Defamation by PhotoShop?
posted by Frank Pasquale
At 25, you have the face heredity gave you; at 50, you have the face you deserve; and at Fox News, your features depend on whether you’re a friend or enemy of the network. Or at least that’s how Jacques Steinberg and Edward Reddicliffe must feel after Fox aired doctored photos of them on its news show.
Note that the normal photo was not shown on Fox News; the distorted image was presented as the face of Steinberg. (I’ve embedded the full clip below the fold.)
Can such a distorted depiction give rise to a defamation action? Obviously if the picture were a cartoon, and/or the program a satire or non-news program, creative license lets just about anything go (though some particularly egregious images have sparked resistance). But does a news program have a special obligation to “objectively” present images? And, returning to defamation, is it possible to argue a) that the distorted image is a “lie” about the person it depicts and b) that ugliness (that which distortion seeks to convey) is actionable as something damaging to the person whose image is distorted?
a) As for the idea of “lie” here, consider these arguments about the infamous “darkened OJ Simpson” image on the cover of Time Magazine:
The image on Time was digitally manipulated, making OJ darker and heavily shadowed (in juxtaposition to Newsweek['s image]). . . . Although Time claimed it was a “photo illustration” that served to “show the tragic downfall of an American football hero,” other folks disagreed. Time was charged with: (1) perpetuating the stereotype of “violent” black men; (2) suggesting OJ was guilty; (3) applying digital manipulations to a “news” photo–apparently a real no-no in journalism . . . [But Cara A.] Finnegan . . . challenges those who think the image serves as a “visual argument,” which she defines as a “set of premises, identifiable in the image, leading to a conclusion which is itself present in the image” (236).
Compare the idea that “OJ is guilty” to “Steinberg is ugly.” What does the puff-chinned, big-eared, grotesque-nosed Steinberg image “argue” here? Glenn Greenwald might assimilate it to what he calls “the dominant media theme for the last two decades in our political discourse:”
What matters is that Democrats and liberals are weak, effete, elitist, nerdy, military-hating, gender-confused losers . . .and who merit sneering mockery and derision. Republican right-wing male leaders are salt-of-the-earth, wholesome, likable tough guys — courageous warriors and normal family men who merit personal admiration and affection. . . . [In our] press corps, fantasy easily trumps reality. And our media stars thus . . . cackle in derision at the Democratic weaklings and losers.
Greenwald’s analysis, backed up at length in his latest book, articulates a possible “message” in the Fox News photoshopping. But is it really communication, or manipulation? And if the latter, does it not fit more under the rubric of “subliminal advertising” than defamation?
b) Another challenge to a defamation suit might be whether the image is genuinely harmful to the person’s reputation. The closer one looks at it, the more obvious it becomes that the proportions of the face are impossible. But note that the clip was shown very briefly in its original context, leaving no time to scrutinize it.
What about “ugliness” is “damaging”? Enlightened individuals judge others on the basis of the content of their character, not their looks; but in this respect America may be becoming less enlightened every day. Here some perplexities raised in recent cases about allegations of homosexuality may be relevant. The question is whether, in an increasingly tolerant society, being alleged to be homosexual is still libelous. Two recent cases come out in diametric opposition:
Klepetko v. Reisman, 41 A.D.3d 551 (N.Y. App. Div. 2007) (“The false imputation of homosexuality is “reasonably susceptible of a defamatory connotation” )
Greenly v. Sara Lee Corp., 2008 WL 1925230 (E.D. Cal. 2008) (“[c]ontinuing to characterize the identification of someone as a homosexual [to be] defamation per se [demeans the lives of homosexual persons]“.)
To continue the analogy: just as sodomy laws were only repealed gradually, only in the early 1970s were certain “ugly laws” repealed. One such law ordered that “‘No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person [is] to be allowed in or on the public ways or other public places in this city . . . under a penalty of not less than one dollar nor more than fifty dollars for each offense.”
In conclusion; I imagine that a defamation case would be a tough one for either Reddicliffe or Steinberg, but admittedly I have not researched “defamation by distorted image.” Edward Tufte has documented the damage that “fudged photos” can do to science, but it’s not clear that much can be done about them in the political public sphere.
