Citation Edit

Bosley v., 310 F.Supp.2d 914 (N.D. Ohio 2004) (full-text), stayed pending decision on appeal, 2004 WL 2169179 (6th Cir. Apr. 21, 2004), appeal discontinued (May 20, 2004).

Factual Background Edit

Catherine Bosley used to be a television news anchor in Youngstown, Ohio. Her job made her a “regional celebrity.” Then Bosley went on vacation and did something that made her a nationwide — perhaps worldwide — celebrity. She participated in a wet t-shirt contest in a Florida nightclub, and stripped completely nude, right in front of a video camera. In short order, the videotape and still images taken from it, appeared on the Internet.

As a result, she said, she was asked to resign from her news job. She did, and thereafter filed a right of publicity lawsuit against a website operator and others who were selling DVDs and videos of her performance.

Trial Court Proceedings Edit

At first, Bosley’s lawsuit was successful. Federal District Judge James Gwin granted her motion for a preliminary injunction. But her success didn’t last long. Bosley’s lawsuit raises several significant issues which were dealt with quite carefully by Judge Gwin. The judge ruled that Bosley was likely to succeed on the merits of her right of publicity claim, under common law and under the statutes of Florida and Ohio. She was, he explained, because she asserted that the defendants sold “images of her performance” and also used those images to promote their sale of “other sexually-related goods.” The judge found that these uses were for a “commercial purpose.”

Although there is a “public affairs exception” to the right of publicity, Judge Gwin ruled that the exception did not apply to the defendants’ uses of Bosley’s image, because those uses had nothing to do with news or public affairs.

The judge also rejected the defendants’ First Amendment defense, saying that because the defendants’ uses of Bosley’s image did not have “artistic expression” or “significant editorial comments,” her case was different from other cases that had recognized a First Amendment defense to right of publicity claims. He held that an injunction would not be an unconstitutional prior restraint, because that doctrine is not applicable to commercial speech or where “proprietary interests are at stake, such as infringements of copyright or trademark.”

Finally, Judge Gwin was not persuaded that Bosley had consented to the use of her image — at least not in a way that would preclude her claim. The defendants showed that Bosley stripped naked within feet of the “relatively large” camera that was used to tape her performance, and that she was looking directly into the camera’s lens as she did so. The defendants argued that this amounted to implied consent. But Judge Gwin ruled that implied consent is not a defense under Florida law, because that state’s statute requires “express written or oral consent.”

Appellate Court Proceedings Edit

Three weeks after the preliminary injunction was issued, the Court of Appeals stayed the injunction, pending a decision on the merits of the defendants’ appeal. In a short, unpublished order, the Court of Appeals stayed the injunction. It did so, it said, because it there is a “strong likelihood . . . that the . . . preliminary injunction is a prior restraint on speech in violation of the First Amendment.” The appeal was discontinued shortly thereafter.

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