Gay? Straight? A Model’s Dilemma

by Scott Stiffler

EDGE Media Network Contributor

Sunday November 2, 2008

Did you hear the one about the male model who didn't like people looking at his pictures?

It seems like the set up to a bad joke. But in reality, it's the premise of a lawsuit against Genre magazine that has models, lawyers, publishers, and gay fans of models in barely-there tighty-whities in a grand old tizzy.

Violation of Rights?

Self-proclaimed straight model Benjamin Massing, who was featured in the March/April issue of Genre, is suing the publication along with photographer Rick Day. Shortly after a photo session with Day (done, Massing asserts, to acquire shots for his private portfolio), scantily clad photos appeared in Genre (whose gay-as-a-picnic-basket vibe and marketing strategy is undeniable). Shortly after that, Massing filed a lawsuit. It claimed personal damages in the form of being hit on by gay men as well as the perception that his presence in Genre implied Massing has lavender leanings. The resulting fallout has likely caused more damage to Massing's reputation and viability as a professional model than the Genre photos ever could.

The week after he filed the lawsuit, Massing fired off a missive to the website, asserting that his legal actions were based on "unauthorized use, distribution and publication of my image" - and not the vengeful doings of a homophobe. Massing wrote: "Numerous media outlets focused on the fact that these images appear in a publication geared toward the gay community. Based upon these reports, some have mischaracterized me as homophobic, which could not be further from the truth. The real issue is I never signed a release or gave permission to use or alter my pictures for adult-themed media. . .the use of my image in a sexually explicit way without my permission violates my rights."

Attorney Andrew Buzin, of the Jacob D. Fuchsberg Law Firm, is working on the Massing case with attorney Liah Catanese. They've both stopped doing interviews with the media - and are likely responsible for Massing's low profile. A wise move, perhaps, since his public statements only increased the perception that he was, at best, filing an opportunistic lawsuit - and at worst, is a homophobe.

Also closed-lipped about the whole affair is photographer Rick Day (whose representative formally refused to be interviewed by or issue a comment to Edge). Even notorious publicity hound and Genre editor Neal Boulton has refused to talk to the media. An October 2, 2008 posting on Queerty noted that both Boulton and Genre publisher William Kapfer actually denied their knowledge of the lawsuit.

In the midst of the public relations nightmare that followed the announcement of his lawsuit, Manning received support from a high-profile presence in the gay publishing community - as noted in a September 30, 2008 Queerty positng. Jeff Woodward, associate publisher of the beloved and often profane NYC-based fag rag Next, sent a note proclaiming "Ben's a friend of mine. . .and straight. . .but as far as you can get from homophobic. . .He is a Florida friend of Next's owner's boyfriend who is also from Florida. He would always hang around the Next offices when he was up in NYC doing shoots and auditions and all the boys here loved him."

Now before you go labeling that statement as smoking gun proof of Manning's secret homosexuality or not-so-secret homophobia, note that Woodward goes on to state "I haven't spoken to him in a while, but can assure you he's not the idiotic homophobe he's being portrayed as. He's a sweet funny kid who is going to go far. He knows the gay boys like to look at him and could care less about how that is perceived."

But it's that last sentence that sticks in the craw of so many in the gay community. Why would a man who is comfortable palling around with gays and "could care less" about how he's perceived file a lawsuit as retribution for appearing in a gay-friendly publication like Genre? Sadly, everybody who has a good answer for that one has stopped talking to the press.

The model in question.

Just Eye Candy?

Before the Ben Massing brouhaha, Queerty felt the wrath of another male model scorned. Josh Peters was once the featured stud on its Morning Goods section. Every day, the page gets your AM motor running with come hither beefcake photos of scantily clad guys who could, if asked nicely, open up a beer bottle by flexing their six packs. Although never identified as gay, their perfect hair, pouty lips, provocative poses and occasional nude shots all but scream "Mary!."

Massing is also a former Morning Goods boy - yet the site remains unserved in legal matters pertaining to Massing's pinup presence. Maybe that's why Queerty editor Andrew Belonsky was willing to speak to us.

Belonsky is at least a little sympathetic and willing to give Massing the benefit of the doubt on the question of homophobia. Talking about the impact of such photos to a model's reputation, Belonsky states: "It all depends upon where this model is coming from and if they think being associated with a gay website is defamatory - in which case they have bigger problems than getting their career off the ground."

