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.