It was Spring Break 1996 and we were in Cancun with a large contingent of idiots. No one hooked up except for Slick, and he only made out with some freshman from W&M. Instead everyone chose to isolate and consume and behave in a way that made other people want to avoid us. It was a very unusual trip in that sense.
Upon returning to our hotel clean up and go drinking after spending the day at the beach drinking, I and the rest of my herd of morons were accosted by a very short woman who repeatedly and excitedly yelled "Yoo wan go booz crooz?!" and handed us flyers promising an amazingly sloppy all-you-can-drink boat ride culminating with a party attended by nymphomaniacal women at a place called something like Booz Crooz Island. Her query required no consideration as we all said "yes" in unison and ponied up the $50 each (or whatever the ungodly-large-at-the-time sum was).
The booze cruise was, predictably, a shit show. Too many people, not enough bars serving booze. Everyone's favorite ER doctor tipped one bartender $20 with the hope of getting preferential treatment but it didn't work. We did not get our money's worth of booze, but still held out high hopes for Booz Crooz Island.
No one got laid (or even lei'd) on Booz Crooz Island, but the main event of the night was the aforementioned wet t-shirt contest. Said contest was particularly memorable because it featured the coolest thing TR ever did -- he got something like 500 guys to start chanting "We want bush!" entirely by force of will. He had his trademark glazed uber-drunk crazy-eyed with pursed-lips look as he surveyed the scene. He then bellowed at the top of his lungs "We want bush!" while pumping his fists up in down with each syllable. I've never been prouder of him, or perhaps of anyone, than I was standing by his side that night as he channeled his inner Dan Quayle and rallied the base for bush on Booz Crooz Island. Parenthetically, this trip featured my "best call ever" as well, which is why TR and I were all washed up at 22. But that's another post.
Anyway, the "bush" chant did not result in the display of any bush that I remember and, unsurprisingly, completely disgusted the prim W&M women on the trip.
That's all I know about wet t-shirt contests. So when people ask me, "zman, what should I do with all the photos I took at this wet t-shirt contest?" I don't know what to say. Luckily, the Court of Appeals for the Sixth Circuit recently addressed this issue. It's a long opinion and I don't expect you to read it all, so here's what you need to know.
The plaintiff is a woman named Catherine Balsley who goes by Catherine Bosley. Probably because "Balsley" contains the sound "balls" and she doesn't like that naughty association. According to the opinion:
In March 2003, Bosley was a 37-year-old news anchor for a CBS television affiliate in Ohio. While on vacation in Florida, Bosley entered a “wet t-shirt” contest at a bar and ultimately danced nude. An amateur photographer named Gontran Durocher was in attendance and took pictures of Bosley in various states of undress, without Bosley’s knowledge.There are a couple of things that the court didn't address but that need to be said. I'm very much in favor of women, particularly women who are nude, and I encourage them to dance nude and/or in wet t-shirts whenever they want. However, women should exercise careful judgment before doing so. For example, if you are a 37-year-old TV news anchor, you probably shouldn't be whippin' out titties in public. Not because you're 37 -- there are in fact many beautiful women over 40, like Hallie Berry, Jennifer Anniston, Shlara, KQ -- but because your job requires a certain level of gravitas and decorum that just doesn't jibe with wet t-shirts and people expect better judgment once you're over 30. Now, if you were a 20-year-old supermodel, no one would bat an eyelash if you posed for a remarkably NSFW wet t-shirt photo shoot. So, in a nutshell, you should not participate in a very public wet t-shirt contest unless you are under 22 and, ideally, you look like Kate Upton. Chris Rock already summarized this for us. Further, Gontran Durocher sounds like a fake name but I don't have time to figure that out.
The opinion goes on to explain that:
Defendant LFP owns and publishes Hustler magazine, a monthly magazine that “contains graphic images and stories about sex.” The magazine publishes extremely illicit photographs, both real and fabricated. Relevant to this case is a section of the magazine called “Bits & Pieces,” which has a recurring “Hot News Babes” piece. The “Hot News Babes” piece is a “contest” that has been a part of the magazine since 2005 and is listed in each issue’s Table of Contents. The contest invites Hustler readers to nominate young, attractive female news reporters; Hustler editors then review the submissions and feature one reporter’s picture in each edition. The reader who nominates the chosen reporter receives a “prize pack.” Hustler’s Editorial Director Bruce David, Managing Editor N. Morgan Hagen, and “Bits & Pieces” Editor Keith Valcourt agreed that the contest was created to encourage reader participation and interest in the magazine and to generate magazine sales.This is fascinating. Hustler needs three editors? Including one dedicated entirely to "Bits & Pieces"? How hard could any of these jobs be? And what's in the prize pack? At any rate, you can see where this story is going:
Durocher published the photographs of Bosley on lenshead.com from May to June 2003.Wait ... what? Balsley bought the rights to the photos AND registered them?! Where does Larry Flynt come in?
