Toffoloni v. LFP Publishing Group, LLC

Filing 267

DEPOSITION of Christopher Lee Helton taken on April 22, 2011 by LFP Publishing Group, LLC.(kac)

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

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RtfD m
CtfRK'S OFFICE
u.S.D.C. Atlanta

MAUREEN TOFFOLONI, as
Administrator and Personal

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AUG 1 52011

Representative of the Estate
of NANCY E. BENOIT,

JAMES N. HAllEN ••C ER
By:

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Pl

ntiff,

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CASE NO.

-v­
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1:08-cv-00421-TWT
LFP PUBLISHING GROUP, LLC,

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d/b/a Hustler Magazine,

Defendant.

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The videotape deposition upon oral examination

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of CHRISTOPHER LEE HELTON, a witness produced and

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sworn before me, Maria W. Collier, RPR, CRR, Notary

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Public in and for the County of Marion, State of

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Indiana, taken on behalf of the Defendant at the

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of

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Indiana Square, Suite 2425, Indianapolis, Indiana, on

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April 22, 2011, at 2:34 p.m., pursuant to the Federal

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Rules of

ces of Stewart Richardson & Associates, One

vil Procedure.

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TSG JOB NO. 38092
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877-702-9580

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APPEARANCES

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FOR THE PLAINTIFF (Via videoconference):

Richard Decker, Esq.

HALLMAN & WINGATE, LLC

166 Anderson Street

Suite 210

Marietta, GA 30060

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FOR THE DEFENDANT (Via videoconference):

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S. Derek Bauer, Esq.
Darrell J. Solomon, Esq.
McKENNA LONG & ALDRIDGE, LLP
303 Peachtree Street, NE
Suite 5300
Atlanta, GA 30308

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ALSO PRESENT: Michael Canny, Videographer

INDEX OF EXAMINATION

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DIRECT EXAMINATION
By Mr. Bauer:
CROSS-EXAMINAnON
By Mr. Decker:

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877 -702-9580

THE VIDEOGRAPHER: We are going on the record,
and this begins Tape No. I of the video deposition
of Christopher Lee Helton. This is in the matter
of Toffoloni v, LFP Publishing, et at. This is in
the court of the U,S, District Court of the
Northern District of Georgia, The cause number is
I :08-cv-00421-TWT.
This deposition is being held at Stewart
Richardson court reporting agency, One Indiana
Square, Suite 2425 in Indianapolis, Indiana.
Today's date is April 22, 20 II. It is 2:34 in the
afternoon.
My name is Michael Canny. I am with TSG
Reporting, Incorporated. I am the legal video
specialist. The court reporter today is Maria
Collier. She is also in association with TSG
Reporting.
Will counsel please state their appearance for
the record, and will the court reporter please
swear in the witness, Thank you very much.
MR. DECKER: Richard Decker for the plaintiff,
Maureen Toffoloni.
MR. BAUER: Derek Bauer for defendant LFP
Publishing.
MR. SOLOMON: Darrell Solomon for defendant
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LFP Publishing Group.
CHRISTOPHER LEE HELTON
having been first duly sworn to tell the truth, the
whole truth, and nothing but the truth was examined
and testified as follows:
DIRECT EXAMINATION
BY MR. BAUER:
Q Mr. Helton, good afternoon. As you know, my name
is Derek Bauer, and I am a lawyer for Hustler
Magazine in the case involving the publication of
images of Nancy Benoit. Thank you for being here
today and agreeing to testify to the jury remotely
by videotape.
Please go ahead and introduce yourselfto the
jury.
A My name is Christopher Lee Helton. I am a
professional photographer.
Q And where do you presently live and work, sir?
A In Indiana at the moment. I used to reside in
Orlando, Florida.
Q Could you tell the jury a little bit about your
professional background.
A I've been shooting professionally since 1974. In
the '80s I started shooting a lot of fashion for
swimwear magazines and modeling agencies. That's
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how I ran across Sandee actually.

