Toffoloni v. LFP PUBLISHING GROUP, LLC

                                                                      [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JUNE 25, 2009
                                No. 08-16148                 THOMAS K. KAHN
                          ________________________               CLERK


                     D. C. Docket No. 08-00421-CV-TWT-1

MAUREEN TOFFOLONI,
as Administrator and Personal Representative
of the Estate of Nance E. Benoit,

                                                              Plaintiff-Appellant,

                                     versus

LFP PUBLISHING GROUP, LLC,
d.b.a. Hustler Magazine,
MARK SAMANSKY,
an individual,
DEFENDANTS X, Y, AND Z,
other distributors and sellers
of Hustler Magazine,


                                                           Defendants-Appellees.


                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                 (June 25, 2009)
Before WILSON and ANDERSON, Circuit Judges, and GOLDBERG,* Judge.

WILSON, Circuit Judge:

       This case involves the newsworthiness exception to the Georgia state law

“right of publicity,” which arises out of the constitutional right to privacy. The

district court found that LFP Publishing Group, LLC’s (“LFP”) publication of

twenty year old nude photographs of Nancy Benoit fell squarely within the

newsworthiness exception. We reverse.

A.     Background

       Maureen Toffoloni is the mother and the administrator of the estate of

Nancy Benoit. Benoit and her son, both Georgia residents, were murdered by her

husband, Christopher Benoit, in June 2007. Christopher Benoit then committed

suicide. Prior to her death, Benoit was a model and professional woman wrestler.

Christopher Benoit was a well-known professional wrestler. Their deaths garnered

a great deal of domestic and international media attention.

       Approximately twenty years before her death, Benoit posed nude for

photographer Mark Samansky, who took both photographs and a video of her.

Toffoloni alleges that, immediately after the shoot, her daughter asked Samansky

to destroy the photographs and video and believed that Samansky had destroyed


       *
        Honorable Richard W. Goldberg, United States Court of International Trade, sitting by
designation.

                                               2
them. However, Samansky kept the video, from which he extracted nude and

partially nude photographic stills of Benoit. Samansky conveyed the photographic

stills to LFP, which published them in the March 2008 issue of Hustler magazine.

      In February 2008, Toffoloni brought suit against LFP in Georgia state court,

seeking to enjoin the publication of the photographs and seeking damages for

violation of Benoit’s right of publicity. LFP removed the case to the United States

District Court for the Northern District of Georgia. On October 6, 2008, the

district court granted LFP’s motion to dismiss for failure to state a claim,

concluding that “there is no dispute that Ms. Benoit’s death was a ‘legitimate

matter of public interest and concern.’ Therefore the publication of Ms. Benoit’s

nude photographs cannot be described as a mere commercial benefit for [LFP] -

although [LFP] (like nearly all journalistic outlets) no doubt seeks to profit from its

publications.” Toffoloni v. LFP Publ’g Grp., No. 1:08-CV-421-TWT, 2008 U.S.

Dist. LEXIS 82287, at *6 (N.D. Ga. 2008). Toffoloni appealed to the United

States Court of Appeals for the Eleventh Circuit.

B.    The Right of Publicity Under Georgia Law

      Georgia recognizes a right of publicity to protect against “the appropriation

of another’s name and likeness . . . without consent and for the financial gain of the

appropriator . . . whether the person whose name and likeness is used is a private



                                           3
citizen, entertainer, or . . . a public figure who is not a public official.” Martin

Luther King, Jr. Ctr. for Soc. Change, Inc. v. Am. Heritage Prods., Inc., 296 S.E.2d

697, 703 (Ga. 1982). “The right of publicity may be defined as [an individual’s]

right to the exclusive use of his or her name and likeness.” Id. at 700 (citation

omitted). Violation of the right of publicity is a state tort. Id. at 703. See also

Alonso v. Parfet, 325 S.E.2d 152, 153 (Ga. 1985) (“The courts in this state have

long recognized that one who makes an unsanctioned appropriation of another’s

name or likeness for his own benefit may be liable to that person in tort.”) (citation

omitted).

