can feel free to dance, yell, sing, or do whatever they want to express themselves, get out some fun, relieve some stress, and not have to worry about pictures or videos showing up around the world of this. With just about everyone having a cell phone cameras, or other recording devices in their pockets 24/7 and all the “security” cameras popping up everyone, it would seem that these “recording device free zones” will be super premium space in the future. More on that later in another post.

I think it would of been reasonable for their news girl to have contacted Hustler and said hey, we see you are running a story with our pics, but I had them copyrighted and it’s not fair for you to use them in such a such way, so how about we work something out. Now I know it may be impossible to think in this way if it happened to you, and all the sudden you thought about the reputation would have with your tits being in Hustler magazine – but let’s see the reality. In reality as of this moment the jury awarded this woman $135,000 plus some ridiculous lawyer fees.

Now if I was Hustler, I am not sure I would of agreed to give this girl $100,000 for some wet t-shirt photos. Maybe they could of worked something out with additional pics, and interview, and cover photo or something and came up with some numbers that would work around that, I dunno. I do know that if that route had somehow been worked out, then maybe a payment could of been made, and then these people would not have spent so much on lawyers fees, court costs, and then dealing with all the PR and news stories – now if all the parties involved could take all that out of the equation, then maybe a smaller amount would make sense for everyone – it would be basically forgotten, and all is well. Maybe not – it’s just a thought I am having right now.

It could be the principal of the matter for each of the parties. It could be the principal of LFP and their desire to be taken seriously as a news publication and given the same publishing and fair use rights that other news outlets enjoy, and so no settlement would of worked for them. IT could of been a principal thing for the new woman who wanted to fight it publicly and make a stand whether she won or not. I really don’t know. Anytime someone gets on these principals thing you can pretty throw out logic and take it to the courts and let the lawyers argue, in which case usually both parties lose. One way or another both parties are losing, sure one may win this round, and another may be able to say they will win the next – regardless of who wins in the end, both are having to spend time and money fighting it – and that especially sucks considering this is coming from someone who makes a living from news publishing, suing another publisher for publishing photos taken at a public event.

If these pictures were published in one of the sub-magazines of playboy, I could see the issue being more real – like some of the sub mags from playboy I have seen where they have a bunch of pictures of girls in lingerie, or the girls of home depot (is that what that was called?) – or playboy’s amateur casting – you know, any of those mags that are full of pics and have little to no text, then that might be different. The main playboy magazine has plenty of news, and art, and other stuff, so if one of these main magazines include a news worthy article with some pics, then it is what it is.

As I mentioned earlier, I have not seen the Feb 2006 issue of this Hustler, but I would like to get my hands on it. I tried to find it online, and the first few google results did not show any place that had it in stock. From what one site showed as the cover photo from the issue, I did not see this news woman’s photo on the cover, and I did not see anything on the cover that says “international news anchor superstar shows her tits – her pics inside” – so to think that hustler was accused of using this girl’s images to sell magazine and to profit – well.. let’s see here..

If it was a scandal, like the first lady nude, and it was blazed on the cover, then that would perhaps be being used to sell the magazine. If they are saying that hustler having some news stories inside that are controversial and racy, and that is what is used to sell the magazine, and since this woman was part of one of these news stories she should be compensated – well then they are admitting that Hustler provides news every month, and just like newsweek, they use news to sell a news publication.

Something else I though odd… one of the thing Judge Eric Clay wrote as published by law.com

Furthermore, considering the amount of the copyrighted work used, LFP “published the entire photograph at issue less minor cropping of the background,” Clay wrote. Additionally, the publication of the photograph directly competed for a share of the market for it.

So does this mean that the amount of money being awarded was based upon the intention of this woman to market her titty pics for profit? I mean if she was trying to sell the pics, and not yet struck a deal, then I could see taking this into consideration – but if she was basically holding the rights to keep them from popping up in commercials for girls gone wild, or college party phone sex ads, or ads for the bar downtown – then the photos published as part of a story in Hustler we not really competing in any market.

Didn’t something like this come up with Perez Hilton with the Britney Spears pussy pictures the paparazzi tried to control or something?

I think there are some important things to be figured out with this case, and the ramifications could be affecting the way the paparazzi do business, the way the enquirer and other publications run stories. The possible censorship and use of copyright threats to stop important stories. This could also create a kind of blackmail market for rights holders of pics – not that there kind of isn’t already I guess.

Anyhow, I am not a lawyer. I do not have all the facts of this case, and I am not sure that the limited information I have gathered is accurate in any way shape or form. This is just some random thoughts at 2am. In the spirit of full disclosure, we do run some affiliate promos with Hustler on some of our sites sometimes, we have also affiliated with Playboy, and Penthouse too for that matter. I think there was a time when we did some promotions for girls gone wild, and perhaps other things mentioned in this post – or competition to things mentioned in this post. So some people will say ignore what is being said here as it is tainted in some way.

I do think it’s a shame that this woman could not have a fun night out at an adult establishment without worrying about it coming back later to haunt her in some way.

I wish we could go back to the days before camera phones, digital cameras, and security footage all around us. What a wonderful world it was when we could have fun as adults and let loos without worrying that every misstep we could make would be recorded and republished by multiple sources in multiple places. Even in places where cameras are prohibited, like strip clubs, you can’t be 100% sure that some asshole is not in there somewhere taking pictures or video of you. Even places that jam cell phone signals do not render useless the camera ability from taking your image either.

I suppose people 30 and older will one day realize how liberating it was to be able to have fun in adult places without having to worry about all this. Anyone 30 or under probably has no idea what that would be like. What kind of a world would it be without smart phones? HA! Convenience vs Security vs Privacy… Sanity vs False sense of security is what I think.

Tagged , , , . Bookmark the permalink.

Comments are closed.