Former Madonna BodyGuard Loses 'Gay Photo' Lawsuit

A former Madonna bodyguard and lover has lost his defamation and invasion-of-privacy claims against the author and publisher of a book in which he was allegedly misidentified in a photograph as one of the pop star's dancers, a homosexual.

The U.S. Court of Appeals for the 1st Circuit refused to disturb a finding that there was nothing about the plaintiff's appearance and nothing in the text of the tell-all book "Madonna" by Andrew Morton that would lead a reasonable reader to conclude he is homosexual.

James Albright, a professional bodyguard who was Madonna's lover for three years, said in his lawsuit he was identified in a photograph of the pop singer and part of her entourage as Jose Guitierez, an "outspoken homosexual" who was one of Madonna's dancers.

The photograph at issue, along with the erroneous caption, was published in the Nov. 12, 2001, issue of People magazine and in British tabloid News of the World March 17, 2002.

Albright and his corporate agent, Amrak Productions, filed suit against Morton and the book's U.K. and U.S. publishers for, among other things, defamation, invasion of privacy and negligent infliction of emotional distress.

The U.S. District Court for the District of Massachusetts granted the defendants' motion to dismiss, finding that no reasonable view of the photograph or reading of the text would indicate that Albright is homosexual.

"For the photograph to make any kind of statement regarding Albright's sexuality requires the court to pile inference upon innuendo, innuendo upon stereotype," U.S. District Judge Nancy Gertner wrote in her opinion.

Therefore, publication of the photograph is not defamatory, she ruled.

In the alternative, Judge Gertner held that describing someone as homosexual is not considered defamatory per se in Massachusetts. She then dismissed the related claims of unauthorized use of name or likeness, false-light invasion of privacy, emotional distress, negligence and unfair trade practices.

The three-judge 1st Circuit panel agreed with Judge Gertner's conclusion.

The appeals court explained that the photograph could be considered defamatory if it would tend to hold Albright up to "scorn, hatred, ridicule or contempt" when it is interpreted reasonably. The highest court in Massachusetts, the Supreme Judicial Court, has required that courts examine allegedly defamatory photographs within the context of the entire publication when considering a motion for summary judgment, the panel said.

There was nothing in the miscaptioned photograph of Guitierez that would lend itself to a reasonable conclusion that Albright is gay, according to the appeals court. It emphasized that the book stresses Albright's heterosexuality by using such descriptions as "Madonna's secret lover," his "hot and heavy affair" with Madonna, and "their sexual encounters," and, therefore, no reasonable reader would conclude he is gay.

Finally, the 1st Circuit found without merit the plaintiff's derivative claims and declined to consider his argument that the claim of false-light invasion of privacy should be recognized in Massachusetts. The panel said Massachusetts courts had repeatedly refused to recognize that claim.

http://news.findlaw.com/andrews/em/e...0609amrak.html

So in effect, anyone who is reasonably famous can now be called 'gay' in magazines and there is nothing that they can do about it.

Regards,

Lee