So what’s to stop the unflattering depiction, already a mainstay of negative political ads, to gradually morph into the photoshopped truthiness Fox has pioneered? Perhaps the only answer is to fight fire with fire; Olbermann might air the work, say, of Kenneth Tin-Kin Hung . . . :
(Hung, still from Because Washington is Hollywood for Ugly People)
One thing is clear: if one side in politics adopts the tactic with impunity, the other side has clearly not read its Schmitt and Niebuhr if it decides merely to “turn the other cheek.”
PS: Here is the clip in context:
And here is Reddicliffe’s transmogrification:
July 5, 2008 at 10:50 am
Posted in: Media Law, Movies & Television, Privacy, Race
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Responses (4)
Joe Miller - July 5, 2008 at 3:38 pm
Frank,
Let’s not forget copyright …
I imagine the person who owns the copyright in the photos has a cause of action for the unauthorized preparation of a derivative work. Not much of a fair use argument, given the same facts you highlight (purporting to be a routine headshot, not a spoof, etc.), is there?
Best,
Joe
Rhonda R Shearer - July 6, 2008 at 8:27 am
I enjoyed this posting. Thank you.
Since NY Times reporters are public figures the bar is much higher for defamation claims than for regular citizens. However, public figures still control the commercial exploitation rights for their “image and likeness.”
The intentional negative degrading of their likeness (likeness, in this case, is an asset and has value for a public figure) may be actionable for the reporters and their bosses as “tortious interference” defined as “The causing of harm by disrupting something that belongs to someone else.”
Also, Fox also obviously knew before publication that they were degrading these reporters image and likeness before publication–which could conceivably be considered malice (under the Sullivan vs NY Times definition.)
In addition, a “false light” defamation claim could be made where the bar is lower and the reporters can claim subjective damages (they feel injured) in addition to the more objective defamation claims of monetary damages from “tortious interference” and the harm to their image and likeness.
Full disclosure. I am not a lawyer but have worked with investigating media misconduct for the past 5 years. Much of this includes looking at the harm done to MsM victims and what legal recourses they have. In my defense of daring to speak on legal matters: one of my reports is cited by the Federal Trade Commission (FTC)as key to their legal case and enforcement — for them as well as numerous State Attorney Generals.
See some of our cases at http://www.stinkyjournalism.org
which is part of our not-for-profit Art Science Research Laboratory co-founded by me and my late husband Stephen Jay Gold. Go to http://www.asrlab.org
Jon Garfunkel - July 7, 2008 at 12:08 am
I’d just demur from Rhonda above. The “public figure” test from Gertz v. Welch comprises (a) ability to rebut, and (b) voluntary exposes oneself to scrutiny. Putting aside (a), Steinberg and Reddicliffe, as print reporters, do not expose their images to the public. But then, what about reporters who are regular TV guests?
I’d suggest a different standard which I could not find while skimming through the relevant pages in Solove and Friedman. There’s the problem of “damaging first impression.” The D.F.I. the heart of the reason for victims of defamation to collect. A public figure has already made a “first impression” on the news-watching public, and then should be relatively unharmed by a photo-caricature.
I’m not a lawyer either, so I suspect that the most artful response would come from Keith Olbermann on Countdown.
Rhonda R Shearer - July 7, 2008 at 1:32 pm
Hi Jon,
The problem was there was no disclosure that these images were photo cartoons. They were passed off as portrait
photos of the two reporters.
Nowadays with all the cross media platforms, the NY Times reporters names, likenesses and “intellectual production” are all fused and are clearly assets of value. Look at the correlation between best sellers and NY Times reporters–it’s impressive. They are hawking their wares even in the middle of network news programs in disguise as “news.” (Much to my dismay, of course).
If image and likeness is an asset, then “first impression” does not seem relevant
in the approach I suggested. Any lawyers have opinions on this?
A lawsuit against FOX would be great fun in the sense that discovery would likely reveal what the heck happened at FOX (FOX has clammed shut–no response so far). Was it a couple of FOX summer interns who did the photo shop.. and graphics just took the faces from the watch dog cartoon as separate images without thinking? I suspect something like this scenario happened?
I have been threatened with lawsuits a couple of time–like from the corporate giant CIT. I always
say “please do sue me [for libel]; I can’t wait to go to discovery.” In CIT’s case, I would have loved to have gotten their auditor’s records. In defending against a libel action, it is said that the widest leeway is given defendants by judges for their discovery requests since the only defense of libel is truth.
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