MR. DECKER: I don't know what he said.

THE WITNESS: Yeah. I realize what I said.

It's like, wait a second, they don't care about
that.
BY MR. BAUER:
Q How much would you say you've had with respect to
profeSSional experience photographing models for
magazines?
A Hundreds and hundreds,
Q And in your experience, how are professional
photographers generally paid for the photos they
take with respect to models?
A Sometimes you get a flat fee. You give them a flat
fee. Other times it's per shot. If there's a lot
of shots, then it's just a bulk. They pay just a
flat fee for, say, ten shots, They'll pay a flat
fee as opposed to paying for every shot.
Q And what are the basic ranges of those payments, in
your experience?
A Anywhere from $50 to 200 baSically.
Q And is that how you have been paid generally for
your efforts to photograph models throughout your
career?
A Yes.
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Q Mr. Helton, are you familiar with an article and
images of Nancy Benoit that were published in the
March 2008 issue of Hustler Magazine?
A Yes, I am.
Q And were you present for the photo shoot described
in that article and in which the images published
with the article were recorded?
A Yes, sir.
Q And how was it that you came to be present at that
photo shoot?
A I was talking to Mark Samansky on the phone, and he
said he was going to video this girl, that her and
her husband wanted some pictures, and would I come
and shoot the pictures. And I said yes.
Q And who was Mark Samansky?
A Mark Samansky -­
Q How do you know him?
A Through the radio station. I was photographer for
WDIZ, and he was a morning personality on WDIZ.
Q And Mr. Samansky recently passed; is that correct?
A Yes, he did.
Q Who else was present at the photo shoot?
A There was another guy named Bill Otten. He is a
wrestler photographer.
Q So Mr. Samansky, yourself, another photographer
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named Bill Otten, and obviously Nancy Benoit.
Anybody else?
A Her husband. I don't remember his name.
Q Were you paid for your participation in that photo
shoot?
A No, I wasn't.
Q And was anybody other than you taking photographs
or images during that shoot?
A Mark was shooting it with video, and I was shooting
stills, and Bill shot a couple shots.
Q How did Nancy Benoit and her then husband, whose
name, by the way, is Jim Daus, how did they behave
during the photo shoot? Did they seem reluctant?
A No. They were excited about it actually. It was
their idea.
Q Did they express any concerns or reservations to
you or anybody in your presence about participating
in the photo shoot?
A No.
Q At any time?
A No.
Q After the shoot, did you ever meet with Nancy or
her husband again?
A Yes, one time. We showed them the photos.
Q Please tell the jury what you can recall about that
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meeting and specifically when it occurred and who
was present.
A It was about a week later, after we shot the
photos. And I came over to Mark's, and I showed
them the photos, and they loved them.
Q So who all was present for that meeting?
A I know Mark was. Nancy and her husband were. I
think that was all that was there.
Q Did you retain the negatives from that photo shoot?
A Yes, I did.
Q And were Nancy and her husband, Jim, aware that you
had retained the negatives?
A Yes.
Q At any time did either ofthem ask you to destroy
either the images that you took or the negatives?
A No.
Q Do you know whether they asked Bill Otten, the
other photograph, to destroy the images he had
taken?
A No, they didn't.
Q Have you ever been asked by Nancy Benoit, her
mother or Jim Daus or anyone else to destroy those
images or the negatives ­
A No, I haven't.
Q -- in your possession from that photo shoot?
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A No, I haven't.
Q So I understand, so Miss Toffoloni has never asked
you to destroy those images?
A Never talked to her in my life. If you're talking
about the mother.
Q Correct.
A Yeah.
Q The images that you took of Nancy Benoit that day
were of professional quality?
A Yes.
Q How would you describe the images that were
published with the Hustler article about Nancy?
A The images were similar, except the quality was -­
from my stuff was way higher than the quality they
had. What they had was kind of grainy. My stuff
wasn't grainy.
Q If today -­
A But basically it's the same -­ the shoot, from what
representation is in the magazine, is basically a
representation of what my photos would look like.
Q If today you were to sell professional quality
images that you took of Nancy Benoit for
publication in a national magazine, what would you