      The right of publicity grew out of a long-standing recognition of the right to

privacy under Georgia law. See Pavesich v. New England Life Ins. Co., 50 S.E. 68,

69-81 (Ga. 1905). Rooted in the right to privacy, the right of publicity is also

characterized by an economic concern that individuals be allowed to control the

use of their image in order to maximize the profit they can receive from its

publication. We will first discuss the privacy right underpinnings of the right of

publicity and then turn to its economic element.

      I.     The Right to Privacy Underpinning the Right of Publicity

      As the Supreme Court of Georgia has explained, “to each individual member

of society there are matters private, and there are matters public so far as the



                                            4
individual is concerned.” Pavesich, 50 S.E. at 69. “All will admit that the

individual who desires to live a life of seclusion can not be compelled, against his

consent, to exhibit his person in any public place, unless such exhibition is

demanded by the law of the land.” Id. at 70. Thus, “[t]he right of privacy within

certain limits is a right derived from natural law, recognized by the principles of

municipal law, and guaranteed to persons in [Georgia] by the constitutions of the

United States and of the State of Georgia, in those provisions which declare that no

person shall be deprived of liberty except by due process of law.” Id. at 71.

      Furthermore, “[o]ne who desires to live a life of partial seclusion has a right

to choose the times, places, and manner in which and at which he will submit

himself to the public gaze.” Id. at 70. “The right to withdraw from the public

gaze at such times as a person may see fit, when his presence in public is not

demanded by any rule of law is also embraced within the right of personal liberty.”

Id. Importantly, the Supreme Court of Georgia has specifically held that, except as

required by law, “the body of a person can not be put on exhibition at any time or

at any place without his consent.” Id.

      Concern about the publication of private photographs of individuals without

their consent fueled Samuel Warren’s and Justice Louis Brandeis’ famous article,

“The Right to Privacy,” which was substantially relied upon by the Supreme Court



                                           5
of Georgia in Pavesich, when the court first recognized the right to privacy. See

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 H ARV. L. R EV.

193, 195 (1890); Pavesich, 50 S.E. at 74-75. Warren and Brandeis maintained as

follows:

      Recent inventions and business methods call attention to the next step
      which must be taken for the protection of the person, and for securing
      to the individual what Judge Cooley calls the right “to be let alone.”
      Instantaneous photographs and newspaper enterprise have invaded the
      sacred precincts of private and domestic life; and numerous
      mechanical devices threaten to make good the prediction that “what is
      whispered in the closet shall be proclaimed from the house-tops”. . . .
      [t]he law must afford some remedy for the unauthorized circulation of
      portraits of private persons. . . .


Warren & Brandeis, 4 H ARV. L. R EV. at 195. Relying on Warren and Brandeis, the

Supreme Court of Georgia sought to protect individuals from exhibition against

their will by recognizing the right to privacy.

      The tort of invasion of privacy protects the right “to be free from

unwarranted publicity, . . . or the unwarranted appropriation or exploitation of

one’s personality, the publicizing of one’s private affairs with which the public had

no legitimate concern.” Gouldman-Taber Pontiac, Inc. v. Zerbst, 100 S.E.2d 881,

882 (Ga. 1957) (emphasis added) (internal quotation marks, citation, and

alterations omitted). From this right to be free of the public’s illegitimate gaze,

Georgia extrapolated a right of publicity– a right to control if, when, and under

                                           6
what circumstances one’s image is made public and subject to scrutiny.

      Georgia first recognized the right of publicity in Cabaniss v. Hipsley, 151

S.E.2d 496 (Ga. Ct. App. 1966). The court held that the plaintiff, who was an

exotic dancer, could recover from the Atlanta Playboy Club for its unauthorized

use of her photograph in an entertainment magazine advertising the club. The

court explained that “[u]nlike intrusion, disclosure, or false light, appropriation

does not require the invasion of something secret, secluded or private pertaining to

plaintiff, nor does it involve falsity. It consists of the appropriation, for the

defendant’s benefit, use or advantage, of the plaintiff’s name or likeness. . . . The

interest protected . . . is not so much a mental as a proprietary one, in the exclusive

use of the plaintiff’s name and likeness as an aspect of his identity.” Id. at 503-4

(internal quotation marks and citations omitted). Since the right of publicity is a

“proprietary” right, “the measure of damages is the value of the use of the

appropriated publicity.” Martin Luther King, 296 S.E.2d at 703.