* * * *
Plaintiffs sought ownership of the photographs so that they would have a legal means of ending the photographs’ dissemination. They negotiated with Durocher, who sold, transferred, and assigned all rights, title, and interest in the copyright to the photographs to Plaintiffs. Plaintiffs then registered their acquired copyright with the United States Copyright Office on August 25, 2004. As public interest in the photographs diminished in 2004, Bosley was employed as a television reporter in another city.
One of Hustler’s readers, Ken Blazina, was aware of Hustler’s “Hot News Babes” contest and decided to nominate Bosley as a “hot news babe” several years after the Florida incident. Blazina wrote to Hustler on August 5, 2005 and described Bosley as the “HOTTEST babe ever.” He did not include a photograph, but he did explain that nude photographs of Bosley were available online. Blazina also mentioned that Bosley lost her job because of the lenshead.com publication of the photographs. Blazina’s submission was received by Valcourt and given to David, who asked Hustler’s art department to locate pictures of Bosley. David received three pictures in response: a professional head shot of Bosley and two pictures taken of Bosley during the “wet t-shirt” contest, one where Bosley was completely nude and another where she had partially exposed her breast while being sprayed with a hose. The latter image was one of the photographs taken by Durocher and copyrighted by Plaintiffs (hereinafter “the Bosley photograph”).Ok, this makes sense now. It's all Ken Blazina's fault. I have no idea who that is but I googled him and found a LinkedIn profile stating that Ken Blazina used to work for ... Youngstown Sheet & Tube!!! What are the chances? I'd shoutout Justice Jackson but my powers are at their lowest ebb right now.
This is where shit gets real:
Defendant’s editors were aware that the Bosley photograph was copyrighted, but did not know who the owner was. David allegedly sent the Bosley photograph to Mark Johnson, Hustler’s Research Director, and asked Johnson to locate the copyright owner. David contended that Johnson attempted to locate the photograph’s copyright owner but was unable to do so. Johnson, however, testified that no one asked him to find the copyright owner and that he never attempted to do so.Hustler has a Research Director? And his name is Johnson? C'mon. Anyway, what type of jackass publishing operation has a Research Director who allows a photo to publish without checking the copyright status?! What other research is this guy directing? And how do I get that job?
In a ballsy (Balsley?) move, Hustler published the photo in its February 2006 issue:
This month’s eye candy is Catherine Bosley from Cleveland’s WOIO Channel 19. The anchorwoman not only looks good, but apparently also likes to party. Previously, while at WKBN in Youngstown, Ohio, she tendered her resignation after topless shots of the fetching blonde at a Florida wet T-shirt contest surfaced all over the Internet. Thanks to K.B. for an excellent submission.Balsley sued on various grounds and won $133,812.51. Coppertone, oh you copyright infringement indeed! Hustler appealed, asserting a fair use defense. Hustler also asked for a new trial, taking umbrage with several of Balsley's attorney's comments at trial, including this gem:
I have a daughter, who’s the most important thing in my life, and I tell her it’s okay to make mistakes. Nobody is perfect. Stand up for what you believe in and don’t give up. That’s what I tell her. Catherine Bosley, you made a mistake. You took your clothes off. Okay. You can’t take that back. But, if my daughter turns out like Catherine Bosley, if she is able to live up to that role model of not giving up and sticking up for what she believes in, I will be one proud father.I'ma call bullshit on this. If I had a daughter, and she lost her job because she danced naked at a bar and people published pictures of it, I would not be proud. Sorry. I wouldn't. I would probably implode with anger and many other emotions. Pride would not be one of them.
After considering this and other facts, the Sixth Circuit said:
[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—They ruled that Hustler's use was clearly commercial; the photo possessed "a mixed nature of fact and creativity"; Hustler used the entire photograph; and the presumption of unfair market exploitation applied because the use was commercial. So the naked news lady won. No new trial was ordered despite the Balsley attorney's statements (pun!). You just won the wet t-shirt contest Catherine Balsley!
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The take-home messages appear to be:
1. Think twice before publishing unflattering or questionable photos of even marginally famous people.
2. Do a little research before publishing something you didn't create.
3. Use care when going publicly topless, and I'm not talking about sunscreen.
4. Be proud of women who get naked.
Now you know about wet t-shirt contests ... and knowing is half the battle.