Monday, July 23, 2007

Nude Television Anchors and Oral Settlement Agreements

Those who ever doubted Andy Warhol vastly underestimated everyone’s 15 minutes of fame when nudity is involved will take solace in the case of Catherine Bosley. In 2003, she became the noon show anchor of TV station WKBN in Youngstown Ohio. In that year, she suffered a serious lung ailment. She had earlier run three marathons (and despite open heart surgery in 1999). While recovering from her lung ailment, she and her husband went to Key West, Florida during Spring Break, a decision one can question even without hindsight. In her case though, things took an unusual turn. As explained by wikipedia:

While there, she joined in a wet T-shirt contest one night around midnight. The event was filmed, and the film of Bosley stripping and posing nude for the crowd was leaked on the Internet about 10 months later. As a result of the negative publicity, she resigned from WKBN.

She did not however shy away from the publicity and appeared across the nation on TV shows, including in in a sweeps interview by WOIO-TV in Cleveland, Ohio, conducted by Sharon Reed, who had herself generated considerable controversy when she appeared nude in a photo shot by mass nude photographer Spencer Tunick and then showed pictures of herself on the air. The interview was apparently highly regarded by the station's owners since Ms. Bosley is now employed by WOIO-TV (and has run two more marathons). Her side of the events, can be read on her website here. A July 31, 2006 debate between a Fordham University professor and Bill O’Reilly on whether Ms. Bosley should have resigned can be seen here. Mr. O'Reilly attempts to distinguish his own behavior from hers.

All of this naturally leads to copyright law. When the video of her winning performance was leaked, Ms. Bosley brought an initial suit alleging violation of her right of publicity. That case was settled; part of that settlement involved assigning copyright in the video to her. She then registered her claim to copyright. Thereafter, she determined that unauthorized copies were being made, and she sued, this time for copyright infringement (along with state claims). Almost at the courthouse steps, an oral settlement was reached and the trial judge sua sponte dismissed the suit with prejudice, retaining jurisdiction for settlement purposes. Negotiations on formalizing the settlement agreement broke down; plaintiff moved to enforce the oral deal. The district judge granted the motion; defendants appealed and the Sixth Circuit recently affirmed, 2007 WL 2050655 (6th Cir. July 13, 2007). Both courts rejected defendant's claims that the negotiations were little more than preliminary (an inconsistent assertion since it was defendants who informed the court that there was no need to empanel the jury and had filed a "Notice of Settlement" with the court). Finally, the court rejected defendants' claim of fraud allegedly arising out of plaintiff's failure to disclose that she planned to go on Oprah's TV show and blab about the matter once again. (Take that Andy).

The court’s decision should be of assistance to those who find themselves in similar predicaments (the legal enforcement ones, that is).

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