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.

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.

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

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