expect to be paid for them?
A Average, 75 bucks per photo.
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Q For all of your photos or just one?
A Per photo.
Q Per photo?
A Yeah.
Q How about if you sold them a few months after
Miss Benoit's murder?
A It drops down. It can be 50 bucks.
Q So the $75 per photo would be if you sold them
immediately after the murder, in your opinion?
A In sold it, you know, within days after it, I
might have got $100 apiece, ifl was lucky.
Q Given the substantial difference in the quality
between the images you took and the images
published by Hustler of Nancy Benoit, would you
expect that the Hustler images would be valued even
less than the professional quality images you took?
A Oh, yes. Yes, it would be, way less.
Q And based on your more than 30 years as a
professional celebrity photographer, how much do
celebrity photos sold to national magazines
generally go for?
A An average is $35 to 75.
Q Per photo?
A Right.
Q What's the most you've ever been paid for a
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celebrity photo?
A For a single photo was $525.
Q And who was that photo or!
A That was of a girl named Sandee Rozzo that was
murdered, and it was for the TV show 48 Hours. And
theirs is just a flat fee. They basically pay
$500. You know, if you have a thousand pictures,
it's the same thing. They just have a flat fee for
anything.
Q Was Miss Rozzo a celebrity?
A Not reaIly. She was a model but -- you know, she
was in national magazines because I put her there.
So she's a celebrity with her friends, but she
isn't a national celebrity, per se.
Q Who would be the most famous celebrity that you've
sold images or!
A Good question. Rolling Stones, Bon Jovi, Ozzy.
Depends on what you consider big.
Q How much do those photos go for?
A But the Rolling Stones.
Q How much did your photos of the Rolling Stones go
for?
A It was the same thing. It was basically $50 a
shot. I'm trying to remember. It might have been
only 35 because a lot of times it's a lot less than
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people assume. And most magazines do not pay what
people think they do.
Q In your experience, where on the celebrity
spectrum, so to speak, would Nancy Benoit fall with
respect to public interest in images of her?
A If it was on a scale of one to a hundred, one, as
in not really much of a celebrity.
Q And were you surprised to learn that Hustler paid
Mark Samansky as much as $1,000 for the images and
background on Nancy Benoit's career?
A Yeah. Actually it really surprised me they paid
that much.
Q Does that seem high to you, given your experience?
A Yeah. I would expect for that it would have been a
flat fee of probably $400, is what I would expect
to have got.
Q Mr. Helton, in your experience, have the
celebrities whose images appear in magazines like
People or In Touch or Entertainment Weekly been
paid for the use of their images in those
publications?
A No, they're not.
Q Who does get paid?
A The photographer. The person who pushes the button
owns all rights to the photo.
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Q And what is your understanding about why the
pictured celebrities are not paid for the use of
their images?
A For the simple reason the photographer owns it.
When you're a celebrity, you give up your rights
basically to be published. You can publish a
picture of anybody basically in anything as long as
it's not representing a commercial product. Say, I
cannot use your picture -- take your picture and
then use it in a picture next to Windex, in their
ad. I cannot do that without written consent.
Anything else is called editorial. You do not need
written consent for editorial.
Q And that's how you have operated throughout your
30-plus-year professional career?
A Yeah.
Q Would that be how - your understanding of how the
national celebrity news magazine industry operates?
A Yeah. I'm exactly sure how it operates.
MR. BAUER: Thank you very much, Mr. Helton.
That's all I have for now. Mr. Decker has got some
questions for you.
THE WITNESS: Okay.
CROSS-EXAMINATION
BY MR. DECKER:
877-702-9580
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Q Mr. Helton, as I said, my name is Richard Decker.
I represent Maureen Toffoloni, who is Nancy
Benoit's mother and the administrator of her
~~~

You do understand that Nancy Benoit is
deceased?
