Florida Student Sues Over Shirtless “Lustful” Picture Published in Gay Magazine

A University of Central Florida student Benjamin Massing wanted exposure as a model when he posed shirtless in a photo. He got a lot more exposure than he expected, but it was not where he expected it. Genre Magazine, a publication geared toward a readership, published the photo and Massing instantly became a gay pin-up boy. He is now suing.

This could make for an interesting case. While Massing says the photo shows him in a lustful, promiscuous position, it was clearly his intention. That would make for a novel false light claim. It is the magazine rather than the photo that he could claim is causing the false light. There is also defamation by implying that he is gay. Common law tort has long recognized a per se category for moral or sexual turpitude. However, the view of being gay as immoral and per se defamatory is becoming rather archaic. The most obvious is the commercial appropriation of name or likeness as well as trademark infringement.

I am still trying to get a copy of the complaint, but reports describe it as an invasion of privacy action, which would be interesting since he admits that he posted the pictures, including one in his underwear. He is suing in New York.

Massing insists that the magazine published the picture without his consent. He says that his image is now being passed around gay chat rooms.

A website is running a statement that it attributes to Massing: “Numerous media outlets focused on the fact that the images appear in a publication geared toward the gay community. Based upon these reports, some have mischaracterized me as homophobic, which could not be further from the truth.” (unconfirmed)
For the full story, click here and here.

6 thoughts on “Florida Student Sues Over Shirtless “Lustful” Picture Published in Gay Magazine”

  1. JT:

    I think indeed he can make a claim for the tort of “false light” invasion of privacy if he can show New York Times v. Sullivan malice in the choice of depiction in the gay magazine. The problem may be as you say that mere depiction in a gay magazine may not, in and of itself, subject the reasonable person to humiliation and embarrassment. As we know, it’s not about reputation in a false light case as in the closely related defamation torts (libel & lander), but rather injured feelings and embarrassment. It’s a very Victorian mindset indeed to reach that conclusion that inclusion in the periodical is per se offensive, but the Complaint alleges vulgar and lewd advertisements surrounding the photo, so maybe a threshold case can be presented. Tough case, but I do like it!

  2. Stuff like this is supposed to happen AFTER one becomes famous….he’s off to a rough start

  3. I’m just curious if he included some compensation for stealing his soul in the total amount he’s suing for. The going price for a soul used to be all the knowledge in the world, but I think it’s gone down since then.

  4. Prof: Here’s a copy of the complaint: http://www.queerty.com/wp/docs/2008/10/massinglawsuit.pdf

    “. . . invasion of privacy and defamation arising out of the unauthorized use, sell, distribution, and publication of photographs of Plaintiff”

    “Page sixty-six . . . featured a full eight-and-a-half by eleven (8 ½ X 11) photograph of Plaintiff, BENJAMIN MASSING, posed in a cruel and vulgar way . . . [and] was intentionally altered, cropped, and/or doctored to make Plaintiff, BENJAMIN MASSING, appear nude and/or to accentuate his semi-nudity with his hand posed in an objectionable manner”

    There’s a false light claim in there too, saying they made him look like he posed in a nude or objectionable manner and that he was gay, causing pain and suffering, mental anguish, humiliation, etc.

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