The U.S. Court of Appeals for the Sixth Circuit April 21 granted a stay, pending appeal, of a federal district court's preliminary injunction, which barred commercial use of a former television news anchor's "wet T-shirt" images (Bosley v. WildWetT.com, 6th Cir., No. 04-3428, 4/21/04) (Media Law Case Alert, 5/7/04).

Catherine Bosley participated in a "wet T-shirt" contest in a Florida nightclub, while on vacation from her job at the CBS affiliate in Youngstown, Ohio. Photographs and videos of Bosley's performance were displayed on the Internet and sold by DreamGirlsVideos.com and others. Bosley sued the video production company, Dream Girls Inc., and various Web site operators, alleging violations of her rights of publicity and privacy. The U.S. District Court for the Northern District of Ohio enjoined the defendants from selling or promoting photographs or videos, and from using Bosley's image to promote the sale of goods or services (See NewsNotes, 4/20/04).

In quantifying the degree of First Amendment protection available to the defendants, the district court reasoned that defendants' sole purpose appeared to be the commercial exploitation of Bosley's celebrity status, and that the speech at issue lacked a creative component. Defendant Marvad Corp., d/b/a SexBrat.com, which, according to the district court, obtained a license to use the Bosley video, appealed the district court's order granting the preliminary injunction, and moved the Sixth Circuit to stay the injunction.
Higher Hurdle.

The Sixth Circuit granted the stay, finding that the defendant established the requisite likelihood of success in demonstrating that the order, as a prior restraint, violates the First Amendment. The court pointed out that the "'hurdle is substantially higher'" when attempting to justify such a restriction. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 24 Med.L.Rptr. 1385 (6th Cir. 1996). "Even if the defendant's website is viewed as purely commercial," the court observed, "some circuits have 'indicated that the requirement of procedural safeguards in the context of a prior restraint indeed applies to commercial speech.'" New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123, 26 Med.L.Rptr. 1301 (2d Cir. 1998).

The full text of Bosley v. WildWetT.com will be published in an upcoming issue of Media Law Reporter.

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