      Subsequent to Cabaniss, the Georgia courts have expanded the right of

publicity to “recognize[] the rights of private citizens, as well as entertainers, not to

have their names and photographs used for the financial gain of the user without

their consent, where such use is not authorized as an exercise of freedom of the

press.” Id. (citations omitted). Additionally, the Supreme Court of Georgia held


                                            7
“that the right of publicity survives the death of its owner and is inheritable and

devisable.” Id. at 705.

       The Restatement (Second) of Torts, however, tempers the right of publicity,

providing that:

       No one has the right to object merely because his name or his
       appearance is brought before the public, since neither is in any way a
       private matter, and both are open to public observation. It is only
       when the publicity is given for the purpose of appropriating to the
       defendant’s benefit the commercial or other values associated with the
       name or the likeness that the right to privacy is invaded.


R ESTATEMENT (S ECOND) OF T ORTS § 652C cmt. d (1977) (emphasis added). Thus,

the Restatement clarifies that the right of publicity does not attach to that which is

“open to public observation.” Id. Accordingly, the right of publicity must attach

to that which is not open to public observation and is appropriated for the

commercial benefit of another.1

       II.     Economic Concerns Inherent in the Right of Publicity

       The Supreme Court of the United States has underscored the economic


       1
         “It is not the manner in which information has been obtained that determines whether it
is public or private. . . . The offense with which we are here involved is not the intrusion by
means of which information is obtained; it is the publicizing of that which is private in character.
The question, then, is whether the information disclosed was public rather than private – whether
it was generally known and, if not, whether the disclosure . . . can be said to have been to the
public at large.” Virgil v. Time, Inc., 527 F.2d 1122, 1126 (9th Cir. 1975) (citation omitted).


                                                 8
concern inherent in recognition of a right of publicity. The Supreme Court

considered the right of publicity in a case where a broadcasting company

transmitted an entertainer’s entire performance without his permission, essentially

appropriating the entertainer’s potential viewing audience. The Court held:

      [t]he rationale for [protecting the right of publicity] is the straight-
      forward one of preventing unjust enrichment by the theft of good will.
      No social purpose is served by having the defendant get free some
      aspect of the plaintiff that would have market value and for which he
      would normally pay.


Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 576, 97 S. Ct. 2849, 2857

(1977) (internal quotation marks and citation omitted). Thus, when a media outlet

appropriates “some aspect” of an individual “that would have market value and for

which he would normally pay,” without that individual’s permission, the media

outlet is subject to damages in a tort suit for violation of the right of publicity. Id.

C.    The “Newsworthiness” Exception to the Right of Publicity

      The right to privacy and corresponding right of publicity are necessarily in

tension with the First Amendment’s protection of freedom of speech and of the

press. The First Amendment provides that “Congress shall make no law . . .

abridging the freedom of speech, or of the press. . . .” U.S. C ONST. amend. I.

Additionally, the Georgia state constitution provides that “[e]very person may

speak, write, and publish sentiments on all subjects but shall be responsible for the

                                            9
abuse of that liberty.” G A. C ONST. art. I, § I, para. V. As the Supreme Court of

Georgia has explained, “[t]he right preserved and guaranteed against invasion by

the constitution is therefore the right to utter, to write, and to print one’s

sentiments, subject only to the limitation that in so doing he shall not be guilty of

an abuse of this privilege by invading the legal rights of others.” Pavesich, 50

S.E. at 73.

       Both the rights to freedom of speech and freedom of the press, as guaranteed

by the First Amendment, and the right to privacy, as guaranteed by the Due

Process Clause, are fundamental constitutional rights. The Constitution directs no

hierarchy between them. Thus, courts are required to engage in a fact-sensitive

balancing, with an eye toward that which is reasonable and that which resonates

with our community morals, in order to protect the Constitution as a whole.

       In order to navigate between the competing constitutionally protected rights

of privacy and publicity and the rights of freedom of speech and of the press, the

Georgia courts have adopted a “newsworthiness” exception to the right of

publicity. The Supreme Court of Georgia has held that “where an incident is a

matter of public interest, or the subject matter of a public investigation, a

publication in connection therewith can be a violation of no one’s legal right of

privacy.” Waters v. Fleetwood, 91 S.E.2d 344, 348 (Ga. 1956).


