Use of photograph by sexually oriented magazine without subject's consent supports false impression claim

Law Reporter, Oct 2002

Solano v. Playgirl, Inc., 292 RM 1078 (9th Cir. 2002).

The Ninth Circuit Court of Appeals held that an actor whose photograph was used on the cover of a sexually oriented magazine without his consent can sue the magazine for false impression.

Here, Solano's photograph appeared on the cover of a magazine that routinely featured pictures of nude men. Solano, who did not appear nude in the magazine and did not consent to the use of the photograph, sued the magazine, alleging it deliberately created the false impression that he did appear nude. The trial court granted defendant summary judgment, finding that plaintiff failed to establish defendant had created a false impression about what readers would see inside the magazine.

Reversing, the Ninth Circuit explained that, to prevail on a false light claim, plaintiff must show that (1) defendant disclosed information about plaintiff that was presented as factual but was actually false, (2) the information was understood as implying something highly offensive that could injure plaintiffs reputation, (3) defendant acted with malice, and (4) plaintiff was damaged by the disclosed information.

Addressing the first factor, the court agreed with plaintiff that the use of the photograph on a magazine that usually features sexually suggestive nude pictures of men creates a triable issue of fact regarding the falsity of the message conveyed by defendant. Turning to the second factor, the court noted that a defendant is liable for what is insinuated as well as for what is stated explicitly. Here, defendant, with its cover text and accompanying picture of plaintiff, insinuated what readers would see of plaintiff inside the magazine. To be depicted as voluntarily associated with such a publication is unquestionably degrading to an average person, the court said.

Regarding the third factor, the court found that plaintiff must show that defendant knowingly or recklessly created a false impression. Citing testimony from defendant's employees, the court said that defendant's vice president generally instructed editorial staff to imply there was more nudity in the magazine than there was. In addition, the staff raised concerns before the issue was published that readers would think plaintiff appeared nude in the magazine. Given this testimony, the court said, a jury could find that defendant knowingly or recklessly published the misleading cover.

Turning to the fourth factor, the court referred to plaintiffs testimony that he suffered both familial and personal humiliation and his claim that several possibilities for appearing on television shows did not materialize after the magazine's publication. Although there was also testimony that plaintiff did not lose any jobs because of the magazine, the court cited case law supporting an award of damages based solely on a plaintiffs humiliation and embarrassment.

Accordingly, the court remanded the case for further proceedings.

Plaintiff's Counsel

Jonathan H. Anschell, Los Angeles, Cal.