January 28th, 2016

Why Muslim Woman’s Suit Against AP for Hijab Photo Will Probably Fail

Fifi Youssef is suing photographer Mark Lennihan and AP for distributing this photograph, shot at a New York City Starbucks,  without her permission. ©Mark Lennihan/AP

Fifi Youssef is suing photographer Mark Lennihan and AP for distributing this photograph of her without her permission. ©Mark Lennihan/AP

A Muslim woman has sued Associated Press (AP) and photographer Mark Lennihan for unspecified damages over the unauthorized use her likeness, claiming violation of her civil rights. The case is a legal long shot, but if she wins, wire services and freelance photojournalists—at least in New York state—would have to get the consent of everyone in the photographs they offer for licensing to publishers.

Fifi Youssef filed suit in a New York State court last week, claiming AP and Lennihan violated her rights of publicity under a state law that prohibits the use of anyone’s name, likeness or voice “for advertising purposes or the purposes of trade.”

According to the claim, Youssef was having coffee in a Starbucks coffee shop on December 16, 2015, wearing a hijab, when she was photographed without her knowledge by Lennihan. The picture shows Youssef staring downward at her cell phone.

Two days later, the image appeared for license on AP’s website, listed “as part of AP’s commerce trade,” according to the suit. Then, on December 21, The Washington Post published the photo as an illustration for an op-ed piece titled “As Muslim women, we actually ask you not to wear the hijab in the name of interfaith solidarity.”

“Clearly, the article attacks [Youssef’s] fundamental beliefs,” Youssef’s lawsuit says.

Youssef says in her claim that AP’s “sale” [ie, licensing for fees] of images—including the image of her—amounts to commercial use, in violation of the state law. But she faces an uphill battle.

The focus of New York’s right of publicity law “on advertising and trade means that a use designed to solicit sales of products or services is forbidden,” says Harvard University’s Digital Media Law Project on its website. “But this category of advertising uses is somewhat narrow [and] contains a long list of exceptions, which include protections for professional photographers against suits by their subjects.”

Nancy Wolff, an intellectual property attorney in New York, says the ruling in the case of Foster v. Svenson established “that the First Amendment trumps privacy and that a license or sale does not make a use commercial.” In that case, New York courts rejected arguments that art photographer Arne Svenson was violating New York’s right of publicity law by offering unauthorized photographs of the plaintiffs for sale in an art gallery.

“I have argued many times that the aggregation, display and offering for sale of images is a right under copyright [law] and outside any state right of publicity law,” says Wolff, who is not involved with the Youssef case, though she has done work for AP in the past. “You only look at the end use to determine if the right of publicity is invoked. Any other position would interfere with the distribution and licensing of images [and] with first amendment uses…No book , magazine or art print could ever be sold without the subjects’ consent.”

Such a result, she notes, “would be absurd.”

Significantly, Youssef did not name the end user–The Washington Post–as a defendant in her lawsuit, because a mountain of case law has given news organizations wide berth to publish images of individuals without permission under a “newsworthiness” exception to New York’s right of publicity law.

Related:
Arne Svenson Exonerated on Appeal in Privacy Invasion Case (subscription required)

What Photographers Need to Know about Model Releases

September 6th, 2012

Owners of Marilyn Monroe Photos Win Big Legal Victory Over Actor’s Heirs

Owners of Marilyn Monroe photographs have won a decisive legal victory in the US Court of Appeals for the Ninth Circuit in San Francisco, which has affirmed that Marilyn Monroe heirs have inherited no rights of publicity to the actress’s likeness.

The decision means that Monroe’s heirs cannot control how images of the actress are used commercially, and cannot demand fees whenever those images are licensed for use on calendars, posters, memorabilia, or other products.

The ruling, issued last week in the case of Milton H. Greene Archives v. Marilyn Monroe LLC, turned on the question of where Monroe was domiciled at the time of her death in 1962: New York or California. California has a law that transfers rights of publicity posthumously to a decedent’s heirs; New York does not.

The appeals court affirmed a lower court decision that said Monroe was a New York resident because her heirs had insisted upon that for 40 years in order to avoid paying California taxes. The courts said the heirs cannot now claim Monroe was a California resident in order to take financial advantage of California’s posthumous right of publicity laws.

