HOME
          
LATEST STORY
Ken Doctor: The New York Times’ financials show the transition to digital accelerating
ABOUT                    SUBSCRIBE
Jan. 24, 2013, 9:30 a.m.
mugshot-sites

A court case against those skeezy mugshot websites raises First Amendment issues

In going after mugshot sites, a plaintiff in Toledo is seeking to make the right of publicity extend to non-endorsement uses of people’s images.

Editor’s note: The mugshot exploitation industry — sites who obtain arrest mugshots through public records, post them online, and then seek money from the arrested in exchange for taking them offline — is about as morally dubious a line of business as the Internet’s yet produced. But a court case in Toledo that seeks to take down these sites is advancing a legal claim that — if courts were to agree — could also have a significant impact on legitimate journalistic endeavors by reframing the so-called right of publicity to include public records. (A number of legit news sites run mugshots — a worthy subject of debate and probably disdain — but they don’t add the extortion-esque element of taking payment to take the photos down.)

You’ll hear a lot more about in the unlikely event that the case would ever head down that road, but it’s still worth knowing about now. Our friend Jeff Hermes, who runs the Digital Media Law Project (née Citizen Media Law Project) at Harvard’s Berkman Center, wrote a piece about the case, which we’re republishing here. Go see Jeff’s original post if you want to see the full legal citations of the cases he’s discussion.

Before the holidays, Wired reported the filing of a putative class action in Ohio against a group of privately owned websites that allegedly collect and publish mugshot photos, and then charge those whose photos appear exorbitant amounts to have the photos removed. The lawsuit is premised on the right of publicity — that is, a person’s right to control the commercial exploitation of their name or likeness.

I have little sympathy for the so-called “mugshot racket,” but using the right of publicity as a method of attack has some issues. Ordinarily, the right of publicity is invoked to prevent the exploitation of an individual’s persona without permission through use of a name or photograph for promotional purposes. For example, the right prevents the unauthorized use of a celebrity’s likeness in advertising to falsely suggest the endorsement of a product. In that sense, the right of publicity reflects the positive value that can accrue to an individual’s identity through the individual’s efforts, and gives the individual the ability to control how that value is used. According to the Ohio Second District Court of Appeals (James v. Bob Ross Buick):

The value of the plaintiff’s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.

It is not enough to state a violation of the right of publicity that someone’s photograph was made the subject of a commercial transaction. Rather, a violation occurs when the name or likeness is used to suggest an endorsement or other association between a person and a product or service. This concept of endorsement is built into Ohio’s right of publicity statute, Chapter 2741 of the Ohio Revised Code, which states that it does not apply to the

use of the persona of an individual that is protected by the First Amendment to the United States Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.

For that reason, I am concerned by the invocation of the right of publicity in this case. The claim does not relate to the value of individuals’ likenesses for the purpose of promotion or publicity, but the value to the individual of keeping the public from learning about negative events in the past.

To be sure, case law on this point is not without its anomalies. For example, the U.S. District Court for the Northern District of Ohio once allowed a right of publicity claim to survive a motion to dismiss filed by an expert witness who modified photographs of children to demonstrate to a jury how child pornography could be manufactured. The defendant’s motion to dismiss argued that the images he generated were commercially worthless; the court’s two-sentence analysis of the claim suggested that the photographs had commercial value by the fact that the expert was paid to create them. However, the brevity of the analysis and the fact that it appears in an unpublished federal decision make this case weak support for extending Ohio’s right of publicity.

On a more general level, the reliance upon rights of publicity as a basis for a claim against these websites represents an attempt to shift the focus from the content of the sites (which would generally be protected under the First Amendment, because they reveal truthful and public information) to the coercive monetary transaction proposed by these sites. This is an entirely reasonable effort, as it is the commercial aspect of these sites that is truly offensive. However, this lawsuit apparently misconceives the right of publicity as relating to the transaction — the fixation of a dollar amount to the name or likeness — when the right more properly relates to whether the underlying content takes advantage of a person to convey a particular message of endorsement.

For that reason, reliance on rights of publicity in this context appears to be misplaced. But again, the underlying concept of focusing on the coercive nature of the transaction at issue seems sound. There are laws intended to address unfair behavior, including blackmail/extortion statutes and so-called “Little FTC Acts” that prohibit unfair and deceptive trade practices. Whether such theories are available under Ohio law is a question for another day, but one well worth exploring.

Jeff Hermes is director of the Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society.

POSTED     Jan. 24, 2013, 9:30 a.m.
SHARE THIS STORY
   
Show comments  
Show tags
 
Join the 15,000 who get the freshest future-of-journalism news in our daily email.
Ken Doctor: The New York Times’ financials show the transition to digital accelerating
The numbers may look flat, but they contain a continuing set of ups and downs. Up next: executing on a year’s worth of launches.
Before the “teaching hospital model” of journalism education: 5 questions to ask
It’ll take a new generation of academic leadership — willing to incur the wrath of faculty, the greater university, alumni, industry, and analysts — to break through the old ways we train journalists.
Controlled chaos: As journalism and documentary film converge in digital, what lessons can they share?
Old and new media types from journalism, documentary, and technology backgrounds gathered at MIT to share practices and discuss mutual concerns.
What to read next
1020
tweets
The newsonomics of the millennial moment
The new wave of news startups is aiming at a younger audience. But do legacy media companies have a chance at earning their attention?
803A mixed bag on apps: What The New York Times learned with NYT Opinion and NYT Now
The two apps were part of the paper’s plan to increase digital subscribers through smaller, targeted offerings. Now, with staff cutbacks on the way, one app is being shuttered and the other is being adjusted.
413The new Vox daily email, explained
The company’s newsletter, Vox Sentences, enters an increasingly crowded inbox. Can concise writing and smart aggregation on the day’s news help expand their audience?
These stories are our most popular on Twitter over the past 30 days.
See all our most recent pieces ➚
Encyclo is our encyclopedia of the future of news, chronicling the key players in journalism’s evolution.
Here are a few of the entries you’ll find in Encyclo.   Get the full Encyclo ➚
GateHouse Media
San Francisco Chronicle
Windy Citizen
Publish2
Time
The Guardian
Charlottesville Tomorrow
Ars Technica
The Awl
Baristanet
The UpTake
The Chronicle of Higher Education