pageok
pageok
pageok
Chelsea Clinton's Photo on Restaurant Wall:

People have been talking about this story:

The owner of a New York City restaurant is "heartbroken" over a letter he received from former President Bill Clinton's lawyer asking that a photograph of daughter Chelsea be removed from his eatery -— or face legal action.

The photo, taken of the former first daughter with Osso Buco owner Nino Selimaj, has been on display in the window of the Greenwich Village haunt for about five years, the restaurateur said. It was snapped when Chelsea, now 27, was having dinner there with a group of about 30 friends.

But Selimaj said he was shocked when he received a letter from Clinton's lawyer Douglas J. Band on Sept. 18 threatening legal action if the photograph of "private citizen" Chelsea was not taken down. The photograph is still on display near the front entrance of the restaurant -— only now, the letter is posted alongside it.

"We ask that you immediately remove that picture and any and all pictures displaying Ms. Clinton," the letter warns. "We reserve the right to exercise any and all options available to us if you refuse to comply." ...

Here's the quickie legal analysis:

1. The restaurant owner's actions likely violate Chelsea Clinton's "right of publicity." This right is recognized in one or another form by most states, but for our purposes the specific law is N.Y. Civil Rights Law § 51, which gives any person the right to sue over unauthorized use of her "name, portrait, picture or voice ... used within this state for advertising purposes or for the purposes of trade without ... written consent." Here, it looks like the photo is being used for promoting the restaurant to its customers, which makes it "purposes of trade" or perhaps even "advertising purposes."

2. Courts have generally held (and rightly so) that such rights of publicity usually don't block the use of names and likeness in newspaper articles, books, novels, movies, and the like, even though such uses may be for profit and distributed in commerce; the right tends to be limited, largely for First Amendment reasons, to advertising and merchandising (such as T-shirts, coffee mugs, and the like). But a restaurant's decor probably qualifies as a form of advertising or other "commercial speech" (a First Amendment term of art that refers mostly to advertising and similar promotion, not to speech such as a book or a newspaper that is sold in commerce). And while such "commercial speech" is considerably protected by the First Amendment, it's less protected than newspapers, books, and the like. The right of publicity, as applied to such speech, is quite likely constitutional.

3. All this is true, generally speaking, whether Chelsea is treated as a public figure or a private one. That distinction is important for libel cases, but generally not for right of publicity cases (though the damages may differ depending on the market value of the plaintiff's image).

4. As I noted above, New York law — unlike the law in many other states — provides that consent to use one's name or likeness for advertising or trade must be given in writing. This means that even if Chelsea willingly posed for the picture, knowing that the restaurant was taking it to be posted on the wall (far from clear), that's not enough; for the restaurant's use to be legal, there has to be a written permission from her.

5. The one possible defense the restaurant might have is the statute of limitations: In New York, Chelsea would have to sue within one year of learning that the restaurant was displaying the picture; I don't know when that was. (My sense is that the statute would also start running when a reasonable person would have learned that the picture was being displayed — but I suspect that under these facts it's not likely that a reasonable person in Chelsea's shoes would have learned of the picture before Chelsea actually did.)

6. Setting aside the legal question, my sense is that failing to remove Chelsea's picture is pretty rude, and I hope the restaurant owner's customers admonish him to that effect. A restaurant owner should have more respect for the wishes of his patrons; he's gotten five years of free publicity out of Chelsea's visit, and it doesn't seem right to me for him to insist on getting more after Chelsea asks — for whatever reason — that he stop. Conversely, if the first request to the restaurant was the letter, rather than a polite request by Chelsea (I have no idea whether that's so, though Ann Althouse suggests that it might have been), that too sounds a bit rude. On the other hand, if a first request was politely rebuffed, I don't see anything improper about the letter; it seems like a pretty normal nastygram, and one that is reasonably warranted by the facts as they appear.

Bill Poser (mail) (www):
Your analysis seems quite sound, but doesn't it assume that the request comes from Chelsea or her authorized representative? Chelsea may be a daughter but she is no longer a minor. Her father therefore lacks standing. In the absence of an indication that Chelsea has instructed her father's lawyer, which I do not find in the letter, isn't this a meaningless third-party request?
9.27.2007 3:12pm
Tony Tutins (mail):
Clinton's lawyer is apparently not a lawyer. He may end up wishing he had never sent the letter.
9.27.2007 3:21pm
JohnO (mail):
Tony Tutins:

Notice that the letter never says that the author is a lawyer, but rather a "counselor" to Bill Clinton. While the letter appears written to lead a reader to think that it is coming from a lawyer, it appears carefully crafted to avoid making that claim. He could be Bill's life counselor for all I know.
9.27.2007 3:40pm
Anderson (mail):
If she posed for the photo w/ the restaurant owner, didn't she expect that he would display it?

