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American Morning

'Penthouse' Magazine Offering 'Heartfelt' Apologies for Topless Tiff

Aired May 08, 2002 - 09:49   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PAULA ZAHN, CNN ANCHOR: "Penthouse" magazine is offering "heartfelt" apologies for the topless tiff over pictures in its June issue. The magazine originally claimed they were nude photos of a celebrity tennis diva. This is not Anna Kournikova, but now Penthouse admits the subject of the steamy snapshots wasn't her. The pictures are actually of fashion heiress Judith Soltesz-Benetton. And Kournikova's people denied the claim from the very beginning. As we said, Penthouse says it deeply regrets the "unintentional error" and is apologizing to both women. Benetton, for her part, is suing for $10 million in damages. For now, a judge has ordered "Penthouse" to remove the issue from newsstands and the Internet.

To discuss the legal ramifications of all this, joining us again is legal analyst Tim Green.

Welcome back. Thanks for hanging around.

TIM GREEN, LEGAL ANALYST: Great to be here. This is an interesting case.

ZAHN: Help us understand what rights a public person has verses the private person.

GREEN: First of all I got to qualify, this is a very nebulous area of law. I spent a lot of hours last night with different colleagues, including Terry Steinberg, who stayed up until 12:30 to help me come up with a memo on this. But if you are a private individual, you have a greater expectation of privacy than a public figure. If you're a public figure, you're reasonable expectation of privacy is next to zero.

So if you're caught in a place you know sunbathing without your clothes on, that can appear in a magazine and you really don't have a cause of action.

ZAHN: So at this point, the Bennetton heiress may have a better case against Penthouse than Anna Kournikova?

GREEN: Yes, Ms. Benetton is going to have an action for invasion of privacy. Now, Kournikova's action would be a right of publicity or a misappropriation of her likeness for commercial purposes. But, you know, it varies state to state, New York falling most heavily in favor of First Amendment. Other states like Tennessee a little more draconian, falling more in favor of the individual's right to privacy.

But you know, there are a lot of instances, a lot cases where celebrities, you know. their likeness are used, and if there's even a thin connection to some editorial value, then their found to have no cause, or they get no damages. Now that means you know, for "Penthouse" it is who is reading it.

ZAHN: The problem "Penthouse" having some financial problems, so one wonders what these two lawsuits might ultimately deal the company?

GREEN: Yes, they are within $100,000 dollars or so of being bankrupt anyway. And the action by Miss Benetton. I don't think Anna Kournikova will have any damages, especially in New York State, maybe in other states. But any kind of settlement of any kind of substantial could just put "Penthouse" right under, which wouldn't be a bad thing.

ZAHN: So tell us a little bit about the press. When Dustin Hoffman took on "L.A. Magazine," what did they do? They digitally altered a picture of his promotion for "Tootsie." And what happened in that case?

GREEN: Well, in that case, his contention was that his right of publication was violated, that the magazine used his likeness and they put it on -- there you see a picture of it. They put it on this body, which was not his, and it's -- I guess he had Ralph Lauren shoes on or something like that. His contention was that his likeness was used to advertise Ralph Lauren. And in the lower court, he was awarded $3 million in damages. However, at the appellate level it was overturned.

ZAHN: On what basis?

GREEN: On the contention that this was one of many other photos, and it was talking about, you know, celebrities and their fashion, and so it was not so much newsworthy, but not commercial.

Look, you have to way editorial value versus commercial value. So in an editorial value, at one extreme end is, you know, a news event, something happen out on Fifth Avenue. On the other hand, there's the use of commercial -- the commercial use of someone's likeness, where if you put Dustin Hoffman's face on a T-shirt and sold it, he would have an...

ZAHN: OK, so that would have been a better case for him, as opposed to this picture being digitally altered. Now what about the issue on the Internet of the use of these pictures. Is it any different than being published in a magazine?

GREEN: It really isn't, and there was a case here again in New York, where Howard Stern sued someone, saying that his likeness was being used on the Internet. And it was -- he contended it was misappropriated. But again, it was some -- it was even in an advertisement, but there was a connection the court found to the -- you know, the public interest of knowing what this Web site was going to be about. It was going to be a public debate, this Web site, for Howard Stern's political candidacy. So again, when you're a public figure, you're really not going to have much of a chance, especially in New York State.

ZAHN: And if you're a private person that wants to bathe naked.

GREEN: Private person, but different cause of action, Paula.

ZAHN: You better have a better case.

GREEN: Yes.

ZAHN: So what can be learned from this very murky part of the law. I mean, you stayed up last night with a bunch of legal experts, trying to make this less blurry.

GREEN: I think the big thing for someone like you or someone like me, you know, you better be careful, because the courts don't recognize an expectation of privacy. Once you're a public figure, a political figure, a sports figure, someone on television. The courts say that you are voluntarily offering yourself up to the public. You're pretty much fair game. As a private person, you have a little bit more protection.

ZAHN: And as the cynics have argued over the last couple of days, no matter whether "Penthouse" was right or wrong on this, when it comes to Anna Kournikova, the fact is this will generate a lot of publicity for her she never had. That's a pretty cynical view, isn't it?

GREEN: A lot of publicity. But, you know, we live in cynical world.

Not you and I, but everyone else.

ZAHN: Thanks, Tim. Good to see you. Look forward to having you back.

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