                                            10
       The Georgia Supreme Court has further distinguished commercial use from

newsworthy use, stating that “[t]here is in the publication of one’s picture for

advertising purposes not the slightest semblance of an expression of an idea, a

thought, or an opinion, within the meaning of the constitutional provision which

guarantees to a person the right to publish his sentiments on any subject.”

Pavesich, 50 S.E. at 80. Accordingly, where a publisher may be precluded by the

right of publicity from publishing one’s image for purely financial gain, as in an

advertisement, where the publication is newsworthy, the right of publicity gives

way to freedom of the press.2


D.     Analysis of LFP’s Publication of the Nude Photographs

       This case requires us to consider the nature and extent of the newsworthiness

exception to the right of publicity. “It is in the determination of newsworthiness –

in deciding whether published or broadcast material is of legitimate public concern



       2
        The Supreme Court of California has identified a number of factors to be considered
when a court determines whether a particular fact qualifies as newsworthy.
       Among the factors to consider are the depth of the intrusion into the plaintiff's
       private affairs, the extent to which the plaintiff voluntarily pushed himself into a
       position of public notoriety . . . and whether the information is a matter of public
       record. . . . The weighing process continues in light of the circumstances prevailing
       at the time of publication.
Forsher v. Bugliosi, 608 P.2d 716, 727 (Cal. 1980). We agree that each of these factors is
potentially relevant to determining whether the published fact could reasonably be considered
newsworthy.


                                             11
– that courts must struggle most directly to accommodate the conflicting interests

of individual privacy and press freedom.” Shulman v. Group W Prods., Inc., 955

P.2d 469, 479 (Cal. 1998). Toffoloni argues that she should be allowed to sue for

damages incident to the publication of nude pictures of her deceased daughter

because those photographs were published against her express direction and were

violative of her daughter’s right of publicity. LFP responds that it published an

article on the life, career, and tragic death of Benoit, which “includes comment on

the modest beginnings of Ms. Benoit’s career, and is accompanied by images of

Ms. Benoit from that time.” LFP argues that the article and related images are of

substantial public interest and are therefore newsworthy.

      Our resolution of this case commands an intensive review of both the

relationship between the published photographs and the corresponding article, as

well as the relationship between the published photographs and the incident of

public concern – Benoit’s murder. We review the district court’s grant of LFP’s

motion to dismiss for failure to state a claim upon which relief can be granted,

pursuant to Federal Rule of Civil Procedure 12(b)(6), de novo. Berman v. Blount

Parrish & Co., 525 F.3d 1057, 1057 (11th Cir. 2008).

      I.     The Incidental Relationship Between the Article and Photographs

      First, it seems clear that had LFP published the nude photographs of Benoit



                                          12
by themselves– i.e., without a corresponding news article– the publication would

not qualify within the newsworthiness exception. The fact of Benoit’s nudity is

not in and of itself newsworthy. “While one who is a public figure or is presently

newsworthy may be the proper subject of news or informative presentation, the

privilege does not extend to commercialization of his personality through a form of

treatment distinct from the dissemination of news or information.” Gautier v. Pro-

Football, Inc., 107 N.E.2d 485, 488 (N.Y. 1952) (citations omitted). The nude

photographs “impart[] no information to the reading public.” McCabe v. Vill.

Voice, Inc., 550 F. Supp. 525, 530 (E.D. Pa. 1982). The photographs, by

themselves, serve no “legitimate purpose of disseminating news . . . and needlessly

expose[] aspects of the plaintiff’s private life to the public.” Id. (internal quotation

marks and citations omitted). Indeed, people are nude every day, and the news

media does not typically find the occurrence worth reporting.

      Here, however, LFP published the photographs alongside a biographical

piece on Benoit’s career. The biographical piece, in and of itself, certainly falls

within the newsworthiness exception. See generally Hustler Magazine v. Falwell,

485 U.S. 46, 108 S. Ct. 876 (1988). The question before us is whether a brief

biographical piece can ratchet otherwise protected, personal photographs into the

newsworthiness exception.