A Yes, I do.
Q You stated that you took some photographs of Nancy
Benoit on the day that Mark Samansky made the video
but that no one has ever published those
photographs; is that correct?
A Right. I've never tried to sell them.
Q You've never tried to sell them, and no one has
ever published them?
A Right.
Q Is that true?
A Right.
Q And you just testified that you still have those
images; correct?
A Good question. I am not sure. I have hundreds of
thousands of images, and one of the studios I had
caught on fire, so a bunch of stuff burnt. So I
really don't know in still have the negatives and
stuff. I've got probably a half million photos.
Q So your testimony earlier that you have the
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negatives is not exactly correct?
A I didn't testifY I had the negatives. I said I
shot the stuff and that I retain everything. I
didn't say whether it had been destroyed or not.
I'm not really sure.
Q So you don't know if you have them or not?
A I'm not sure.
Q All right.
A I would-­
Q One thing is sure, Mr. Helton, isn't it, that you
never obtained a release from Nancy Benoit or her
estate to publish any images of her?
A You don't need a release to publish images.
Q I didn't ask you that. I asked you, did you ever
obtain a release from Nancy Benoit or her-­
A No, 1 didn't.
Q -- ~tate after her death?
A No, I didn't.
Q All right. And your testimony is that you don't
need a release?
A No, you don't.
Q Let me take this opportunity on this record,
Mr. Helton, to advise you that you do not have any
authority to publish any images of Nancy Benoit.
Do you understand that?
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A You're wrong. Look at the copyright laws.
Q But you understand my instruction?
A You're wrong. I have the right to publish
anything.
Q Well, whether you heed my instructions or not, you
hear me loud and clear, don't you?
A Yeah.
Q And let me also advise you that if you do publish
any images of Nancy Benoit, you will be sued in a
court of law. Do you hear that?
A I hear that.
Q All right. The fact of the matter is, you've never
published any images of Nancy Benoit?
A No, 1 haven't.
Q And you do not intend to publish any images of
Nancy Benoit?
A Hadn't thought about it whatsoever.
Q You had nothing to do with Hustler Magazine
publishing images of Nancy Benoit?
A No.
Q You did not encourage or assist Ma rk Samansky in
selling imag~ of Nancy Benoit to Hustler Magazine?
A No, I did not.
Q To your knowledge, did Nancy Benoit or her estate
ever give a release to Hustler Magazine to publish

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images of her?
A Not that I know of.
Q Have you ever sold any material to Hustler

Magazine?
A Not that I know of. I work through an agency in
New York, so not to my knowledge.
Q Have you ever done any work for Hustler Magazine in
any capacity?
A No, I haven't.
Q Or any other company owned by Larry Flynt?
A Not to my knowledge. I don't know what all he
owns, but not to my knowledge. Through my agency
in New York, I could have.
Q Ever work for
A Huh?
Q Ever work for any other pornographic magazine in
any capacity?
A No.
Q Are you aware, Mr. Helton, that in this case the
courts have ruled that Hustler Magazine violated
Nancy Benoit's right of publicity in publishing
images of her without her consent?
A Yeah, I heard that. They're wrong.
Q Do you have any information about the value
realized by Hustler Magazine in publishing images
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of Nancy Benoit?
A Very little. It would be worth very little.
Q Do you have any information about the value
received by Hustler Magazine in publishing the
images of Naney Benoit?
A No.
Q Do you have any information about how much money
Hustler Magazine made in conneetion with its
publishing images of Nancy Benoit?
A No, I don't. But it would have been very little.
Q Do you have any information concerning the
decision-making process at Hustler Magazine
coneerning their publication of the images of Nancy
Benoit?
A No, I do not.
Q Are you receiving any compensation for your
testimony today?
A No, except gasoline.
Q You're receiving gasoline?
A Yeah. They're paying for my gasoline to come.
Q You got your witness fee and your mileage?
A Just mileage, 1 believe. 1 didn't pay that close
attention to it. It said, Here's some money; we
