"Hot Convict" sues for misappropriation

[john_h.1]

<p>One of the most pervasive internet advertisements is a background check company that features a woman in a mugshot arising from a DUI arrest. Many news organizations are reporting her newly filed lawsuit based invasion of privacy. This particular article distinguishes her claim for misappropriation for using her likeness in advertising rather than disclosure of private facts which is a different branch of invasion of privacy law. Most just reference invasion of privacy. Because the mugshot apparently a public record, many commentators are claiming its a frivolous suit because a public record cannot be the basis for a claim of privacy. To be fair, the words "invasion of privacy" sounds like it only relates to private otherwise unknown or unaccessable matters. Many people are also citing her lack of ownership of the image as a reason she has no claim confusing, like many do, copyright law with privacy law. Clearly this is advertising use but not as an apparent endorsement which some jurisdictions distinguish for misappropriation claims. No word that I know of on whether there was any conviction despite media outlets using the" hot convict" label.<br /><br />http://www.tampabay.com/news/courts/civil/zephyrhills-woman-in-attractive-convict-mugshot-files-suit/2167688</p>

<p><p><a href="http://www.tampabay.com/news/courts/civil/zephyrhills-woman-in-attractive-convict-mugshot-files-suit/2167688"><strong>Woman behind 'attractive convict' mug shot sues for invasion of privacy</strong></a></p></p>

<p>Opinions?</p>

<p>(Sorry, I don't know why the link doesn't work)</p>

[lex_jenkins]

<p>Peter Hurley was right. "The squinch" is super effective.</p>

[William Kahn]

<p>"Frivolous" is the word that comes to mind. But, that doesn't mean it won't go to trial. Which will result in many more appearances of the shot in respected media outlets like, <em>National Enquirer</em>, <em>Sun</em>, and maybe even 15 seconds on Fox News. </p>

<p>Wow...</p>

[MichaelChang]

<p>If "Public Record" is a defense, then it can well become the new licence-free image database for advertisers. </p>

[Brad_]

I remember Tom DeLay's booking photo. The only thing missing was an American flag in the background...

[david_l3]

<p>In the US she is innocent until proven guilty when the mugshot was taken. For a company to capitalize on her supposed guilt is wrong. </p>

[andylynn]

<p>I don't have a reliable source of Florida case law, so I couldn't say whether or not this suit is "frivolous" (another technical term that gets misused in the press) but she may well have a case here. In many (maybe all) states, use without permission of a person's likeness in an advertisement is invasion of privacy against that person, regardless of who owns the copyright. In this case, the use also probably portrays the person in a negative light, which (depending on the state) might be an aggravating factor.</p>

<p>I can't predict the outcome of this case, but the lesson is that you can never assume a photo can be used commercially without doing your homework.</p>

[john_h.1]

<blockquote>

<p>"Frivolous" is the word that comes to mind.</p>

</blockquote>

<p>In which way? The legal basis? The level of harm? Something else?</p>

[gary_leonard3]

<p>There is a HUGE difference in using someone's photo likeness for editorial use as opposed using it for advertising and photographers should know the difference. A photographer shooting photos for Time magazine got sued (and lost) when Time used his photo of a nudist apartment complex on the cover. The court ruled that a magazine cover is akin to a poster -- it is advertising. Of course, that was in California. It is most likely different in other states. Maybe.</p>

[Spearhead]

<blockquote>

<p> photographer shooting photos for Time magazine got sued (and lost) when Time used his photo of a nudist apartment complex on the cover. The court ruled that a magazine cover is akin to a poster </p>

</blockquote>

<p> <br>

Have a citation on this?</p>

[sarah_fox]

<p>Irrespective of what the law might say, I think common decency tells us there is something morally wrong about publicizing someone's mugshot without their permission. She didn't even have any option not to model for the photographer that day.</p>

[Spearhead]

<p>Everything connected to an arrest should be a public record. The alternative is far worse.</p>

[andylynn]

<p>"Public record" and "clear to use for any purpose" are two different things. Nobody's claiming a copyright, or that the information that this person was arrested is sealed, but that doesn't mean a company can use the photo in its ad. You might still need a model release.</p>

[AJHingel]

<p>"In the US she is innocent until proven guilty" <br>

David, just for the record, you could add the rest of the civilized world. It is in fact difficult to find a place where it is not the case, as principle, just like in the US.</p>

[mike_earussi1]

<p>Public record doesn't necessarily mean the "public" owns it. If that were the case I could use Tom Cruses' driver license photo to advertise my products without paying him any compensation.</p>

<p>I also believe there is a law stating that public photos can be used without permission for journalistic purposes only, not commercial ones.</p>

<p>I hope she wins her lawsuit. If not, everyone is in danger of having their (or their loved ones') photo misused. </p>

 

[sarah_fox]

<p>I have no quarrel with mug shots and other info being in the public record, such that I can go and access it if I feel a need to do so. My quarrel is with embarrassing or scandalous information being exploited for amusement, entertainment, or commercial purposes. It's not much different from gossip, which I think people will grudgingly admit is an often cruel activity. Of course I will always steadfastly defend a person's 1st Amendment right to gossip or to exploit embarrassing information for entertainment purposes, but I still think it's morally repugnant.</p>

<p>In this case, I think the victim might have a valid legal claim. I hope she prevails.</p>

[ellis_vener_photography]

She (and you) has a right to control how her likeness is used for commercial purposes.

