Liability for unauthorized picture use?

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6 Responses

  1. Copyrightus Maximus says:

    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.

  2. KipEsquire says:

    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).

  3. 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:

    If Time v. Hill is modified along the lines of Gertz v. Robert Welch, then the reckless-disregard rule would apparently apply if the plaintiff is a public official or public figure and the negligence rule will apply to other plaintiffs.

    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.

  4. John Cowan says:

    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.

  5. Carol Peterson says:

    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

  6. Helena says:

    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?