                                           13
      As the Second Circuit has held, “it is appropriate for a court to consider

whether the public interest aspect of the publication is merely incidental to its

commercial purpose.” Titan Sports, Inc. v. Comics World Corp., 870 F.2d 85, 87-

88 (2d Cir. 1989) (internal quotation marks and citation omitted). 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.

      The magazine cover advertises “WRESTLER CHRIS BENOIT’S

MURDERED WIFE NUDE.” The table of contents lists “NANCY BENOIT

Exclusive Nude Pics of Wrestler’s Doomed Wife.” Neither the cover nor the table

of contents makes any reference to the accompanying article. The article is entitled

“NANCY BENOIT Au Naturel: The long-lost images of wrestler Chris Benoit’s

doomed wife.” The title and page frame, which reads “EXCLUSIVE PICS!

EXCLUSIVE PICS!,” comprise about one-third of the first page. A second third

of the page is devoted to two nude photographs of Benoit. The final third of the

page discusses Benoit’s murder and her nude photo shoot, twice referencing her

brief desire to be a model. The second page of the article is entirely devoted to

photographs, displaying eight additional photographs of Benoit. The heart of this



                                           14
article was the publication of nude photographs– not the corresponding biography.

      The Martin Luther King, Jr., Center for Social Change case is particularly

relevant here. In that case, the Supreme Court of Georgia answered several

certified questions about the existence and extent of the right of publicity under

Georgia law in the context of whether the Martin Luther King, Jr., Center for

Social Change, Inc. and Coretta Scott King, as administratrix of Dr. King’s estate,

possessed a right of publicity in Dr. King’s image. Martin Luther King, 296

S.E.2d at 699. The plaintiffs argued that their right of publicity was violated when

B&S Sales manufactured and sold a plastic bust of Dr. King without their

permission. Although the opinion does not deal expressly with the

“newsworthiness” exception to the right of publicity, the Supreme Court of

Georgia specifically notes that B&S Sales offered a free biographical booklet

detailing “the life of Dr. King entitled ‘A Tribute to Dr. Martin Luther King, Jr.,’”

alongside the bust. Id. at 698. The court did not conclude that the booklet

rendered Dr. King’s image, in and of itself, newsworthy. Rather, the opinion treats

the existence of the booklet as irrelevant. The booklet was merely incidental to the

bust. Without more, Dr. King’s estate’s right of publicity in his image could trump

freedom of speech and the press.

      We are convinced that the Supreme Court of Georgia would find similarly



                                          15
here. LFP’s brief biography of Benoit’s life, even with its reference to her

youthful pursuit of modeling, is merely incidental to its publication of her nude

photographs. Therefore, the biographical piece cannot suffice to render the nude

photographs newsworthy.

       II.   Relationship of the Photographs to the Incident of Public Concern

       Furthermore, we are convinced that the nude photographs are not connected

to the incident of public concern. LFP would have us rule that someone’s

notorious death constitutes a carte blanche for the publication of any and all images

of that person during his or her life, regardless of whether those images were

intentionally kept private and regardless of whether those images are of any

relation to the incident currently of public concern. We disagree.

       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. Such a ruling would eviscerate the Georgia

right of publicity, allowing the exception to swallow the rule. Rather, the Georgia

courts have consistently indicated that there are timeliness or relatedness

boundaries that circumscribe the breadth of public scrutiny to the incident of public

interest.

       For example, in Tucker v. News Publishing Company, 397 S.E.2d 499 (Ga.



                                          16
Ct. App. 1990), the court recognized that “through no fault of his own, [the]

appellant [who had been attacked] became the object of public interest.” Id. at 500

(internal quotation mark omitted). The attack itself “necessarily became a matter

of legal investigation and the subject matter of public records.” Id. Thus, the court

concluded “[d]uring the pendency and continuation of the investigation, and until

such time as the perpetrator[s] of the crime may be apprehended and brought to

justice under the rules of our society, the matter will continue to be one of public

interest, and the dissemination of information pertaining thereto would not amount

to a violation of [appellant’s] right of privacy.” Id. (internal quotation marks and

citation omitted) (emphasis added). The court expressly envisioned outside

boundaries to the realm of public scrutiny: “the matter [of] public interest” and the

“time [that] the perpetrator[s] of the crime may be apprehended and brought to

justice. . . .” Id. (internal quotation marks and citation omitted).

