Taking pictures of fires was free-lance photographer Smitty’s favorite passion. He had a police dispatch radio in his home and whenever a call came over relating to a fire, Smitty would go to the stated location and shoot pictures. At 9:00 p.m. one evening, a call came over the radio reporting a fire at Jake’s Gym. Smitty drove to the gym and noticed Olympic runner Marilyn Martin standing just outside the building with her arm around a man. Marilyn happened to be working out with her coach (the man who she had her arm around). The fire was a false alarm and patrons were soon allowed to reenter the building. Smitty followed the fireman into the building and hid in the women’s locker room. After the workout, Marilyn came into the women's locker room for a shower. Smitty took some pictures of her naked.

Marilyn, who was about to begin her third year of college, had just returned from competing in the Olympics where she received much publicity. Smitty took Marilyn’s picture, digitally put a Jake gym shirt on her, and sold it to Jake’s Gym. Smitty told the gym that he had Marilyn’s approval to do so and that Marilyn consented to permit the gym to show the enlarged picture in their window as an endorsement of the gym. Jake’s Gym believed Smitty and proudly displayed the picture in their front window with a sign underneath that said “Join our gym today. Look who endorses our gym.” The college that Marilyn attends believes Marilyn had intentionally endorsed Jake’s Gym, a violation of NCAA rules, and the college canceled her athletic scholarship. Smitty also sold his nude photos to The Tabloid with a story about Marilyn’s sexual relationship with her coach. The story was false and was denied by Marilyn when The Tabloid called her. The Tabloid ran it anyway. Marilyn’s husband, believing the Tabloid, filed for divorce.

Can Marilyn assert a defamation claim against Smitty, and or The Tabloid and will she be successful?