The case began in 2005. In 2007, a federal district court in California ruled that no right of publicity law existed in either New York or California at the time of Monroe’s death in 1962. Therefore, she couldn’t have transferred that right to her heirs through her will, regardless of what state she resided in at the time of her death. (The question of her residence wasn’t settled at the time.)

That 2007 decision freed the Milton H. Greene archives to license Monroe photographs without interference from Monroe’s heirs, who are represented by Monroe LLC.

Monroe LLC responded by prevailing upon the California state legislature to pass a posthumous right of publicity law. That law states explicitly that its intent was to abrogate (nullify) the district court’s decision.

With that posthumous right of publicity law in hand, Monroe’s heirs then went back to the district court for reconsideration of the 2007 decision. Upon review, the district court concluded that Marilyn Monroe was domiciled in New York at the time of her death, not California, so New York  law applied in the right of publicity question.

Because New York still has no posthumous right of publicity law on the books, the court ruled that Monroe’s heirs could claim no rights of publicity. (The heirs had tried to get a posthumous right of publicity law passed in New York, as they had done in California, but the New York effort failed.)

With a lot of money at stake–sales of Monroe memorabilia reportedly generated $27 million in 2011, according to the court papers–Monroe’s heirs  appealed the district court’s second ruling to the Ninth Circuit court of appeals.

In a forceful decision, the appeals court upheld the district court’s finding on Monroe’s residence at the time of her death.

“Monroe LLC’s new litigation position that Monroe died domiciled in California, asserted to obtain the benefit of California’s posthumous right of publicity statute, is inconsistent with the preceding forty years of representations on behalf of the estate that Monroe died domiciled in New York,” the appeals court wrote in its decision.

The court continued, “The estate succeeded in persuading numerous judicial and quasi-judicial bodies to accept that Monroe died a domiciliary of New York.

“Judicial and quasi-judicial officers repeatedly accepted and relied upon the estate’s representations about Monroe’s New York domicile.

“The district court concluded that permitting Monroe LLC to assert that Monroe died a domiciliary of California in this litigation would unfairly allow it to obtain a ‘second advantage.’ We agree.”

A district court in New York reached a similar decision in favor of the Shaw Family Archives, which also licenses Monroe images. An appeal of that decision has been pending the outcome of the Ninth Circuit decision.

July 18th, 2012

Celebrity Smackdown II: Shirley Jones Consented to Red Carpet Images, Appeals Court Affirms

A federal appeals court has upheld a decision to dismiss a lawsuit against Corbis by actress Shirley Jones, who charged that the photo agency violated her rights of publicity by marketing images of her without permission. The appeals court also refused to vacate an award of attorney’s fees to Corbis totaling $357,533. The decision was handed down Monday by the US Court of Appeals for the Ninth Circuit in Pasadena, California.

Jones originally sued Corbis in November, 2010, arguing that by offering images of Jones for license on its web site, the agency was making commercial use of her likeness without her permission, in violation of California state law.

In throwing out Jones’s claim last year, a federal district court in Los Angeles signaled that celebrity photo agencies can carry on business as usual, without worry that celebrities can sue them for displaying images for license without consent. (Users of those images still have to get consent if they intend to use the images for commercial purposes, such as to promote products or services.)

“The district court found that Jones consented to Corbis’s placement of sample photographs of Jones on its web site for the purpose of selling copyright licenses to those images,” the appeals court wrote, on its way to affirming the decision from the lower court. “Jones admitted that she intended for the photographs at issue to be distributed to media outlets and was not surprised that the photographers would use a third party distributor. She also admitted that she had not placed limits on how such photographs could be distributed…Jones provides no reason why Corbis should have questioned her apparent consent to her photographs being distributed.”

The appeals court judges didn’t bother to address other defenses Corbis had raised before the district court–including First Amendment rights, Copyright Act pre-emption and public affairs exceptions to right of publicity–because Jones failed to prove Corbis distributed the red carpet images without her consent. In other words, Jones effectively gave Corbis consent, so the court did not have to consider other defenses that Cobis had raised.

When the district court originally dismissed Jones’ claim, the judge ordered her to pay the photo agency’s legal costs. Jones challenged the lower court’s award of $357,533, but the appeals court let the award stand, explaining that the photo agency’s accounting of its costs for defending against the actress’s claims were reasonable.

Related story:
Celebrity Smackdown: Walking the Red Carpet Is Consent, Judge Says