USDC N.D. Georgia, October 6, 2008

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The U.S. District Court for the Northern District of Georgia held that Hustler Magazine did not violate the right of publicity of Nancy Benoit, a professional woman wrestler and victim of the murder-suicide by her husband, professional wrestler Christopher Benoit, by publishing allegedly unauthorized nude and semi-nude photographs of her in conjunction with an article concerning her recent murder.

Twenty years ago, Ms. Benoit posed for the photographs in question, but later asked the photographer to destroy them. In March, 2008, Hustler Magazine printed the photographs alongside an article regarding Ms. Benoit’s murder. Maureen Toffoloni sued LFP Publishing Group, publisher of Hustler Magazine, on behalf of her deceased daughter, Nancy Benoit.

Georgia’s common law right of publicity protects against “the appropriation of another’s name and likeness . . . without consent and for the financial gain of the appropriator.” To assert a prima facie case for a violation of the right to publicity, a plaintiff must assert (1) a use of the owner’s likeness or image; (2) used for the appropriator’s commercial use or financial gain; and (3) done without the consent of the owner of the right. However, Georgia’s right of publicity does not extend where the use is “authorized as an exercise of freedom of the press.”

This case hinged on whether the photograph was published strictly for Hustler’s commercial use. The court dismissed the case, holding that even an “offensive and distasteful” photograph published alongside a news article will not be considered mere commercial benefit if the article discussed a legitimate matter of public concern. Ms. Benoit’s death was found to be a legitimate matter of public interest and concern; therefore, the photographs did not violate her right of publicity.