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.