[bobatkins]

<p>I'd say she has a case. It's really got nothing to do with privacy or who owns the copyright on the image or if the image is in the public domain.</p>

<p>You can't (or shouldn't be able to) take a picture of me in the street (perfectly legal to do) and then use it in some sort of advertising campaign (even a public service advertising campaign) without my consent. The same thing should apply to a mugshot.</p>

<p>I'd say the usage is commercial usage and as such requires a model release. </p>

[a._t._burke]

<p>Mr. H... </p>

<p>I’d have sued under Libel. Although truth is an affirmative defense, the defense can be set aside and/or offset if the Libel was meant to or would obviously defame, embarrass etc. , etc., etc. </p>

<p>A. T. Burke</p>

[bobatkins]

<p>I don't see the point of trying to bring a libel suit when there's a much clear case regarding commercial usage of an image without a release.</p>

<p>The statement's they are making are true, there seems to be no malicious intent, or a deliberate attempt to embarrass. I think the chances of making a libel/defamation suit stick are probably slim to none.</p>

[charleswood]

<p>A photographer and a model were too expensive for this company to employ in its advertising campaign? Who's the genius who decided to go cheap on this one?</p>

<p>I suppose there is a public interest in publicizing who released sex offenders are and where they live, and it's the public through its law makers that do the publicizing. I'm offended that a private company used public records in such a way to save a buck. However there may be a public interest in like identification of convicted drunk drivers.</p>

[Damon DAmato]

<p>Clear cut misappropriation for commercial/advertizing use.<br /><br />Florida does have <a href="http://www.dmlp.org/legal-guide/florida-right-publicity-law">"right of publicity"</a> law on the books. <br />"No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without ... express written or oral consent." Fla. Stat. Ann. § 540.08(1).<br /> *******<br /><br />And, yes, plaintiff may pursue statutory and real damages, so this is <em>not</em> a frivolous suit. <br /><br />As the right of publicity has been formally recognized by statute in Florida, decisions generally cite the statutory right over the common law right. See <a href="http://scholar.google.com/scholar_case?case=13631470770057449610&q=735+So.+2d+499&hl=en&as_sdt=2,22" target="_blank">Facchina v. Mutual Benefits Corp.</a>, 735 So. 2d 499 (Fla. 4th Dist. Ct. App. 1999). However, the statutory right does not displace common law rights, so a <a href="http://www.dmlp.org/glossary/8/letterp#term223"><abbr title="In a civil matter, the party who initiates a lawsuit against the defendant.">plaintiff</abbr></a> can simultaneously pursue claims under both the statute and common law. See Fla. Stat. Ann. § 540.08(6).<br /><br /> Under the common law right of publicity, a plaintiff may be awarded nominal damages for the unauthorized use of his or her name without proving actual harm or damage. See Zim v. Western Pub. Co., 573 F.2d 1318 (5th Cir.1978); see also Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).<br /><br /> Under Florida's right of publicity statute, a plaintiff may bring an action for an <a href="http://www.dmlp.org/glossary/8/letteri#term219"><abbr title="A court order requiring a person or entity to do or cease doing a specific action. ">injunction</abbr></a> and to recover damages to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages." Fla. Stat. Ann. § 540.08(2). A victorious plaintiff may receive prejudment interest on the damages awarded. See <a href="http://scholar.google.com/scholar_case?case=14528482102034335844&q=46+So.+3d+42&hl=en&as_sdt=2,22" target="_blank">Bosem v. Musa Holdings</a>, 46 So. 3d 42 (Fla. 2010).</p>

[steve m smith]

<blockquote>

<p>She (and you) has a right to control how her likeness is used for commercial purposes.</p>

</blockquote>

<p>Exactly that. Being either a criminal or an alleged criminal should not remove that right.</p>

[a._t._burke]

<p>Mr. Atkins said......</p>

<p>“I don't see the point of trying to bring a libel suit when there's a much clear case regarding commercial usage of an image without a release.” </p>

<p>ATB: The point I see is that is actionable. One can sue for more than one claim. Suits for multiple claims often overwhelm the defendant to the extent that they settle rather than fight all. It is better to be paid twice than once. Also, if one claim is set aside by the court for good reason or bad the suit can still continue. </p>

<p>and...“The statement's they are making are true, there seems to be no malicious intent, or a deliberate attempt to embarrass.” </p>

<p>ATB: Intent is not required under Libel. The mere fact that a reasonable person would find some type of lessening by publication is spoken to both in the statues and case law cites. </p>

<p>and...“I think the chances of making a libel/defamation suit stick are probably slim to none.” </p>

<p>ATB: We disagree as to Libel. So too would the many people who have either collected out paid out monies in similar circumstances. I had not addressed Defamation which I think would be tougher but not impossible. </p>

<p>A. T. Burke </p>

<p>P.S. Your comments, opinions and product reviews have been a constant source of learned input since you first associated with Dr. Greenspun here on Photonet. </p>

[craig_shearman1]

<p>I'm not a lawyer but... A mugshot and arrest record are public record, and public records can't be copyrighted so there's no copyright issue, so this comes down to a usage issue. If it were a newspaper using the mugshot to report on her arrest, that's editorial use and the subject of the picture has no say in the matter. But since this is advertising, that's a clear-cut commercial use and the advertiser needs a model release from the subject. This is a no-brainer -- as Charles W. suggests they should have hired a photographer and model. Spending a couple of thousand dollars would have saved them exposure from what could be a huge exposure from a lawsuit. Frivolous lawsuits can cost just as much to defened against as legitimate suits.<br>

The newspaper got one line wrong: "This week, however, she indicated she's had enough publicity."<br /><br />Given all the interviews she did, it would look like the lawsuit was filed because the publicity was dying down. She might or might not get some money from the lawsuit, but it definitely gets her name back in the papers.</p>