      Similarly, in Ramsey v. Georgia Gazette Publishing Company, 297 S.E.2d

94, 96 (Ga. Ct. App. 1982), the court recognized that the “plaintiff has, albeit

unwillingly, become an actor in a public drama.” As such, “[d]issemination of

information pertaining to this drama is no violation of the plaintiff’s right of

privacy.” Id. (emphasis added). Correspondingly, we conclude that the Georgia

courts would find that dissemination of information that does not pertain to the



                                           17
“drama” at hand may violate an individual’s right of privacy. Although the

Georgia courts have not said that public scrutiny is circumscribed solely to the

details of the newsworthy event itself, the Georgia courts have required reasonable

timeliness and relatedness boundaries.

      When determining where such boundaries should be drawn, we are guided

by the commentary on the permissible publicity of private facts in the Restatement

(Second) of Torts. The Restatement recognizes that, although an individual may

be rendered subject to public scrutiny by some newsworthy event, “[t]he extent of

the authority to make public private facts is not . . . unlimited.” R ESTATEMENT

(S ECOND) OF T ORTS § 652D cmt. h. The Restatement concludes that even public

figures, like actresses, may be “entitled” to keep private “some intimate details . . .

such as sexual relations. . . .” Id. “The line is to be drawn when the publicity

ceases to be the giving of information to which the public is entitled, and becomes

a morbid and sensational prying into private lives for its own sake, with which a

reasonable member of the public, with decent standards, would say that he had no

concern.” Id. (emphasis added). The Restatement expounds that “[t]he limitations

. . . are those of common decency, having due regard to the freedom of the press

and its reasonable leeway to choose what it will tell the public, but also due regard

to the feelings of the individual and the harm that will be done to him by the



                                           18
exposure.” Id. Furthermore, “[s]ome reasonable proportion is also to be

maintained between the event or activity that makes the individual a public figure

and the private facts to which publicity is given.” Id. (emphasis added).

      Here, the published nude photographs were in no conceivable way related to

the “incident of public concern” or current “drama”– Benoit’s death. The district

court erred in its reliance upon Waters v. Fleetwood, 91 S.E.2d 344 (Ga. 1956), in

which the Supreme Court of Georgia “found no actionable right when a defendant

featured gratuitous, sensational photographs alongside a legitimate news article” to

direct the dismissal of Toffoloni’s claim. Toffoloni, No. 1:08-CV-421-TWT, at *6.

In Waters, a newspaper published photographs of a murdered child’s deceased

body, as illustrative of an article about her murder and the subsequent

investigation. Benoit’s situation is distinct from the situation in Waters. In

Waters, the offensive photographs were of the child’s deceased body, and as such

were directly related to the “incident of public interest” – the child’s death. LFP

published photographs of Benoit that were at least twenty years old to correspond

to a brief discussion about her aspiring career as a model. Those photographs had

no relation to her death. Her aspiring nude modeling career at no time developed

into an incident of public concern, and for good reason– Benoit sought the

destruction of all of those images.



                                          19
      LFP may not make public private, nude images of Benoit that she, allegedly,

expressly did not wish made public, simply because she once wished to be a model

and was then murdered. “[W]hen a person is involuntarily involved in a

newsworthy incident, not all aspects of the person’s life, and not everything the

person says or does, is thereby rendered newsworthy.” Shulman, 955 P.2d at 484.

      We agree with the Ninth Circuit that “[m]ost persons are connected with

some activity, vocational or avocational, as to which the public can be said as a

matter of law to have a legitimate interest or curiosity. To hold as a matter of law

that private facts as to such persons are also within the area of legitimate public

interest could indirectly expose everyone’s private life to public view.” Virgil, 527

F.2d at 1131.

      Moreover, we are guided by the Tenth Circuit’s conclusion that “[b]ecause

each member of our society at some time engages in an activity that fairly could be

characterized as a matter of legitimate public concern, to permit that activity to

open the door to the exposure of any truthful secret about that person would render

meaningless the tort of public disclosure of private facts.” Gilbert v. Med. Econ.