pay for your mileage. And that's all I paid
attention to.
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Q You got a check in the mail for some amount of

money; you don't know how much it was?

A It was $50. Actually I think it was $58 with tax,

I believe. I mean, yeah, I believe it's $58. It's

50 to $58.

Q And that was for your gas?

A Right.

Q And did you talk to anybody associated with Hustler

Magazine about your testimony today?

A Just the lawyers.

Q Which lawyers would that be?

A Both those gentlemen.

Q Mr. Solomon and Mr. Bauer?

A Yes, sir.

Q When did you talk to them?

A They approached me a couple months back and asked

me about the situation and the photogmphs and the

photo session.

Q Is it your testimony that Nancy Benoit did not ask

Mark Samansky to destroy the photographs, or you

did not hear her do that?

A No, she did not ask him.

Q You were with her every day after the photo shoot

up until the day she was killed?

A You know, no, I wasn't. So, yes, there's a chance

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she could have said it to him sometime. But she
didn't ask me, so I'd assume she wouldn't ask him.
Q That's an assumption by you?
A Yes, it is.
MR. DECKER: All right. Nothing further.
MR. BAUER: Thank you, Mr. Helton. That's it.
THE WITNESS: My pleasure, gentlemen. You all
have a good day, I hope.
THE VIDEOGRAPHER: This is the conclusion of
Christopher Lee Helton's deposition. We are going
off the record at 2:54. Thank you guys very much.
THE REPORTER: Mr. Bauer, do you have a
standing order with TSG?
MR. BAUER: Yes, we do. And we'll need the
transcript and video as soon as possible.
MR. DECKER: I'Jl take a regular Minu-Script
copy, but I don't need it expedited, and no video.
(The deposition concluded at 2:54 p.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA

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MAUREEN TOFFOLONI, as
Administrator and Personal )
Representative of the Estate)
of NANCY E. BENOIT,
}
)
Plaintiff,
)

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)

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-v-

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) CASE NO.
) 1:08-cv-00421-TWT
LFP PUBLISHING GROUP, LLC, )
d/b/a Hustler Magazine,
)
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Defendant.)
I. CHRISTOPHER LEE HELTON, state that I have
read the foregoing transcript of the testimony given
by me at my deposition on April 22. 20 II, and that
said transcript constitutes a true and correct record
of the testimony given by me at said deposition except
as 1 have so indicated on the errata sheets provided
herein.

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III

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CHRISTOPHER LEE HELTON
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STATE OF INDIANA
COUNTY OF MARION

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hand and affixed my notarial seal this 25th day of
April, 2011.

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I, Maria W. Collier, a Notary Public in and
for said county and state, do hereby certify that the
deponent herein was by me first duly sworn to tell the
truth, the whole truth, and nothing but the truth in
the aforementioned matter;
That the foregoing deposition was taken on
behalf of the Defendant; that said deposition was
taken at the time and place heretofore mentioned
between 2:34 p.m. and 2:54 p.m.;
That said deposition was taken down in
stenograph notes and afterwards reduced to typewriting
under my direction; and that the typewritten
transcript is a true record of the testimony given by
said deponent;
And thereafter presented to said witness for
signature; that this certificate does not purport to
acknowledge or verify the signature hereto of the
~oo~
I do further certify that I am a disinterested
person in this cause of action; that 1 am not a
relative of the attorneys for any of the parties.
IN WITNESS WHEREOF, I have hereunto set my

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com

Notary Public

My commission expires:
January 13,2017

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NAME OF CASE:
DATE OF DEPOSITION:
NAME OF WITNESS:
Reason Codes:
1. To clarify the record.
2. To confonn to the facts.
3. To correct transcription errors.
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