Aug 16 (Reuters) - Hustler Inc had no right to publish the photograph of an Ohio TV news anchor dancing in a wet T-shirt contest without her permission, a federal appeals court ruled on Thursday.
The Cincinnati-based 6th U.S. Court of Appeals rejected the pornography publisher’s argument that its use of the image was protected under the First Amendment.
Catherine Bosley, then 37 and a news anchor for a CBS television affiliate in Ohio, was competing in a wet T-shirt contest while on vacation in Florida in 2003 when an amateur photographer snapped pictures of her without her knowledge. She lost her job after the images surfaced on the Internet.
Bosley and her husband negotiated with the photographer for rights to the photos, which they registered with the U.S. Copyright Office in 2004. Two years later, Hustler Magazine published one of the revealing photos in its “Hot News Babes” series, and Bosley sued.
A jury awarded Bosley $135,000 for copyright infringement as well as attorney’s fees.
On appeal, Hustler and its parent company, Larry Flynt Publications, argued that they had relied on their lawyer’s advice that they could publish the image under the so-called “fair use” exception in copyright law that covers news reporting, criticism and commentary.
But a three-judge panel of the 6th Circuit rejected the argument, finding that Hustler’s primary motivation was to make money off the image.
“The jury could have reasonably concluded that Hustler was selling a picture, not a story,” Judge Eric Clay wrote for the panel.
Timothy Murphy, a lawyer for Hustler at Lipsitz Green Scime Cambria, did not immediately respond to a request for comment.
Catherine Bosley’s lawyer, Andrew Kabat of Haber Polk Kabat, welcomed the decision and praised his client for pursuing the years-long legal fight.
Bosley is now a news anchor for WOIO Channel 19, a CBS affiliate in Cleveland.