Friday, March 10, 2006

How Jane could cost Playboy big

By now you all know that Playboy's March cover girl, Jessica Alba, neither posed for the cover nor consented to have her bikini-clad image placed there. Alba flat-out refused to pose for Playboy, so the magazine instead finagled a publicity still from her upcoming "Into The Blue" and smacked it on the cover, complete with the bunny watermark over one bikini'd breast. Alba hit the roof and has threatened to sue Playboy for the "immeasurable harm" caused to her reputation; a February 23rd demand letter from her lawyers demands that Playboy cease distribution immediately and pay Alba an unspecified "monetary settlement" for its "unauthorized and tortious" use of her image. Needless to say, Playboy has not done so.

I read the letter*, and, they seem to have a pretty damn good case: according to Alba, Playboy offered her money to pose, she turned them down, so they obtained a saucy image of her by a ruse to her studio, Columbia Pictures. Despite Playboy's lame assertions to the contrary, it's a pretty decent assumption that a woman on the cover of Playboy appears nude or semi-nude inside (epsecially when it's encased in plastic, a la a certain issue of Vanity Fair). The caselaw seems pretty clear, too: Playboy clearly stands to benefit from Alba's "marketable celebrity identity value" (they branded her with a bunny, for God's sake).

What I find interesting about the letter is this: Alba's lawyers never actually describe exactly what her reputation is that it will be "immeasurably harmed" by the association with Playboy. I was expecting a long, florid paragraph about Alba's sterling and wholesome reputation as a role model to young girls, etc. etc. But then I realized that would open the door to Playboy to point out that she's played a stripper, appeared on the cover of Maxim (with quotes like "The scripts I get are always for the whore, or the motorcycle chick in leather, or the horny maid"), attended the MTV Movie Awards in a see-through dress, and gives interviews like this (on the phone to GQ: "I just wanted you to know that I'm half-naked right now and eating chocolate cake)."

Playboy could well make the argument that it doesn't owe her squat for so-called "harm" to a reputation that's already pretty sexed up (as one blogger wrote, "what reputation?" NB don't shoot the messenger here, kids, I'm just pointing out what Playboy might feasibly argue). What's an unwitting Playboy cover girl to do?

Prove that refusing to post nude is, in fact, part of her reputation. And this is where Jane comes in (yes, you'll read my buried lede and like it). In the October 2005 issue (in which she appears consensually on the cover), Alba is described as someone who "famously turns down nude scenes" and was actually "mortified" about her MTV Awards dress. But here's the kicker from the interview:
"Would you do a nude scene if someone offered you crazy amounts of money?"
She shakes her head. "So? A whore can do that."
That quote is a big ol' callout on page 83, emphasized so all of Jane's 700,000+ readers can see it: Jessica Alba, on the record, saying she'd never go nude and isn't a whore. That sets up a pretty distinct reputational line that an implication of nude posing by Playboy would surely cross. Which opens up a world of possibility for a "monetary settlement" for "irreparable harm."

Now this is, of course, just speculation on my part; so far all we have is Alba's legal letter and the fact that Playboy is still on the racks (er, no pun intended). But I do think it's interesting that it's a subject about which the letter was silent, and one which hasn't really been explored (at least from what I've seen, but it's a big world out there). I for one hope Alba kicks Playboy's ass and extracts the maximum amount from their sneaky, image-appropriating asses — Playboy shouldn't have the right to smear its smutty self all over a woman without her consent, especially when she's out-and-out said no. To the extent that my back issue of Jane can help her do so, so much the better.

*Yes, I'm a lawyer, but if you're Jessica Alba, I wouldn't rely on me.

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