State Supreme Court Justice Emily Jane Goodman rejected a defense motion to dismiss the lawsuit filed by Manuel Alex Saez, who sued Splash Nightclub, HX Magazine and two John Doe defendants for defamation and allegedly using his photograph for promotional purposes without Saez’s permission.
According to court documents, in addition to his day job at a clothing store, Saez performed as a dancer under the name “Alex,” on occasion performing at Splash for parties and events. Sometime around January 2006, Splash requested that Saez have photographs taken by a local photographer.
In the lawsuit, Saez alleged that he accommodated the request for photographs on the condition that “any image(s) be used solely for one-time limited in-house distribution of flyers.” Saez claimed that because the photos were for limited use, he received no compensation for them, and further asserted that at no time did any of the defendants in the case secure his verbal or written consent for any other use of the images.
More troubling to Saez than the use of the images, however, was the text that accompanied his image when HX Magazine ran a notice about a January 2006 appearance Saez was scheduled to make at Splash, in which Saez was referred to as “big city video porn star ‘Alex.’”
According to the lawsuit, the description of Saez as a “porn star” immediately began to wreak havoc in Saez’s personal life.
“Shortly after the publications, plaintiff realized that some of his friends, acquaintances and co-workers had become aware of the publications, when they inquired if he was — in fact — a ‘porn star,’” the lawsuit stated. “After the publications, plaintiff became the subject of gossip and innuendo at his workplace, and became deeply concerned that he would lose his job if his employers believed that he was a porn star.”
According to the lawsuit, Saez’s “fears were realized” when he was fired from his job in early February 2006, just weeks after the publication of the “big city porn star” promotional listings.
In defending the allegations, HX Magazine argued that the listing was not an advertisement, but a “newsworthy” notice of a public event, and that in crafting its notice, it had relied on information provided by Splash, which had been a “historically reliable” source. HX also later published a correction and retraction of the notice, according to court documents.
In her ruling, Goodman found that issues of fact remain as to what steps HX took to determine whether Saez was, in fact, a “porn star,” and whether HX used the photograph for a commercial purpose without proper authorization.
The judge noted that all parties in the lawsuit agree that Splash provided the announcement, including the photograph and porn star description, but indicated that fact does not necessarily release HX from liability.
“As to the words claimed to be actionable … defendant [HX] does admit that no investigation was done” to determine if Saez was a porn star, Goodman wrote in her decision.
Attorney Chad Belville told XBIZ that Goodman’s decision to allow the case to continue is not necessarily indicative of the strength of the case.
“It appears the judge in the case just ruled on a motion to dismiss, which simply means that the case can go forward,” Belville said. “A motion to dismiss is very harsh — it would have prevented the model from even presenting his case, and judges don’t like to close the courthouse doors on someone until it appears they have no case at all. It does not mean that the dancer has a good case, this ruling only means that his case at least has a few points and is not completely without any merit.”
Belville said that he doesn’t think Saez’s case is a particularly strong one overall.
“The dancer’s actions and motives are suspect,” Belville said. “The publications ran in January; he claims that he was fired from his job in early February, but did not demand they stop using his image until the middle of March. He claims he found out about the ads ‘several weeks’ after they ran, but if they ran January 27 like he claims and he was fired in ‘early February’ something does not add up.”
Belville also took exception to the notion that being called a “porn star” is necessarily defamatory.
“This dancer claims that calling someone a porn star ‘imputes immoral conduct and/or sexual impropriety,’” Belville said. “I disagree entirely and I doubt that this guy could get very far with that claim since he was already dancing nearly nude at a club that has regular shower shows. Being called a porn star is not going to tarnish his image, and just being called a porn star in an advertisement — and we all know advertisers exaggerate — probably will not be found by a jury in New York City to be defamatory.”
Alan Effron, attorney for HX, was not available for comment as of press time for this article. On Monday, however, Effron told the Associated Press that it was “unfortunate” that the court did not recognize that the promotional listing was “newsworthy to its [HX’s] readership, and that, in simply printing the press release and photograph supplied by a historically reliable source, the magazine acted responsibly.”
Effron predicted that upon further review, the court would change its opinion and determine that HX acted responsibly.
