Judge threatens to recall Penthouse over misidentified photos

By The Associated Press

05.16.02

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NEW YORK — A federal judge yesterday threatened to order a recall of the June issue of Penthouse as testimony wrapped up in a lawsuit accusing the magazine of purposely misidentifying photos.

Judith Soltesz-Benetton told U.S. District Judge Denny Chin that she wanted June's Penthouse removed from newsstands so her son and unborn child would never see topless pictures of her in the magazine.

Soltesz-Benetton, 28, was the last witness in a two-day hearing in which the magazine's publisher and several other witnesses told why they mistakenly concluded that pictures of Soltesz-Benetton were of tennis star Anna Kournikova.

Soltesz-Benetton, the daughter-in-law of fashion designer Luciano Benetton, sued the magazine in U.S. District Court in Manhattan, demanding $10 million and a recall of the magazine.

The magazine apologized last week for misidentifying the subject of the photographs as Kournikova, who has filed a lawsuit of her own in Los Angeles.

Chin already ordered the magazine to stop distributing the issue and to refrain from publishing the pictures on a Web site.

He threatened yesterday to order a recall of the magazine, a rare judicial move in the publishing industry, if he concludes that Penthouse purposefully misidentified the photographs solely to boost sales.

"Why is this worthy of the protection of the First Amendment?" Chin asked Laura Handman, who argued the constitutional issues on behalf of Penthouse.

Handman said it was a case of mistaken identity that resulted despite the best efforts of the magazine to determine whether a videotape taken by a St. Louis jewelry salesman actually showed the tennis star.

Soltesz-Benetton alleged the photographs were taken without her knowledge about seven years ago while she sunbathed topless on South Beach in Miami, Fla.

She said she took off her top because she was modeling at the time and wanted to avoid strap marks on her chest.

Penthouse publisher Bob Guccione seemed to weaken his magazine's case yesterday when he acknowledged that the faces of Kournikova and Soltesz-Benetton do not look alike.

The judge, who has said repeatedly that it seemed obvious that the two women do not look similar enough to make such a mistake, cited the admission as he challenged the Penthouse lawyers.

But Penthouse lawyer Victor A. Kovner defended Guccione, noting that the publisher had clarified himself by saying it was necessary to study details such as elbows, chins and the slants of fingers because the face of the same person in separate pictures can look dissimilar.

The judge, though, suggested it does not make sense to say the faces of two women do not look the same but yet say "it was the same person based on how the pinkie (finger) flashes across the screen."

Outside court, Kovner said it would be a threat to all magazine publishers if the judge decided to recall the magazine, a move that Guccione said would result in few magazines being returned.

Handman said such an order would be a "hydrogen bomb" on the publishing industry, leaving magazines subject to recalls any time there was a serious mistake in an issue.

Kovner called it "draconian relief."

But Judd Burstein, a lawyer for Soltesz-Benetton, said it was only fair and there was no First Amendment issue because the magazine's quest was an advertising move purely for profit.

"They knew it was not her," he said, referring to the tennis star. "They put it in the magazine to increase sales."

The judge said he would issue a ruling by May 20.

Update

Penthouse settles with woman featured in topless photos
Deal between magazine, Judith Soltesz-Benetton struck just before federal judge was set to rule in case.  05.21.02

Previous

Tennis star sues 'Penthouse' over topless photos
Meanwhile, judge halts distribution of magazine after another woman claims in lawsuit that pictures were really of her.  05.08.02