Katy Perry performs at a Victoria’s Secret fashion parade in New York City in 2010. FashionStock.com/Shutterstock.com.
What does it mean to have freedom of speech in the U.S.? Hustler magazine has been “helping” us define this First Amendment right (at least in how it relates to shocking pornographic images) for decades. Like it or not, freedom sometimes means allowing things to exist that some find distasteful, appalling, or offensive. Some say Hustler has more recently crossed a line, creating content that is personally damaging by using Photoshop to insert pornographic images into photographs of public figures. This caused many to question the legalities of Hustler’s actions.
In 1988, the Supreme Court ruled in favor of Hustler magazine in a lawsuit brought by the late evangelical Baptist pastor Jerry Falwell. In a parody interview advertising Campari liquor quotes attributed to Falwell saw him recounting his first sexual encounter with his mother in an outhouse fueled, of course, by Campari. Falwell sued Hustler publisher Larry Flynt for invasion of privacy, libel and the intentional infliction of emotional damages, over the explicit ad published with the disclaimer “ad parody—not to be taken seriously.” Which after heavy deliberation, the Supreme Court did not.
In his delivery of the court’s opinion, Chief Justice Rehnquist said: “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.”
Thus setting a precedent for the right to parody.
A right Hustler continues to exercise—some say hide behind—today in the “celebrity fantasy” section of the magazine. High profile women, from well-known celebrities to successful entrepreneurs, are seen here under the header, “What Would (insert celebrity name) Look Like With A D*ck In Her Mouth?”
Just this year alone, high-profile women including Katy Perry, Nicki Minaj, and Amy Poehler have all had a penis Photoshopped into their mouths. Others including Blake Lively, Amy Adams and Shakira have come in for the same treatment. Lest this be mistaken for a real photo, the following disclaimer is posted: “Parody: No such picture actually exists. This composite fantasy picture is altered from the original for our imagination, does not depict reality and is not to be taken seriously for any purpose.”
Most of these celebrity fantasy depictions go unnoticed by the media. Considering owner Larry Flynt says Hustler’s monthly circulation has dropped from 3 million at the height of its popularity to around 100,000 today, this is unsurprising. But in 2012, when conservative political commentator S.E. Cupp was featured, it prompted some heavy conversations. “You would think this would be illegal, but it’s not,” Glenn Beck told his radio show listeners. Perhaps the image of Cupp bothered some more than most because of her political views, some of which were outlined in the rather descriptive mini-bio printed next to the faked photo. A point Cupp discussed with Beck on his show.
“If I can express a little gratitude for Hustler—and I’m completely serious here—there is an accompanying sidebar to this story, in which they layout why they did this to me,” Cupp said. “It’s under a hundred words, and in that paragraph they say, ‘S.E. Cupp she’s lovely, she’s smart, she’s fine, but she happens to be a crazy conservative, who is pro-life, and wants to defund Planned Parenthood. And for that, she deserves a phallus in her mouth.’ This is essentially what they are saying, and I have to commend that as being incredibly honest. There are people in the media that perform this misogyny on women like me who cannot be that honest.” Additionally, Cupp made her disgust for the situation clear in an appearance on The View, acknowledging both the crude nature in which she was treated and doubt that she could sue over it.
Whereas most of the women featured in Hustler’s celebrity fantasy section give it as little publicity as possible, Cupp wasn’t able to do that. Media outlets picked up on it and she was forced to face the vulgar imagery, an explicit act she hadn’t actually performed. Cupp called Hustler’s doctored images misogynistic, a viewpoint shared by many. After all, the women featured within the rest of the pages of Hustler are consenting models fully aware of the way they’ll be immortalized between the covers of this adult publication. Cupp and others like her have had their images altered without their consent, albeit satirically according Hustler. Cupp’s perspective raises an interesting point; if the images are purely for reasons of satire, then where are the Photoshopped men?
Parody is broadly protected but it doesn’t cover everything. If the satire is more believable than farcical, casts someone in false light or even tries to influence public opinion without social commentary, the parameters of protection change.
Poynter Institute journalism ethics professor Kelly McBride weighed in on this discussion for The Blaze: “I suspect Hustler was shooting for commentary, not journalism. But they may have been shooting for influence, as in they are trying to influence how people think about S.E. Cupp. You have to balance that against possible harm.”
Larry Flynt isn’t the only one targeting celebrities for distasteful satire. Comedy Central’s highest rating show, South Park is best known for some of its outrageous satirical portrayals of celebrities. A parodied version of Paris Hilton visits South Park in the “Stupid Spoiled Whore Video Playset” episode in which creators Matt Parker and Trey Stone paint her in a most unflattering light, mocking her in what some might call a misogynistic way. Not all that different from the explicit fake photographs Hustler publishes. This doesn’t mean Hustler or South Park hate women, it’s all done in the name of satirical “comedy.”
