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March 04, 2006


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I agree, I'd be surprised if it's okay but I'd also be surprised if Playboy and its lawyers weren't more than familiar with what they can get away with...

Damin J. Toell, Esq.

Surely we could stipulate that, as a very regular activity, magazines put celebrities on their covers without consent. If this wasn't the case, most of the gossip rags would have to use covers with text only or images of inanimate objects that had no right of publicity.

Although I'm more familiar with federal laws on this rather than New York State law in particular (despite my guess that NY law is not that which would applicable to the theoretical suit of Alba v. Playboy), generally speaking, the touchstone consideration for these types of suits is whether some kind of endorsement is implied by the use of the image.

Here, I'm not sure that Alba has much to go on. Based solely on the Yahoo! image of the cover that you provide, there's not much of an implication that Alba is going to be nude, even though some Playboy cover-viewers that have an immunity to context might have an expectation that a covergirl is going to be seen nude inside. It is quite clearly stated in the surrounding text that Ms. Alba has been selected as one of the "25 Sexiest Celebrities," and does not indicate that she will be seen nude in the magazine's interior.

I think the best argument that Alba has in her favor is that Playboy superimposed the silhouette of the bunny on her bikini top (which I don't see in the image provided, but I'm taking on faith based on the Yahoo! report and Playboy's standard practice of hiding the bunny on the cover). This could indicate that Alba did give her approval to the image, and perhaps even that it was done at a photoshoot specifically for Playboy. While I think it stills leaves her with a difficult argument regarding the idea that that alone could fool readers into believing she will be nude inside (do they also think that Kanye West, whose name is emblazoned on the cover, will also be naked?). Someone can willingly participate in a feature article for Playboy without being nude. So, at best, I think Alba might have a claim as to her consent in promoting Playboy by way of the superimposed bunny, but I think the implied nudity argument is probably a non-starter.

All of that said, given applicable state laws, as well as attorneys with much more expertise than mine, could lead to differing conclusions.


Nicole Black

But, they obtained the publicity photo through deceit. It's one thing to buy candid shots from paparazzi and put them on the cover--it's another to obtain a publicity photo for which she willingly posed and use that on the cover of a magazine that typically has nude photos of the women on the cover inside.

That being said, I think that you're probably correct, and have full faith and cinfidence in Playboy's lawyers.

But, even if it was legal, it wasn't very nice. I won't be buying one of their magazines any time soon. No big loss to Playboy, though, since it wasn't bloody likely that I'd have purchased one in any event!

Damin J. Toell, Esq.

Using the photo for purposes other than its original intended use isn't really the same as obtaining it by deceit. If there was an issue concerning how Playboy obtained the photo (in a case, as in this one, where the subject was a willing participant in what was known to them to be a photo shoot), it would be the copyright holder that would have a cause of action, and that would probably be Sony. If Playboy licensed from Sony (or whoever) in a way that allows them to use it on a magazine cover, then there was no deceit in the manner in which they obtained it.

To the extent that Alba posed for the photo willingly for one purpose but it was eventually used (or re-used) for another, that's what model release forms are for. We can probably be fairly sure that if Sony is going around licensing that photo for use in magazines, then Alba executed a release allowing her image to be used for that purpose. Alba can't later claim she was duped, since she would have already signed away her right to object to its use.

Photos that have been willingly taken for one purpose but used for another purpose are also a common event with gossip tabloids. They typically use things like red carpet photos where the subject willingly posed (e.g., to show off their new Vera Wang gown) for a different purpose (e.g., to show them with an unfortunate facial expression at a random moment on the red carpent in order to indicate a look of horror because they have recently been served with a divorce papers). In those situations, it would almost never be the case that the tabloid is using the photo for the purpose intended by the subject.

Now, if the photo itself was taken in a way that intruded upon the subject's privacy, an entirely different set of causes of action could arise pursuant to NY Civil Rights Law §§ 50 and 51.

Nicole Black

I'm familiar with NY Civ. Rts Law s. 50 & 51. I recently posted about it in the case re: the Orthodox Jew whose likeness was used in a photographic exhibit. So I understand that aspect of your comment.

And, I don't doubt that you're correct, Damin. This is totally not my area of expertise.

I know I keep repeating this, but it just doesn't seem fair. People get paid a lot of $ for posing for cover shots, don't they? Or is it generally just done for publicity? Presumably, Playboy will sell a lot of issues because Alba's on the cover. Seems like it's a windfall for them.

In any event, it does make sense that Sony has the cause of action. Sony provided the photo, apparently without the knowledge that it was to be used on the cover.


I just want to say: Damin, you're awesome.

Damin J. Toell, Esq.

slickdpdx, if only you were an attractive female... ;)

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