Liability for unauthorized picture use?
posted by Kaimipono D. Wenger
I recently heard about a blog scandal involving a “fake” blog. Some bloggers got together and, for kicks, created a fake blog. They created fake identities for the blog, and wrote fake stories about fake lives. They originally intended this to be an experiment in participatory fiction; when the ruse was discovered, many readers responded angrily.
An interesting legal question arises out of these bloggers’ use of photos. In order to create identities, the participants went online and searched through google images until they found realistic looking photos for their characters. The photos they used were of unknown provenance, and (with one exception) it is probably all but impossible for most people to trace them to their real source. Each photo was matched with a bio to create the fictional characters.Biographical information (“favorite move: Star Wars”) matched with the photo creates the illusion of reality.
The site’s participants have stated that no permission was ever sought (or obtained) from the photos’ real owners. Do the real people whose photos were used to create these fictional identities have any legal cause of action against the bloggers who appropriated their images?
Based on my own (imperfect) understanding of privacy and tort law, it seems there are several potential claims that might be raised, though I don’t know how strong any of them are.
1. False light. False light is a tort arising from intentional publicity casting another person in a false light. The elements of false light vary from jurisdiction to jurisdiction, but in general, the tort requires publication of information about a plaintiff, which places the plaintiff in a false light, made with “actual malice,” and which would be highly offensive to a reasonable person.
I don’t think that there’s a particularly strong false light case here. First, we’re in the gray area on whether information has been published about these people. Second, I don’t think there’s actual malice here — the behavior is more like recklessness. Third, I don’t think that any of the bloggers’ misrepresentations make their photos look bad in a way that is highly offensive to a reasonable person. (In contrast, if I just pull a photo off the internet and write “this is my next door neighbor and he’s a child molester” that would be false light.)
Some of the blog characters were obnoxious, but I don’t think that any of them were highly offensive, and so I don’t think false light liability would exist.
2. Right of publicity. If any of these people are famous, or become famous, there could be a right of publicity claim. For example, if they had scooped up pictures of Brad Pitt or Nicole Kidman for their little bios, they could certainly expect a letter from those stars’ lawyers. Those people have a right to any profit from the use of their images. Others’ unauthorized use might damage their ability to profit from their images.
I don’t know how strong a case against the bloggers would be on this ground. They deliberately chose unknown images. If all of the people they impersonated are just college students, there may be no real monetary damages. Also, the site was non-profit.
3. Invasion of privacy. The elements here will again vary highly from jurisdiction to jurisdiction. In general, there are two possible torts here: Embarrassing disclosure of private facts, and a sort of “intrusion upon privacy” tort. The ability of a public figure to bring either of these torts is very limited.
The bloggers didn’t discuss any private facts about the people whose images they used — they didn’t even know private facts about these people — so that claim is probably out.
Is this intrusion on seclusion? Maybe. This tort also usually requires an intrusion that would be highly offensive to a reasonable person.
4. Intellectual property violations. If the images are copyrighted, the copyright owners might bring a claim.
5. Finally, there are a grab bag of other torts that could come into play. Intentional infliction of emotional distress, interference with business or personal relations, loss of consortium. All potentially applicable given the right set of facts, but all very much longshots.
Based on these torts, I don’t see any strong cases for liability (though there are enough gray areas and maybes here that I would not be at all comfortable if I were in those bloggers’ shoes).
It is also possible that a court would find liability based on a new cause of action. Some scholars have suggested expanded recognition of invasion of privacy torts, or the adoption of general torts recognizing intentional or reckless harm to others. In addition, legal protection of privacy is an area of the law that is in constant development.
One of the blog’s characters was sufficiently obnoxious that some of the site’s fans created a T-shirt with his image. It would be ironic if the photo’s real owner saw his own face on someone else’s shirt, and had no legal recourse.
UPDATE: Certain identifying information removed.
October 29, 2005 at 10:34 pm
Posted in: Intellectual Property
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Responses (6)
Copyrightus Maximus - October 29, 2005 at 11:48 pm
Re. Point #4, how could the images not be copyrighted? Since the glorious reforms of the 60s, any work fixed in a tangible media is copyright protected. So, at best, these bloggers might have a so-called “fair use” defense.
KipEsquire - October 30, 2005 at 8:23 am
You’re overlooking the most relevant tort of all, “Appropriation.” See Restatement of Torts (Second) Section 652C (and Section 652 generally for an overview of privacy torts).