California adult entertainment attorney, Michael Fattorosi believes satire is an issue that goes to the heart of free speech. “Parody gives very strong rights to free speech but you always have to look at the context, every case would be different and it depends on so many different aspects,” he says. “It’s a very complex issue and a case by case basis depending on the facts, depending on the picture, what’s in the picture, the captions around the picture, how the picture is presented, and what the rights to the picture were.”
Though it seems Hustler has the legal right to publish these doctored celebrity images, it raises other questions such as where did these photos come from, what rights do the celebrities in the photos have to their images and do the rights of the photographers matter?
Celebrities in public have little right to privacy, common knowledge the paparazzi take full advantage of as they stalk famed hot spots waiting to snap hundreds of photos to sell to the highest bidder. Some photographers sell their photos through stock image companies like Shutterstock, allowing customers to pay to license the content. Photographers retain ownership but grant non-exclusive rights to Shutterstock and its clients to use the submitted images without always knowing where the photos will be published—a common practice in this business.
Photographer Hew Burney started shooting such images in Hollywood nightclubs nearly 15 years ago before transitioning to Las Vegas. “I was out every single night of the week, shooting at any venue where there was someone famous. For a while there I was one of the most prominent celebrity photographers in Vegas.”
Burney acknowledges some of the difficulties in keeping track of his photos. Where they were published wasn’t always clear. “If they’re selling the images to a magazine in Japan or Australia we might never see those magazines,” he says. “You have to search all the weeklies and all the websites that post celebrity photos to find your photo and see who is using it.”
When Burney discovered some of his photos were published out of context there wasn’t much he could do about it. “I’ve always had this belief that I have great integrity but the people I was working for were melting that away by misusing the content,” he says. “Chasing your rights gets ridiculous, that’s why so many photographers create their own paparazzi agencies, so they can broker a deal directly.”
That said, some photographers might not know their photos are in Hustler’s “celebrity fantasy” section. And even if they do, there may be little recourse. However photographers who submit images to Shutterstock might be particularly shocked, since the terms of Shutterstock’s visual license content clearly prohibit the use of photos in conjunction with porn. The restrictions on use section states that customers may not “use any visual content in a pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal.”
And yet, this Shutterstock image of Rosario Dawson looks remarkably like the one Hustler Photoshopped in the January 2015 issue. And in the March 2015 issue, the photo satirizing Katy Perry looks just like this one on Shutterstock. There are at least half a dozen more examples where it appears that Hustler is using images from Shutterstock.
Asked about the photoshopping of celebrities, Hustler vice president of communications and marketing Arthur Sando said in an email: “Mr. Flynt won a landmark, unanimous U.S. Supreme Court decision in 1988 declaring that parody is free speech. As a result, HUSTLER magazine has continued its tradition of publishing parodies, some of which may be offensive but are protected under the law.”
Nevertheless it does seem as though Hustler may be violating Shutterstock’s terms of service. Both Shutterstock and Hustler declined to comment. And if any angry photographers catch wind of their images being misused, there probably isn’t much they can do about it. Shutterstock’s Submitter Terms of Service for contributors states “Shutterstock shall have the right, but not the obligation, to license all Content to its customers for use in accordance with Shutterstock’s Standard License, Enhanced License, Footage Terms of Service, and/or any other licenses Shutterstock may grant or agreements Shutterstock may enter into from time to time.” In other words, since Shutterstock maintains the right to license content according to their outlined standards but not the obligation to, it protects them from possible legal issues should anyone discover misused content. Beware the fine print.
Being a celebrity comes with some heavy costs. Achieving fame means living in the public sphere, and while that can mean riches and glory, it can also mean ridicule and public shaming. Hustler has the right to publish explicitly Photoshopped images of celebrities, and that translates into artists having freedom of expression. Without these kinds of definitions, Trey Parker and Matt Stone couldn’t give us the outrageous and occasionally spot-on satire we find on South Park. Yet these parodies have importance beyond the shock value of vulgarity. Though difficult to accept and perhaps unwelcome, a Photoshopped image of a male appendage in a mouth of a public figure is a crude reminder of our guaranteed rights as Americans.
Regardless, the huge popularity of Internet pornography means that Hustler and its controversial content, in print form at least, will soon become obsolete. A fact even Larry Flynt himself has acknowledged, saying “the writing is on the wall.”
Aurora Snow is a former adult actress and a contributor to the Daily Beast.