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A suit by Russian tennis pro Anastasia Myskina alleging the unauthorized dissemination of semi-nude photos by Gentleman’s Quarterly magazine has been dismissed by a federal judge. Southern District of New York Judge Michael Mukasey granted summary judgment on all of Myskina’s claims, including two claims brought under provisions of New York Civil Rights Law. The provisions involve situations where a plaintiff generally seeks publicity but has not given written consent to a particular use or the defendant has exceeded the limitations on the plaintiff’s consent. Myskina, the winner of the 2004 French Open and currently the 10th ranked player in the world, had agreed to pose as Lady Godiva in a photo shoot for the October 2002 issue of GQ. She sued after photos from the Lady Godiva shoot appeared in the Russian magazine Medved along with a second set of topless photos that she claims the photographer promised to keep private. Judge Mukasey found in Myskina v. The Conde Nast Publications, Inc., 04 Civ. 6094, that the “plain language” of a release signed by Myskina directly contradicts her claim that she had an oral agreement with the photographer on the publication of the photos. The release, signed before the photographs were taken on July 16, 2002, provided that Myskina “hereby irrevocably consent(s) to the use of [her] name and the pictures taken of [her]” on a specified date by Conde Nast “ and others it may authorize for editorial purposes.” But Myskina claimed initially that she did not recall signing or discussing the release and, because she was not fluent in English at the time, could not have understood its terms in any event. She later contended she never would have signed the release had she understood that it authorized GQ or photographer Mark Seliger to publish, sell or disseminate the photos beyond the October 2002 publication of the Lady Godiva photograph in the magazine. Following the taking of the Lady Godiva photos, Myskina said she agreed to be photographed topless wearing blue jeans by Seliger, who purportedly promised that the photos would be “for himself” and would not be published anywhere. But in 2004, Seliger’s exclusive agent, Corbis Corp., received images from Seliger and placed them on its Web site. Corbis then licensed five of the photos to Medved. Medved had already approached Myskina for an interview and photography session. She granted the interview but refused to allow photos. The magazine used the interview along with the Seliger photos, including one on the edition’s cover, for an article in its July/August 2004 edition entitled “Nastya Myskina: The Champion’s Private Life.” Myskina claimed the photos were “highly embarrassing” and caused her “great emotional distress and economic harm and injury to her reputation.” SIGNED RELEASE Her complaints focused on �50 of the New York Civil Rights Law, which penalizes as a misdemeanor the publishing, for the purposes of trade or for advertising purposes a portrait or picture of a person without their written consent. She also cited �51 of the law, which allows for an equitable action where photos are published without consent. Judge Mukasey said that, even though Myskina acknowledges that the signature on the release appears to be hers, “it is not enough for Myskina to simply aver, in conclusory fashion, that she does not recall signing the release.” “Absent allegations of fraud, duress, or some other wrongdoing, Myskina’s claimed misunderstanding of the Release’s terms does not excuse her from being bound on the contract,” he said. And as for her claim that there was an oral agreement limiting her consent to the use of the photos only in GQ, he said “the parole evidence rule bars the admission of any prior or contemporaneous negotiations or agreements offered to contradict or modify the terms of the written agreement.” Mukasey found that the release was an “integrated agreement as to which photographs Myskina authorized the defendants to use for editorial purposes.” The release does not mention the alleged oral agreement or any other agreement that would limit her consent to the GQ publication and “Further, it addresses a straightforward transaction and plainly sets forth that Myskina consented to defendants’ use of all photographs taken on July 16, 2002,” he said. NEWS VALUE The judge went on to reject Myskina’s argument that the terms of the release limited Conde Nast to its own publication of the photos and that neither Conde Nast nor Seliger had the right to sell the photos to a third party. Musakey said that New York courts have “adopted a deferential standard of review in evaluating the media’s editorial judgments” for the public interest exceptions to ��50 and 51. The courts, he said, recognize that the sale and subsequent “use” of a photograph as protected under the First Amendment where there is a “reasonable connection” with the publication of a “matter of public interest … “ “Hence, the issue boils down to whether (i) the Medved article was ‘newsworthy’ or involved matters of ‘public interest’; and (ii) whether the photographs bore ‘a reasonable connection’ to that article,” he said. Mukasey concluded that the standard had been met. “ Medved published the article and photographs within one month of Myskina’s French Open victory,” he said. “It can hardly be argued that an article about the victory itself, Myskina’s impression of women’s professional tennis, and accounts of her romantic life is not newsworthy or does not involve matters of public interest, as liberally as those terms are construed when applying Sections 50 and 51.” Alexander Berkovich of Berkovich and McMenamin represented Myskina. Daniel M. Felber of Balsam Felber & Goldfield represented Conde Nast Publications Inc. and GQ.

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