Would it affect the analysis if, when she posed, the walls of the restaurant were festooned with framed photos of the owner with various celebrities dining at his place?
9.27.2007 3:53pm
xxxxx:
The owner said he would take it down if Chelsea requested. I don;t believe she has. Daddy is handling it.
9.27.2007 3:57pm
PLR:
This is all good for the restaurateur, he got way more exposure on Page Six than he had by having her picture in the window.
9.27.2007 4:02pm
John (mail):
I agree with Anderson--there is a decent waiver defense available in the context of a restaurant with many celeb. pix on the wall.
9.27.2007 4:04pm
Davide:
It seems pretty clear that Mr. Band is liable for having committed the unauthorized practice of law.

New York's Judiciary Law § 478 states that "It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney ... or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner ... or to assume, use, or advertise the title of lawyer, ... or equivalent terms in any language, in such manner as to convey the impression that he is a legal practitioner of law or in any manner" unless he's licensed and admitted.

Calling oneself a "counselor," writing on behalf on another, stating that "it has come to our intention" (as if one is acting for another) and threating to use "options" available in the event of a failure to "comply," all look like legal work.

What's interesting is that an aggrieved person can't bring a lawsuit against the "lawyer." He has to ask the NY attorney general to do so.
9.27.2007 4:06pm
steve (mail):
I agree with Anderson. That is a common enough occurrence for celebrities, at least in Hollywood, to know that if you get your picture taken with the owner of a restaurant the owner will display it next to the 200 other pictures s/he has with other celebrities. Did Chelsea in fact eat at the restaurant? Isn't that an endorsement? Recording that event, to me, doesn't seem too big of a deal. Granted, if Chelsea saw the picture up there and wanted it taken down for whatever reason, the nice thing to do is to ask and the nice thing for the owner to do is to oblige. Why does Bill need to strong arm the guy? And isn't Chelsea over 18 years old yet? Whats the deal with dad throwing his weight around in this situation? Thats kind of embarrassing. Does Chelsea still have an allowance too?
9.27.2007 4:06pm
JBL:

Not being a lawyer myself, I'll assume that EV's analysis of the right of publicity is correct. But it's interesting to ponder how this intersects with some other ideas. For example, is there any reason to believe that the photo itself is illicit? As far as I know, the restaurant is enough of a public place that Chelsea didn't have a reasonable expectation of privacy. So it was legal to take the picture, right? It could be used in a criminal investigation, but not for advertising? Is that weird?

Is the photo Selimaj's property, Chelsea's, or both or neither? What about the thousands of pictures that are taken of celebrities every year that end up in magazines? Would it be legal for Selimaj to sell copies of the photo, but not to post it in his restaurant? Is that weird?

If Chelsea has sufficient interest to demand that the photo be removed, can she demand compensation for the years of use? What about the other people in the photo?

On that note, where is the line for what constitutes being in a photo? For example, there are a great many commercial uses of photos of crowded football stadia. Can any one of the thousands of people in the picture sue? Is that weird?

I suppose I can understand Selimaj being heartbroken over the issue; I'm almost headbroken over it.
9.27.2007 4:06pm
Bpbatista (mail):
By consenting to be photographed with the owner of the restaurant, is it not reasonable to infer that she consented, or at least should have known, that her picture would be used to promote the restaurant?
9.27.2007 4:07pm
LM (mail):

it seems like a pretty normal nastygram

Actually, I'd grade it somewhat warm and fuzzy on the belligerence scale of cease and desist letters. First, "We ask that you immediately remove" could just as easily (and routinely) have been "We demand that you immediately remove". Also, the letter ends, "We appreciate your cooperation." That might not qualify as a prelude to romance, but it's certainly optional in a letter of this type, and it probably wouldn't be included, except sarcastically, if any type of nastiness were intended.

On the other hand, if Chelsea already made a less formal request to remove the picture, most good lawyers would have mentioned that in the letter. Of course, if the author isn’t a lawyer, he might not know that.
9.27.2007 4:08pm
New World Dan (www):
Regardless, I see a clear first amendment defense here. Resturaunts routinely post pictures of famous people who have visited, and clearly that's the statement the picture is making. The owner isn't using the picture (as I understand it) outside of that context. Certainly, from a first amendment standpoint, Mr. Nino has a personal right to display the picture.

As to point number 6 above, there is nothing in the letter to suggest that Mr. Band was actually acting on Chelsea's behalf. Usually when a lawyer sends out a letter, the first thing they do is identify who they represent. If Mr. Nino actually recieved a polite request from Chelsea, then yes, I would consider it bad taste to leave the picture up.
9.27.2007 4:10pm
Anderson (mail):
Calling oneself a "counselor," writing on behalf on another, stating that "it has come to our intention" (as if one is acting for another) and threating to use "options" available in the event of a failure to "comply," all look like legal work.

