Jose Solano, Jr. v. Playgirl, Inc.
2002 Daily Journal DAR 6636, 292 F.3d 1078, 2002 Cal. Daily Op. Serv. 5227 (2002)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A publication can be held liable for false light invasion of privacy if the totality of its presentation, including images and headlines, creates a foreseeably false and offensive impression about a public figure, and the publisher acted with actual malice.
Facts:
- Jose Solano, Jr. was an actor on the television program 'Baywatch.'
- The January 1999 issue of Playgirl magazine, a publication known for featuring nude photographs of men, displayed a prominent, shirtless photograph of Solano on its cover.
- The cover included headlines such as 'Primetime’s Sexy Young Stars Exposed' and '12 Sizzling Centerfolds Ready to Score With You.'
- Solano did not consent to his photograph being used on the cover and had previously declined an offer to appear in the magazine.
- Solano's only appearance inside the magazine was a small, fully-clothed, head-and-shoulders photograph accompanying a brief profile.
- Playgirl magazine was sold to consumers sealed in plastic wrap, preventing inspection of its contents before purchase.
Procedural Posture:
- Jose Solano, Jr. filed suit against Playgirl, Inc. in California Superior Court (a state court of first instance) for false light invasion of privacy and misappropriation of likeness.
- Playgirl removed the case to the United States District Court for the Central District of California (a federal trial court).
- The district court granted Playgirl's motion for summary judgment, finding that Solano had failed to establish a false impression or actual malice.
- The district court also awarded attorney's fees and costs to Playgirl.
- Solano, as the appellant, appealed the district court's grant of summary judgment to the United States Court of Appeals for the Ninth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a magazine cover that combines a public figure's photograph with suggestive headlines, creating the false impression that he appears nude inside, give rise to claims for false light invasion of privacy and misappropriation of likeness if there is evidence the publisher acted with actual malice?
Opinions:
Majority - Fisher, J.
Yes. A jury could reasonably find that the magazine cover, through its combination of imagery and headlines, created a false impression that Solano appeared nude inside, and there is sufficient evidence to create a triable issue of fact as to whether Playgirl acted with actual malice. The court's reasoning focused on two main areas: the creation of a false impression and the existence of actual malice. The court determined that the 'totality of the presentation'—Solano's shirtless photo, the suggestive headlines ('Exposed,' 'Sizzling Centerfolds'), and the magazine's reputation for nudity—could reasonably lead a consumer to believe Solano posed nude inside. This false impression was not cured by the non-explicit article 21 pages into the magazine, especially because the magazine was sold in sealed plastic wrap, making the cover the primary basis for a purchase decision. Critically, the court found a genuine issue of material fact regarding 'actual malice.' Deposition testimony revealed that Playgirl's senior management directed staff to 'sex up' the magazine to imply more nudity than existed and that staff members raised concerns that the cover would falsely imply Solano was nude inside, but these concerns were dismissed. This evidence is sufficient for a jury to infer that Playgirl published the cover with knowledge of its false implication or with reckless disregard for the truth. Therefore, the newsworthiness defense to the misappropriation claims also fails at the summary judgment stage, as the First Amendment does not protect knowing or reckless falsehoods.
Analysis:
This case clarifies that liability for false light invasion of privacy can arise from implication and innuendo, not just explicit falsehoods. The court's focus on the 'totality of the presentation' serves as a warning to publishers that provocative headlines combined with images cannot create a misleading 'gestalt' impression to sell publications. The decision significantly impacts the 'actual malice' standard by demonstrating that internal editorial discussions, even without a direct admission of wrongdoing, can provide sufficient circumstantial evidence for a plaintiff to survive summary judgment. This precedent makes it more difficult for publishers to dismiss such claims early in litigation, forcing them to defend their editorial choices and motives before a jury.
