False Light and the Photogenic Flasher

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False Light and the Photogenic Flasher

Apr 14, 2013

Photogenic Flasher

The case of the photogenic flasher (Barnhart vs. Paisano Publications) addressed the regrets of Tonya Barnhart. Ms. Barnhart was a 29-year-old retail clerk who went to Toop's Troops Second Annual Pig Roast, a fundraising event attended by motorcycle enthusiasts. As the night wore on and the alcohol flowed freely, Tonya Barnhart traded her dignity for a string of plastic beads.

Yes friends, Tonya Barnhart was swept up by the Mardi Gras atmosphere of the pig roast and, in a moment of exuberance, flashed her breasts. In the crowd was Bill Cromwell, a photographer who had been taking pictures at the event. Cromwell snapped a photo of Barnhart in her exposed state. Later he submitted the picture to Easyriders magazine.

Easyriders published the picture in the "In the Wind" section of the magazine - the portion of the magazine devoted to illustrating the "exhilaration of the motorcycling life style." Below the photo was the caption "Pegging the Fun Meter."

Ms. Barnhart sued Easyriders for false light invasion of privacy. She claimed that the photograph gave the impression that she is the type of person who consents to having a topless photo published in Easyriders magazine.

The Court held that publishing, in a soft-core men's magazine, a photo of a woman who voluntarily flashed her breasts does not place her in a false light. The lesson: when girls go wild, the right of privacy simply goes away.

In future posts I will discuss the right of publicity.

Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. The class covers First Amendment issues as well as copyright, defamation and privacy.

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