Daniel J. Solove - October 30, 2005 at 11:19 am
False light (or perhaps libel) would probably be the best cause of action. There’s actually a dispute as to whether false light requires actual malice if the plaintiff is not a public figure. The Supreme Court case of Time, Inc. v. Hill which held that the tort of false light requires a showing of actual malice, was decided before Gertz, the Supreme Court libel case that held that private figures need not prove actual malice. There’s a circuit split right now on whether the Gertz rule applies to false light cases. I believe that the clear better approach is that the Gertz rule applies. The Restatement’s formulation of false light unfortunately lists actual malice as an element. But consider Restatement (Second) of Torts §652E comment d:
Appropriation would be a tougher case, but is potentially winnable. One problem is that the use here is not for the commercial exploitation of their identities. Rather, the pictures are used to illustrate their fictional story. The individuals’ photos are not being used to endorse anything. Nevertheless, one could argue that although the defendants are not gaining a commercial advantage, they are gaining a benefit, and courts haven’t always limited the benefit in appropriation cases to commercial ones.
In Messenger v. Gruner + Jahr Printing and Publishing, 208 F.3d 122 (2d Cir. 2000), Young and Modern magazine used an unrelated girl’s photographs to illustrate a story about a girl who got drunk at a party and had sex with three men. A pull out quote in the story said: “I got trashed and had sex with three guys.” Very upset because she had nothing to do with the story, the girl sued, but the court held that because the photograph illustrates an article on a matter of public interest, the plaintiff must lose.
The same thing happened in Arrington v. New York Times, 434 N.E.2d 1319 (N.Y. Ct. App. 1982) where a man’s photo used to illustrate a story about the black middle class. The man didn’t agree with the article, but the court held that his image illustrated the story. In Finger v. Omni Publications Int’l, 566 N.E.2d 141 (N.Y. Ct. App. 1990) a family’s photo used to illustrate a story about caffeine-aided in vitro fertilization. The family had nothing to do with in vitro fertilization, but the court held a photo of a large family illustrated the story.
However, in Spahn v. Julian Messner, Inc., 233 N.E.2d 840 (N.Y. 1967), the court held that a fictional work about baseball player Warren Span was an appropriation. Although a non-fictional biography would not be appropriation (newsworthy), the fictional portrayal was different.
What makes the fake blog Kaimi speaks about different, however, is that it is not trying to trade upon the value of the people’s personalities. So although it is fictional, it might differ from Spahn in this way. The book about Spahn’s marketability depended upon the fact that it was about Spahn. Not so with the individuals whose photos were used in the fake blog.
That’s why the fake blog presents an interesting appropriation case — it doesn’t quite fit with the tort, but there’s certainly a decent argument for the plaintiffs.
However, I believe the stronger case might be for false light or libel. Although the fake blog was fiction, it apparently was masquerading as the truth. Libel would only be available if the fake life stories were harmful to the people’s reputations. False light, however, would not require reputational harm — just that the plaintiffs suffered some kind of distress as a result.
Copyrightus Maximus — the copyright in photos is held by the people who snapped the photo, not by the people depicted in the photo. So if the individuals whose photos were used actually took their own photo (or purchased the copyright to them), then they might have a claim. Otherwise, the photographer might have a potential claim, subject to fair use, but not the people in the photos.
John Cowan - November 4, 2005 at 9:50 am
It occurs to me with respect to invasion of privacy that some of the false facts associated with the people in the pictures might turn out to be true after all.
There is a Nero Wolfe mystery that turns on this point. A clever blackmail scheme involving the threat of publishing false but highly damaging facts (sexual harrassment of a doctor’s patient, in one case) about a variety of people falls apart when by sheer coincidence the false fact turns out to be true — and due to particular circumstances entirely unknown to the blackmailer, puts the victim in mortal peril. Result: one dead blackmailer.
Carol Peterson - August 22, 2006 at 6:48 am
To whom it may concern:
My name is Carol Peterson. I recently found an unauthorized picture of my grandson, in the August 2006 issue of People magazine. The picture is associated with the Oscar Meyer company. I would like to pursue a lawsuit. May I ask you for a suggestion? I would appreciate a prompt response.
Sincerely,
Carol Peterson
Helena - October 13, 2006 at 1:42 pm
I am so glad I stumbled across this subject. Maybe you can advise me on a current matter; my previous employer took a picture off of my desk of my 9 year old daugher and used it in one of thier print ads which is a national trade publication. I was never asked if her photo could be used and did not find out that they put her in an ad until someone brought the publication to my attention. What can I do about this?
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