Friday, June 14, 2002
Ninth Circuit Revives Actor’s Claim That Use of His Photo on ‘Playgirl’ Cover Places Him in False Light
By a MetNews Staff Writer
An actor who starred on the “Baywatch” television series is entitled to a trial on his claim that Playgirl Magazine portrayed him in a false light on the cover of its January 1999 issue, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A jury must decide whether statements on the cover and inside the magazine were intended to mislead readers into believing that Jose Solano Jr. had posed nude, Judge Raymond C. Fisher said. Judges Harry Pregerson and Richard Tallman agreed.
Solano claims his reputation was damaged by the implication that he posed nude for a “pornographic” magazine, that he felt humiliated, and that several possible television deals dried up after the issue appeared. He insists that he has never posed nude, and never would.
The issue in question contained two stock photos of Solano, one on the cover and one on the inside. The publisher says the cover image of the actor in his Baywatch red shorts was used to promote the magazine’s “lusty lineup” of “TV Guys,” and denies it intended to convey any impression that Solano was one of the numerous men whose nude photos Playgirl has published.
The cover photo extended into the Playboy logo across the top of the page, with a caption to the right of the picture reading “Baywatch’s Best Body Jose Solano.” Above the Playgirl logo appears the headline “”Primetime’s Sexy Young Stars Exposed’ and below the logo is another headline reading “12 Sizzling Centerfolds Ready to Score With You.”
Solano claims the juxtaposition of his photo with the other contents of the cover was a deliberate attempt to cause readers to think they would find photos of him unclad inside.
The inside photo of Solano appeared next to a brief profile of the actor, part of a feature titled “TV Guys - Primetime’s sexy young stars make for one steamy season.” It described his experiences in Operation Desert Storm and as a talented youth soccer player before landing a role on what was at one time the most popular television show in the world.
U.S. District Judge Dickran Tevrizian of the Central District of California found that Solano—who had a recurring role on the show for two years before he left, claiming that he was afraid of being typecast - is a public figure who cannot assert invasion-of-privacy claims.
Granting Playgirl’s motion for summary judgment, Tevrizian said the First Amendment does not allow a public figure to obtain redress merely because he was “unhappy and embarrassed.” Solano, he said, could not make the requisite showing of actual malice.
Fisher, however, concluded that a jury - viewing the cover in light of public knowledge that the magazine normally features “sexually suggestive nude pictures of men” - could find that Playgirl created a false impression of Solano and did so knowingly.
He cited prior rulings in favor of actor/director Clint Eastwood and “hapless houseguest” Kato Kaelin. Eastwood sued the National Enquirer over a headline he claimed created the false impression he had given the tabloid an interview, while the Globe’s headline “COPS THINK KATO DID IT” was alleged by Kaelin to create the impression he was a suspect in the murders for which Simpson was acquitted, even though the article inside referred only to allegations he had lied at the trial.
With respect to the issue of malice, Fisher cited deposition testimony from an associate editor, suggesting that the language of the cover was deliberately chosen to tease readers into thinking that nude photos of Solano and other young television stars were inside.
While there was other, conflicting testimony regarding the magazine’s internal discussions and decisionmaking process, Fisher said, the conflicts must be resolved at trial.
The jurist went on to conclude that Solano had presented evidence of damages. While the court was making “no predictions” about Solano’s ability to establish damages at trial, Fisher explained, several celebrities have won jury awards that were upheld on appeal based on the creation of negative public impressions.
He cited the Eastwood case, along with those of singer Tom Waits—who won $75,000 from the maker of Doritos after it used a sound-alike to record a commercial, creating the impression that Waits had violated his practice of refusing all advertising offers—and Carol Burnett, who sued the Enquirer over a story that portrayed her as having been drunk in public.
The case, Solano v. Playgirl, Inc., 01-55443, was argued by Kent Raygor of Sheppard, Mullin, Richter & Hampton for Playgirl and Jonathan Anschell of White O’Connor Curry Gatti & Avanzado for Solano.
Copyright 2002, Metropolitan News Company