Commenting on the lawsuit (which many have found to be unnecessarily homophobic), Belonsky says: "I'm not sure the language of the lawsuit is indicative of how Massing felt about the situation or if his lawyer worded it in that way to build a stronger or more controversial case. The fact of the matter is he went to a lawyer which indicates he is uncomfortable with where his photos are being posted. It also indicates that this boy did not do his research. Because if he did, he would have been familiar with the photographer's work and known he would pose in provocative positions." Given the realities of the modeling profession, Belonsky says that Massing is: "being na?ve possibly about what a model is. People in the industry take these shots for what they are. It's something they take very nonchalantly. It's not like he was sucking dick in a movie. He was just eye candy."

A Legal Leg to Stand On?

Whether or not Massing's actions are na?ve given the nature of his chosen business, there's still the question of legal viability. Randy M. Friedberg, an attorney and partner at the law firm of Olshan Grundman, heads up the intellectual property and entertainment group.

He represents agencies, talent and clients who hire the talent - and says that it all boils down to whether or not a release form was signed. If so, it's pretty cut and dry in favor of the photographer and the magazine. If not, Massing could have a case.

Friedberg: :When you hire a model, you have them sign general form releases which say I'm going to take your picture, and pay you X amount of dollars for X number of years of use and in X media. It gives very broad rights to the person paying the money. Most models, especially male models who are not valued as much as female models and are much more interchangeable; (they) don't have the leverage to push back or limit those releases."

Without the status or savvy to get approval rights over the ads or limit where and when their images can be used, models usually end up signing the standard release forms, taking the money and hoping the photos lead to more work. Arguing on the grounds of privacy or publicity rights is moot, since "The whole idea of a release is you give those rights away."

The disputes applicable to this case that Friedbeg has been involved in have all revolved around "use of images after release has expired. A few years back, there was a dispute about whether general form releases that included print also included Internet/online." But nowadays, Friedberg says every release includes the phrase "All technologies now known or hereinafter created." or words to that effect. That phrase effectively has the model give up rights to the use of their photos in any new media technology that emerges after the shoot."

Photo: Massing's Morning Goods.posting on Queerty

A Straight’s Defense

Does Massing deserve our sympathy - or, at the very least, or empathy? It's difficult to muster up the strength to support somebody who not only won the genetic lottery, but decided to make a career out of their God-given, albeit gym-enhanced looks.

Dave Pounder, porn actor, producer and creator of He's been modeling since 2001 and producing porn since 2003. The way he's avoided misuse of his image so far is to be vigilant about what companies he works for and what paperwork he signs.

In 2002, Pounder was approached by a company "who wanted to take a sample photo set of me to see if they could get me work. After the shoot, they wanted me to sign a release form. I knew that company had dealt with both straight and gay clients and as a result I wanted a clause added to the release form that said these photos would not be used for gay distribution." When the company refused, "I ended up not signing the release form and just walking away."

Pounder based his decision to stay away from the gay market partly on the fact that he is not gay and does not do "gay for pay" work: "Many male models, including myself, refuse to do solo masturbation scenes because we know the content will end up being marketed to gay people, and we don't want to be perceived as gay."

The reason, he says, is not internal homophobia, but the perception of women working in the straight porn industry: "A girl may say I don't want to work with that guy because he did gay stuff, even though that may not be the case. There are many girls that refuse to work with these performers. They don't want to know a guy's penis has been in another guy's ass and now he's doing a scene with her."

Even when it involves a male model doing a solo masturbation scene that ends up being marketed to the gay community, "He might be perceived that way and people might say don't use this guy, he's gay; even though he's not."

Pounder says that among producers in the straight porn industry, "There's still a stigma. When I book a guy for a scene, I'm likely to be biased towards using a straight guy because it's a lower risk profile for the girl that's doing the scene."

Still, Pounder sees a gradual shift, citing the fact that "Things have changed today where more and more people are crossing over and doing gay for pay.?Christian is a performer who works consistently on the straight side and openly admits to working on the gay side as well. Kurt Lockwood recently made a public announcement about doing bisexual scenes. Some producers won't use them, and some will because of that. But overall, I'm seeing more and more acceptance of bisexuality on the male side. I think it's going to become more accepted."

Photo: Straight porn star and producer Dave Pounder

Scott Stiffler is a New York City based writer and comedian who has performed stand-up, improv, and sketch comedy. His show, "Sammy's at The Palace. . .at Don't Tell Mama"---a spoof of Liza Minnelli's 2008 NYC performance at The Palace Theatre, recently had a NYC run. He must eat twice his weight in fish every day, or he becomes radioactive.