Taking pictures of fires was free-lance photographer Smittys 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 Jakes 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 womens locker room. After the workout, Marilyn came into the women's locker room for a shower. Smitty took some pictures ofhernaked.

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 Marilyns picture, digitally put a Jake gym shirt on her, and sold it to Jakes Gym. Smitty told the gym that he had Marilyns 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. Jakes 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 Jakes 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 Marilyns sexual relationship with her coach. The story was false and was denied by Marilyn when The Tabloid called her. The Tabloid ran it anyway. Marilyns husband, believing the Tabloid, filed for divorce.

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

Discuss fully using the IRAC approach to legal analysis