Except that they just don't. Bill Clinton's secretary could've sent that letter over her own name, &it would be fine.
9.27.2007 4:10pm
eeyn524:
So if this turns into a big story, and a newspaper prints a copy of the photo as part of a story (which you already said is protected), can the restaurant owner then post the newspaper article?
9.27.2007 4:12pm
Davide:
Anderson, that would be true if Band signed it, "secretary to Bill Clinton," or,as is common for secretarial work, is Bill signed it himself.

That's not the case here. Band signed it himself. He called himself "counsel to William J. Clinton." Whatever else one might think of the term, using it, in conjunction with a demand to remove a photo on behalf of another, does use "equivalent terms ... to convey the impression that he is a legal practitioner of law." That's the violation.
9.27.2007 4:13pm
Davide:
whoops, "counselor." Distinction without a difference in this context.
9.27.2007 4:14pm
Tony Tutins (mail):
Both Fox News and the New York Post refer to Band as Clinton's lawyer, so Band should be aware of the impression he is giving by calling himself a counselor.
9.27.2007 4:26pm
Mac (mail):
Nino Selimaj Fights for Right to Display Picture of Regis

Nino Selimaj, freedom fighter.Photo: Everett Bogue
Osso Buco owner Nino Selimaj, who recently received a threatening letter from Douglas Band, Bill Clinton's Fonzworth Bentley, that demanded he remove a photo of himself with Chelsea Clinton from the wall of his restaurant, has decided to stick it to the man. According to Selimaj, removing the photo would set a bad precedent. "We have Derek Jeter, we have Regis Philbin, we have Rudolph Giuliani, Danny Glover, Mariah Carey [and] Sopranos [castmates]," Selimaj told this morning's Post. Crazy though he may be, Selimaj seems to be legally in the right.
We checked in with Columbia Law School professor Nathaniel Persily to find out what constitutional rights Seilmaj has. "As long as it was taken with her consent, it doesn't matter if she's a public figure," says Persily. "If I'm out on the street and I take a picture with a willing stranger and put it up in my place of business, there's no problem." Persily finds Band's claim the restaurant is using Chelsea's picture as an endorsement shaky. "She's not endorsing the restaurant. The guy's just proud that he met her and he's putting her picture up." He probably wishes he snapped it after her hair got better, though.

Bizman: Chelsea Picture Stays Up [NYP]

This from the NY magazing Daily Intelligencer.

Just thought I'd add a Colimbia Law Prof. to further muddy the picture.

My question, why would Chelsea care? She has been photographed a kazillion times. What's the big deal. Does she care or is it Daddy? And, why does Daddy care? I am mystified.

And, according to this article, he does have other photos of him with famous people hanging on the wall.
9.27.2007 4:30pm
Bob from Ohio (mail):
Interesting that only written consent is permitted under N.Y. Civil Rights Law §51. Since the remedy is an equitable action, cannot oral or implied consent be a defense?

Bad week for Mr. Band. This and a Wall Street Journal article on his financial involvement with Anne Hathaway's boyfriend. Wonder how much longer he will be an Aid[e} to Mr. Clinton?
9.27.2007 4:32pm
MDJD2B (mail):

Did Chelsea in fact eat at the restaurant? Isn't that an endorsement?


Only if she ate there twice :—). If she got Salmonella and never came back, her eating there oce means nothing.

BRW I have eaten there on a number of occasions. It is an inexpensive to moderately priced restaurant with a friendly atmosphere and good, but not great food served in family sized portions for sharing. It is a fun place to go in a group of 6-10. The signature dish is osso buco, of course.
9.27.2007 4:35pm
davod (mail):
Maybe the picture includes someone the Clinton's do not want to be associated with.
9.27.2007 4:38pm
Dilan Esper (mail) (www):
I don't think that there is any First Amendment doctrine on point, but there certainly should be a First Amendment defense here. The restaurant is just saying that Chelsea ate there, which is truthful speech.
9.27.2007 4:42pm
Anderson (mail):
OTOH, what if he ran TV commercials for his restaurant, with the Chelsea pic?
9.27.2007 4:50pm
LM (mail):

Is the photo Selimaj's property, Chelsea's, or both or neither?

Presumably, Selimaj's.

What about the thousands of pictures that are taken of celebrities every year that end up in magazines? Would it be legal for Selimaj to sell copies of the photo, but not to post it in his restaurant?

Assuming Selimaj owns the copyright in the photo (an assumption I wouldn't make), he can copy and sell it to his heart's content, so long as he doesn't boldly caption it with the name of his restaurant.

Is that weird?