Co., 665 F.2d 305, 308 (10th Cir. 1981). We agree with the Tenth Circuit that the

First Amendment “does not require such a result. Therefore, to properly balance

freedom of the press against the right of privacy, every private fact disclosed in an


                                           20
otherwise truthful, newsworthy publication must have some substantial relevance

to a matter of legitimate public interest.” Id. (emphasis added). See also Haynes

v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1232 (7th Cir. 1993) (“An individual, and

more pertinently perhaps the community, is most offended by the publication of

intimate personal facts when the community has no interest in them beyond the

voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger.”).

      The photographs published by LFP neither relate to the incident of public

concern conceptually nor correspond with the time period during which Benoit was

rendered, against her will, the subject of public scrutiny. The photographs bear no

relevance– let alone “substantial relevance”– to the “matter of legitimate public

interest.” Gilbert, 665 F.2d at 208. On these facts, were we to hold otherwise,

LFP would be free to publish any nude photographs of almost anyone without their

permission, simply because the fact that they were caught nude on camera strikes

someone as “newsworthy.” Surely that debases the very concept of a right to

privacy.

      III.   Economic Ramifications of LFP’s Publication of the Photographs

      Finally, we are guided by the Seventh Circuit’s opinion in Douglass v.

Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), to conclude that LFP may

be held liable in damages for violation of the right of publicity when it published

                                           21
images of Benoit that had economic value without her permission– let alone

without compensating her estate.

      The Douglass case has many similarities to this case. Robyn Douglass

posed nude for Playboy magazine and images from that shoot were published in

Playboy. Later, Hustler ascertained other, previously unpublished photographs of

Douglass from the photographer and published them in Hustler without Douglass’

permission and without compensating her. Hustler published these images

alongside biographical information about Douglass’ acting career. Douglass

brought suit seeking compensation for the violation of her right of publicity. Much

like in this case, Hustler argued that Douglass was newsworthy and that “Robyn

Douglass Nude” was fair comment on her career.

      The Seventh Circuit disagreed:


      Robyn Douglass or her agents must have control over the
      dissemination of her nude photographs if their value is to be
      maximized. Hustler can run a story on her and use any photographs
      that are in the public domain or that it can buy but it cannot use
      photographs made by others for commercial purposes and
      (temporarily) withheld from public distribution.
            The unauthorized publication did impair the commercial
      exploitation of Douglass’[] talents, though probably not as much as
      she asserts and mainly because of where they were published. But an
      important aspect of the ‘right of publicity’ is being able to control the
      place as well as time and number of one’s public appearances; for
      example, no celebrity sells his name or likeness for advertising
      purposes to all comers. In any event, Douglass was not paid by

                                         22
      Hustler for the right to publish nude photos of her.


Id. at 1138-39 (citation omitted). Likewise, LFP has published photographs of

Benoit in Hustler without the permission of her estate and without compensation

and attempts to justify their publication as comment on her career.

      Notably, the primary difference between Douglass’ case and Benoit’s case is

that Benoit does not seem to have ever sought to have nude photographs of herself

published. As stated by the Supreme Court of Georgia, “a person who avoids

exploitation during life is entitled to have his image protected against exploitation

after death just as much if not more than a person who exploited his image during

life.” Martin Luther King, 296 S.E.2d at 706 (emphasis added).

      We agree with the Seventh Circuit that this “unauthorized publication”

impaired “the commercial exploitation” of Benoit’s image. Certainly, “an

important aspect of the ‘right of publicity’ is being able to control the place as well

as time and number of one’s public appearances. . . .” Douglass, 769 F.2d at 1138.

Crude though the concept may seem in this context, Toffoloni is entitled to control

when and whether images of her daughter are made public in order to maximize

the economic benefit to be derived from her daughter’s posthumous fame.

D.    Conclusion



                                           23
      These private, nude photographs were not incident to a newsworthy article;

rather, the brief biography was incident to the photographs. Additionally, these

photographs were neither related in time nor concept to the current incident of

public interest. We hold that these photographs do not qualify for the

newsworthiness exception to the right of publicity. Accordingly, we reverse and

remand for further proceedings.

      REVERSED AND REMANDED.




                                         24