Reference no: EM13716177

Taking pictures of fires was free­lance photographer Smitty's favorite passion. Hehad a police dispatch radio in his home and whenever a call came over relating to afire, Smitty would go to the stated location and shoot pictures. At 9:00 p.m. oneevening, a call came over the radio reporting a fire at Jake's Gym. Smitty drove tothe gym and noticed Olympic runner Marilyn Martin standing just outside thebuilding with her arm around a woman. Marilyn happened to be working out with hercoach (the woman who she had her arm around). The fire was a false alarm andpatrons were soon allowed to reenter the building. Smitty followed the fireman intothe building and hid in the women's locker room. After the workout, Marilyn and hercoach came into the locker room for a shower. Smitty took some pictures of the twowomen naked. Marilyn, who was about to begin her third year of college, had just returned fromcompeting in the Olympics where she received much publicity. Smitty took Marilyn'spicture, digitally put a Jake gym shirt on her, and sold it to Jake's Gym. Smitty toldthe gym that he had Marilyn's approval to do so and that Marilyn consented topermit the gym to show the enlarged picture in their window as an endorsement ofthe gym. Jake's Gym believed Smitty and proudly displayed the picture in their frontwindow with a sign underneath that said "Join our gym today. Look who endorsesour gym." The college that Marilyn attends believes Marilyn had intentionallyendorsed Jake's Gym, a violation of NCAA rules, and t