Jessica Alba, Playboy Covers, and Nuisance Lawsuits

I was going to let the whole Jessica Alba vs. Playboy fiasco go by without comment, since it is not directly related to the topics we ususally cover here. However, since Alba has starred in a couple of high-profile fantasy films (i.e., SIN CITY and FANTASTIC FOUR), and since I have a few things to say on the subject, I thought I'd jump in, even though I am arriving a week late to the party.

The first point I want to make is that it always amazes me when people threaten to initiate law suits that have no real basis in law. So something happens that you don't like: you complain by writing a letter to the editor or putting out a press release; you don't pretend you plan taking anyone to court, unless there's a legitimate case.

Without a legitimate case, it's just a thinly veiled attempt at blackmail -- you threaten the other party with the legal machinery of the court system and hope they back down from fear of fighting a lawsuit, possibly because they don't know the law or possibly because they cannot afford to fight, even if they are sure they would win.

When I used to work at Cinefantastique, this kind of thing would happen from time to time. In one case, the magazine printed an article detailing Dan O'Bannon's critical comments about TOTAL RECALL (the screenwriter was not pleased with the changes made to the story by the time the film reached the screen). O'Bannon made his comments at a screening of the film, open to the public at the Norris Theatre on the campus of the University of Southern California, and CFQ reported on them, because they were of interest to its readers. Yet O'Bannon had his lawyer send a letter to the magazine, pretending that CFQ had violated his rights by infringing on the copyright of a "speech" he had given. The letter demanded that O'Bannon be recompensed for the use of his speech and that the issue be removed from the stands; otherwise, legal action would follow.

Think about that legal "precedent" for a second. Celebrities, politicians, and other public figures continuously make appearances wherein they make comments and/or give speeches, and the press reports on them. Are the New York Times and the Washington Post commiting plagiarism or everytime they print statements made by candidates on the campaign trail? Is Entertaiment Weekly or the Los Angeles Times Calendar section infringing on copyright when they quote acceptance speeches made at the Oscars?

In a word, the legal threat was ridiculous, because it was based on an argument that would silence the first amendment rights of the press.

On a latter occasion, while I was West Coast editor, I did an issue that included a retrospective look at the films of American International Pictures, a low-budget exploitation company that churned out lots of sci-fi and horror flicks in the 1950s and 1960s. Shortly after the issue hit the stands, we received a letter from the lawyers of the widow of one of AIP's two founders. Basically, the letter stated that all of the photographs we used to illustrate the piece were the widow's copyrighted property, and we had to pay her for them or remove the issues from the stands.

Again, the legal argument was so ridiculous that you didn't need a lawyer to tell you so. Movie studios release tons of publicity photos to publications -- they give them away for free, so that magazines and newspapers will print them and thus help to publicize the studio product. That's just the way things work. If journalistic outlets were going to pay for photographs, they would pay their own photographers to shoot some exclusive material; they certainly would not pay to use photos that were appearing everywhere else.

In both of these cases, CFQ's publisher-editor, the late Frederick S. Clarke, had a perfect solution to these kind of legal threats: he ignored them, and nothing every happened.

Which brings me, in a roundabout way, to the Alba "case"...

As you may have heard, Playboy magazine conducted a poll that placed the actress at the top of the list of twenty-five sexy celebrities. They asked her to pose for a cover shot, and she declined, so the magazine ran a publicity photo from her recent film INTO THE BLUE.

Alba had the firm of Lavely & Singer send a letter to the magazine demanding that the issue be removed from the stands. The letter also demanded a "monetary settlement" in exchange for the "immeasurable harm" done to the actress's career.

It's hard to imagine what this "immeasurable harm" might be. Apparently, it's supposed to have something to do with misleading readers into thinking she appears nude inside (which of course she does not). One should point out that celebrities from Barbra Streisand to Clint Eastwood to Raquel Welch have appeared on the cover of Playboy without appearing nude inside, and it doesn't seem to have harmed their careers in the least.

So, if we reduce this storm to its essentials, we see that it is really a tempest in a teapot: Alba doesn't want to pose for Playboy so that magazine uses a publicity photo that shows how she appeared in a recent film; she doesn't want her photo on the cover, so she threatens to sue if the magazine does not meet certain demands. The chance of the demands being met is zero, and the chances of an actual lawsuit are just about zero as well (there's a chance they could file, but little or no chance they could prevail). This ruse might work against a little guy without the resources to fight back (better to pay a settlement than risk being bankrupt by legal fees) but not against a major coporation like Playboy.

And so what happens? The Smoking Gun website gets ahold of a copy of the legal letter and posts it here. And supposedly legitimate news outlets like CNN and CBS run short items on the story. Okay, I'll admit that the story has enough sex appeal that it's hard to resist (after all, I'm writing about it), but that doesn't make it a real story. The CBS post basically presents the accusations without bothering to point out how legally weak they are. The CNN is slightly better, pointing out a number of celebrities who have graced the cover without appearing nude, but it still ignores the legal issues -- or lack of legal issues.

The bottom line is that, when you are a celebrity, magazines and websites are going to print your picture, and you can't always choose where your picture does or does not appear. Much of Jessica Alba's popularity is attributable to her sex appeal, but for some reason she thinks that appearing in or on Playboy is bad for her career. It's fine if she doesn't want to cooperate with the magazine, but it's bizarre to think that she wants to stop the magazine from even using a photograph -- not some paparazi picture taken without her permission, but a sanctioned publicity photograph that was taken for the express purpose of interesting magazines in printing it.

Of course, the only result of Alba's legal manuver has been to generate publicity for the issue, which will probably go on to sell many more copies than it would have otherwise. If I were given to conspiracy theories, I might almost think the whole thing was some kind of publicity ploy...