The Old "She Oughta Be Flattered" Defense[Click to read]
The Spice House is named as defendant in a law suit filed by actress Catherine Zeta-Jones. Kent Wallace, owner of The Spice House, is quoted by Reuters as saying "We are just shocked and bemused by this," Wallace says. "She is a big double-D and we are just B cups. She ought to pick on someone her own size."
The 'Pick on Someone Your Own Cup Size' defense is interesting. However, I like this one better. "She should have been flattered, as far as I'm concerned," Wallace said. This is reported by AP.
Now, it has been awhile since I was in first year torts class thinking about defamation, and it's possible that I just don't remember these defenses, but it is unlikely that they are going to persuade a judge to dismiss the case as Wallace hopes. Zeta-Jones seems to have a valid complaint. Imitation may be the highest form of flattery but can finding yourself pictured with half naked women in an ad for topless cabaret really be imitation? OH WAIT! Zeta-Jones was in a film, the subject of which involved cabaret, in which she starred as a cabaret performer... hmmmm. Perhaps The Spice House was engaging in imitation of a sort. Which begs the next question:
How can this also be true? "It was an image of a beautiful woman," Wallace said. "We had no idea it was Catherine Zeta-Jones." (Also reported by AP)
Hello? No idea it was a massive celebrity who starred as a racy cabaret singer in a wildly successful film? And speaking of imitation, the club now has a dancer billing herself as Katherine "TATA" Jones. I am going to apply the judicially created and also wildly successful DUH test to this:
In light of these obvious and apparent facts is it likely that Wallace is telling the truth about his ignorance of the subject of this photo of a fetching female face?
Also, I am not certain who might be expected to actually be flattered by the unauthorized use of their image to promote topless dancing. Perhaps a dancer from a less popular cabaret club. Or a hooker. Or maybe Mrs. Wallace, Kent's mom. As long as were doling out flattery might as well spill some on the ones we love.
My point here, and I do have one, is that I think Kent should have spoken to an attorney before he spoke to the press. I imagine that he thinks he's funny. (Actually, he is kinda funny) But the law rarely, if ever, is going to favor the funnier party to a law suit. Otherwise, attorneys would be a lot more fun to hang out with. Had Kent called an attorney and asked "Should I tell the press that we are merely B cups, being attacked by a bully Double D, who shoulda been flattered in the first place?", the attorney may well have responded "That raises novel and complicated issues of tort law, evidence rules, constitutional principles, and maybe even some Warsaw Pact stuff. I'll need to research this, at my customary fee of $375. an hour and get back to you in 4 to 6 weeks." (It's good to be the lawyer)
Seriously, there are no treaty issues involved here. That's just silly. But I am thinking about evidence. The two issues raised are the use of Wallace's prior inconsistent statement as impeachment of his testimony at trial and his competence as a lay witness to express this opinion of Zeta-Jones' cup size.
If I were him, I'd seriously consider settlement. and I'd keep my day job.