Posted by Eugene Volokh:
Same-Sex Couple Sues Over the Unauthorized Political Use of their Wedding Photo:
Here's an excerpt from [1]the press release:
A $25 million lawsuit was filed today against right-wing front
group USA Next and political consulting firm Mark Montini
International for stealing an Oregon couple�s wedding photo and
using it without permission in a high-profile gay-bashing ad
designed to drum up support for social security privatization. . .
.
The suit alleges that the use of the couple�s image without
permission constituted an invasion of privacy, was libelous,
violated their right of publicity and constituted an intentional
infliction of emotional distress.
In one version of the USA Next ad disseminated widely on the
Internet in February, and aired repeatedly by television news
programs and newspapers nationwide, the couple�s image,
superimposed with a green checkmark, is side-by-side a picture of a
US soldier with a red �X� across it. Below the photos is the phrase
�The REAL AARP Agenda.�
This seems to be the ad:
[aarp.gif]
I've read the [2]Complaint and the case seems like a pretty clear
loser:
1. The plaintiffs claim that the ad libeled them and placed them in a
false light by "stating directly or by implication that the
plaintiffs are unpatriotic American citizens who do not support
the United States military while our nation is at war." But I
don't think reasonable viewers would understand the ad that way.
They would understand the ad as claiming (whether accurately or
not) that the AARP doesn't support the military enough. They would
understand the ad as implicitly claiming that gay marriage is bad
(an opinion that can't form the basis for a libel claim). But
nothing in the ad suggests to reasonable viewers that the men
don't supporting the military. So there's no false statement about
the plaintiffs, and thus no libel or false light claim.
2. The plaintiffs claim that the ad appropriated their likenesses in
a way that benefited USA Next and Montini commercially. But
political ads, even ones that help raise money for a group (or
that earn the political consultant money), are treated as fully
protected speech under the First Amendment, and not as the less
protected "commercial speech." Such political ads are also
generally not covered by the misappropriation of likeness tort,
just as other fully constitutionally protected but commercial uses
-- news reporting, biography, fiction, and so on -- are not
covered. The misappropriation tort generally covers, with very few
exceptions, only commercial advertising (rather than political
advertising) and merchandising, such as T-shirts, action figures,
and the like.
The closest case I've found to this is [3]Battaglieri v. Mackinac
Center for Public Policy, a Michigan Court of Appeals case from
2004 that involved the unauthorized use of a person's name
(whether it's name or likeness doesn't matter) in a political
fundraising ad. And the court held that the ad was
constitutionally protected against a misappropriation tort claim,
even though "it was also a clear request for charitable
contributions to support [defendant's] work."
Also, though the lawsuit was filed in the District of Columbia,
the general rule in misappropriation cases is that courts should
apply the law of where the plaintiff lives. Here, that's Oregon,
and the leading Oregon case on this -- Anderson v. Fisher
Broadcasting Companies, Inc., 712 P.2d 803 (Ore. 1986) -- reads
the misappropriation tort quite narrowly, basically applying only
when the defendant "exploits a distinctive economic value of an
individual's identity or image beyond that of other similar
persons for purposes of associating it with a commercial product
or service." I don't think that USA Next would be covered by this
definition, since it's selling political ideas, not a commercial
product or service.
3. The plaintiffs' invasion of privacy claims are just their false
light claims and their appropriation claims; for historical
reasons, both of these torts have often be labeled "invasion of
privacy." They have no separate claim of invasion of privacy by
wrongful disclosure of private facts. I think Oregon courts
probably don't recognize such a claim, see Anderson; publishing a
photo of people kissing in public isn't treated as such an
invasion of privacy, Gill v. Hearst Pub. Co., 253 P.2d 441 (Cal.
1953); and in any case the plaintiffs aren't making such a claim.
4. The plaintiff's intentional infliction of emotional distress claim
is also a pretty clear loser. Courts generally limit the tort to
outrageous conduct, and set the outrageousness bar quite high; I
doubt this would qualify as outrageous enough. Moreover, when the
claim involves speech on matters of public concern, courts
generally reject the claim on First Amendment grounds. (The
Supreme Court has only held that [4]statements about public
figures on matters of public concern are generally immune from
emotional distress liability under the First Amendment, and that
decision didn't speak about statements about private figures on
matters of public concern. But its logic would apply equally to
such private-figure public-concern statements, and lower courts
have indeed rejected emotional distress liability in such cases.)
5. Curiously, the strongest claim against USA Next would be a
copyright claim brought by the copyright owner, which seems to be
the Portland Tribune newspaper (or perhaps the photographer, if he
was a freelancer and kept the copyright). But the copyright owner
isn't suing (though it suggested that [5]it might); the maximum
damages in the copyright case would be $150,000, not $25 million;
and USA Next would have a decent fair use defense (though it's
hard to evaluate the likely strength of the defense, given how
vague the fair use doctrine is).
So my sense is that the gay couple should lose, and will lose if the
case comes to court, and USA Next will and should win. I sympathize
with the plaintiffs' upset here, and I think it was rude for USA Next
to drag the plaintiffs' picture into a political cause that they don't
support. But, at least setting aside the copyright question, USA Next
was behaving within its legal and constitutional rights.
References
1. http://www.wiredstrategies.com/lawsuit/release2.pdf
2. http://www.wiredstrategies.com/lawsuit/complain.pdf
3. http://www.michbar.org/opinions/appeals/2004/031804/22511.pdf
4. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=485&invol=46
5. http://www.portlandtribune.com/archview.cgi?id=28641
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
