Personal Injury & Torts
Jun. 15, 2002
Teasing Cover Constitutes Malice
SAN FRANCISCO - A bare-chested photo of former "Baywatch" star Jose Solano Jr. on the cover of Playgirl Magazine, along with misleading headlines suggesting he posed nude for a centerfold, prompted a federal appeals court Thursday to reinstate his suit against the magazine.
Solano raised a genuine issue as to whether the cover alone created a false impression that should be sent to a jury, the 9th U.S. Circuit Court of Appeals ruled. Solano v. Playgirl, Inc., 2002 DJDAR 6636.
The magazine, known for its nude photographs of men "emphasizing their genitalia," used the false impression of Solano in an effort to "sex up" the magazine and boost sales, which supports the argument that the magazine acted with actual malice, wrote Judge Raymond Fisher.
Solano, who worked on "Baywatch" from 1996 to 1999, appeared shirtless and wearing red trunks on the magazine cover in January 1999 along with headlines promising "Hot Celebrity Buns," and "12 Sizzling Centerfolds Ready to Score with You."
Solano did not pose for the magazine, and his only appearance inside was a quarter-page photograph of him fully dressed with a brief profile and mention of his "Baywatch" character.
The ruling was the first on issues of "false light" claims since the court's decision last year in a suit by actor Dustin Hoffman. In that case, the court barred Hoffman from suing over computer-altered photos showing him as the cross-dressing star of "Tootsie" modeling new designer clothes.
In Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (2001), the court held that Capital Cities had not acted with malice and had made it clear that digital altering was used on original photos.
Fisher said Solano's case differed from Hoffman's because evidence suggests "Playgirl may have knowingly or recklessly used its cover to mislead readers about Solano's true state of dress in the magazine."
Thursday's ruling "clarifies the limited doctrine enunciated in Hoffman," said Solano's attorney, Kent R. Raygor, of Sheppard, Mullin, Richter & Hampton in Los Angeles.
"We're very pleased with the 9th Circuit's decision and very much looking forward to the trial," he said.
Playgirl's attorney, Jonathan H. Anschell, of White O'Connor Curry Gatti & Avanzado in Los Angeles, could not be reached for comment.
Solano originally filed suit in state court in Los Angeles but the magazine removed the case to federal court. U.S. District Judge Dickran Tevrizian dismissed the case, ruling the photograph did not create a false impression and that Solano, a public figure, could not show actual malice.
Although a showing of actual malice by clear and convincing evidence is difficult, the court said that during staff meetings Playgirl senior vice president Carmine Bellucci told the editorial staff to "sex up the magazine" to imply there was more nudity in it.
Some staffers expressed concern that readers would expect to see Solano as a centerfold. The magazine is sold in a clear plastic envelope so readers can't flip through it to see the contents, which could add to the misperception, according to the court.
Fisher cited deposition testimony by an editor who said she warned at the time, "Someone's going to think that he's naked in there."
Other staffers discounted that editor's fears at the time, court records show. Even so, "we believe Solano at this stage of the proceedings raises a genuine issue as to whether Playgirl's editorial staff produced the January 1999 cover knowing, or with reckless disregard of whether, Solano's bare-chested photograph and various suggestive headlines would falsely imply that he voluntarily posed for and appeared nude inside the magazine," said Fisher.
He was joined by Judges Harry Pregerson and Richard Tallman.
Solano alleged he was humiliated and suffered mental anguish as a result of the cover and that it suggested he was a "washed up" actor who had to sell himself to a nude magazine.
He also alleged he lost invitations to charity events and possible appearances on various television programs after the issue appeared, although he could not produce direct evidence of a job loss linked to the cover.
For the Record A story in published in the San Francisco Daily Journal on June 14, 2002 concerning a suit by Jose Solano Jr. against Playgirl magazine incorrectly attributed to Playgirl attorney Kent R. Raygor some comments made by Solano?s attorney, Jonathan H. Anschell of White O?Connor Curry Gatti & Avanzado of Los Angeles.
The Daily Journal regrets the error.
Pamela Mac Lean
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