CLEVELAND, Oh.—In 2003, Catherine Bosley (real name Catherine Balsly), a news anchor for WKBN-TV in Youngstown, Ohio, entered a wet t-shirt contest while vacationing in Florida, and before the evening was over, not only had her tits been visible through her wet t-shirt, but she actually shucked all her clothes and danced naked on the bar. The event was captured on film by an amateur photographer named Fontran Durocher and posted to his website lenshead.com.
The event caused Bosley to lose her job with the station, and in order to head off further employment difficulties and personal embarassment about the photos, Bosley and her husband Richard Brown bought all rights to the photos from Durocher and promptly copyrighted them with the intention that they should never again be made public. (However, the photos appear to be widely available on the internet.)
Fast-forward to August, 2005, when Bosley's nude performance came to the attention of the editors of Hustler, which runs a monthly feature called "Hot News Babes," which urges readers to submit photos of good-looking newswomen, and whichever photo is published in any particular month nets the submitter a prize. In this case, however, the submitter of Bosley's name didn't have a photo of her, but told Hustler's editors that such photos existed on the Web, and sure enough, Hustler's art department tracked down a couple, including the fully nude one, which it published in the February, 2006 issue.
When Bosley learned of the photo's publication, she was incensed... and promptly sued LFP, Inc., Hustler's publisher, for among other things violation of her copyright to the photograph. In fact, that alleged copyright violation was the only issue to finally come before a federal district court jury, and in an opinion issued today, a three-judge panel of the Sixth Circuit Court of Appeals affirmed the jury's verdict awarding Bosley $135,000 in damages as well as more than $133,000 in attorney's fees.
Although in several pleadings, Hustler admitted that it had published the photo and that it was copyrighted, but that the magazine had been unable to locate the copyright holder, LFP's attorneys argued that the publication of the photo was "fair use" and that therefore, it was not liable for damages. However, the Sixth Circuit looked at the four elements required for a "fair use" defense in the applicable statute, 17 U.S.C. 107—the "purpose and character of the use"; "nature of the copyrighted work"; the amount of copyrighted material used versus the work as a whole; and the effect of the use on the copyrighted work's potential market for it or its value—and found that Hustler's commercial use of the entire photo left that defense wanting.
The opinion goes on to deal with various motions from both sides dealing with the impartiality of the evidence and arguments to the jury, as well as whether the income Hustler derives from the sale of any particular issue of the magazine is a valid criterion for assessing damages, but in the end, the Sixth Circuit upheld the district court's verdict in its entirety.
The Sixth Circuit's opinion can be found here.
