Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, June 26, 2006

California Appellate Court Affirms Denial of Motion to Strike Plaintiff's Missappropriation Case in Playboy Photo Case

A California appeals court has denied Playboy Entertainment Group's request to overturn a lower court's decision not to strike a plaintiff's amended complaint against the company for misappropriation, common law misappropriation, false light, fraud, unjust enrichment, and quantum meruit. PEG claims that the plaintiff's (Jennifer Whitney)'s claims "arise out of Playboy's exercise of its free speech rights on a public issue; (2) Whitney cannot meet her burden of establishing a probability of prevailing...and (3) Playboy is entitled to its attorney fees and costs under Civil Code section 3344."

The appellate court recounted the facts. "In 2001, Whitney was hired by Playboy to dance and serve drinks...Events at the Playboy Mansion were private...Playboy strictly forbade photography, filming, or recording inside the...Mansion....No one was allowed to record events for publication or sale....In preparation for the subject party, Whitney and other models were painted in the gym area... Whitney was openly videotaped while being painted while being painted....She was also given a release form to sign. Whitney did not sign the release and later threw it into a trash can....Playboy subsequently produced two videotapes for sale, entitled "Playboy Mansion Parties, Behind the Scenes," and "Playboy Mansion Parties, Body Painting." Whitney's picture appeared twice on the front cover of one videotape box and and once on the other videotape box. Throughout the videos, she appeared nude and in different stages of having paint applied to her body. The videos also contained scenes of women masturbating, kissing, and undressing each other at a different party, filmed on a different night. Playboy filed a motion to strike...In support...Playboy...attached the deposition of a Playboy employee who stated that on the night of the party, he gave the models, including Whitney, a release to sign, which she did. He stated that the cameraman explained to the models that they were giving Playboy "the right to show you on camera." Playboy also cited Whitney's deposition testimony in which she stated that she "supposed," but was not sure, that the paper she was handed was a release....This appeal followed."  

The court analyzed whether Playboy had made a showing on the issues of whether Whitney was a public figure and of whether the matter involved was one of public concern.

"At issue here is whether the videos included conduct in further of the exercise of the constitutional right of petition or the constitutional right of free speech with a public issue or an issue ofpublic interest....Playboy contents that the videos were protected free speech...While Whitney concedes that the videotapes were protected free speech, we agree with her argument that the videos were not created in connection with a public issue or an issue of public interest as required for protection under section 425.16, subdivision (e(4).... Whitney herself was not a public figure or closely connected with those who are well known.... Whitney's agreement to dance at a private party or to be photographed with Mr. Hefner for what she believed was for private use, does not make her a public figure..We disagree with Playboy that Mr. Hefner's activities or parties...involve a topic of widespread public interest....Public interest does not equate with mere curiosity. "

The case is Whitney v. Playboy Entertainment Group, B182230. Read the entire ruling here.

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