Not really. Selling pictures that don't otherwise infringe someone's rights (e.g., invasion of privacy, defamation) is Constitutionally protected. As EV explains, although there's tension between Sec. 51 and the First Amendment, using the picture to advertise or promote a separate venture falls under the less stringently protected "commercial" speech, so the statutory restriction probably passes Constitutional muster.
9.27.2007 4:54pm
Davide:
As to the merits of the right of publicity claim, I don't think it's as strong as EV claimed in his quickie review.

Most importantly, under NY law, Sections 50 and 51 of the Civil Rights Law require that there be more than an incidental connection between the appropriation of a plaintiffs likeness and the main purpose of the work in order to maintain a claim for invasion of privacy. Thus, In D'Andrea v. RaflaDemetrious, the court held a hospital's use of a medical resident's picture in its recruiting brochure was not an invasion of his right of privacy as the use was incidental to the main purpose of the brochure, which was to provide information about the hospital's programs to prospective employees.

Thus, I'd think that if Osso Bucco's owner has a bunch of photos of himself with various people (as is often the case at restaurants) it might be hard to show that the use was anything other than incidental. It really seems like quite a stretch to claim that he's trying to make money primarily or mainly off of Chelsea's face. In any case, that's not present in the facts known now.

Next, on a technical level, the law can only be enforced personally by the individual who has the publicity right.
An heir, parent or other asignee can't exercise it.
So, "counselor" Band can't do so. Nor can Pres. Clinton. This is a minor point, but would likely get dismissal of the action in the first instance if Bill brought the suit.
9.27.2007 5:00pm
Davide:
Ah, I see Mac, above, provided the necessary info. As I thought, the owner used the photo incidentally. He has many such photos snapped of celebrities. Chelsea's is just one of a bunch. That's going to be an incidental use and there likely no claim under Secs. 50 and 51 of the NY law.
9.27.2007 5:03pm
LM (mail):

The restaurant is just saying that Chelsea ate there, which is truthful speech.

Really? When you look at a celebrity pic on a restaurant wall, isn't it safe to assume the food was at least palatable? Do you think Magic Johnson poses for a snapshot with a dry cleaner who shrunk his cashmere sweater?
9.27.2007 5:07pm
Tony Tutins (mail):
Really? When you look at a celebrity pic on a restaurant wall, isn't it safe to assume the food was at least palatable?

"Chelsea Clinton ate here -- and lived to tell the tale!"
or "Chelsea Clinton was too kind-hearted to turn down my request for a picture."
9.27.2007 5:21pm
MDJD2B (mail):
Really? When you look at a celebrity pic on a restaurant wall, isn't it safe to assume the food was at least palatable?

No-- there are a number of restaurants that are celebrity haunts that have a reputation for mediocre to bad food.

But when there are a bunch of celebrity photos it implies that a bunch of celebrites eat there. That, by itself, makes people who lead lives of quiet desperation want to eat there. First, they can tell themselves they have something in common with celebrities. Second, they might spot one.
9.27.2007 5:45pm
Dave N (mail):
I agree with many of the above posters. Chelsea Clinton is an adult. If she requests that the photo be removed, the restaurant should honor her request out of politeness, not some kind of legal duty.

Because Chelsea is an adult, Bill lacks standing to complain. Chelsea has her own life to live. Sadly, many parents (yours truly included) have discovered that fact when our offspring pass the magic age of 18.
9.27.2007 5:48pm
PatHMV (mail) (www):
I'm with Davide. This is such a common practice in restaurants across the country that I don't think that it will be seen as tantamount to an endorsement, a "commercial use" of the photo. It's much more akin to simply recording and reporting who has eaten in the restaurant.

Had the owner done more than just hang it in the window along with other such photos, it might be a different story. Certainly if he ran that picture as an ad for the restaurant in some guide to New York eateries, that would violate Chelsea's rights. But as a simple record of who ate in the restaurant, displayed to other patrons of the restaurant, I think that looks much more like "editorial use" of her image (as that term of art is used in the relevant cases).
9.27.2007 5:50pm
PatHMV (mail) (www):
As to the propriety of heeding "Chelsea's" request, I'd point out that there is no evidence that Chelsea actually made the request. Chelsea's father's "counsel" made the request/demand, and never once in his letter did he purport to be making the request/demand on behalf of Chelsea, only on behalf of her father.

While I'm fairly certain that Chelsea will not publicly dispute her dad's letter, I'm not at all convinced that she was actually the one seeking to have it removed. There's been no allegation so far that she went by, asked the owner to remove it, and was refused. To the contrary, the owner said very clearly that if Chelsea asked it to be removed, he would certainly do so.
9.27.2007 5:52pm
AK (mail):
My sense is that the statute [of limitations] would also start running when a reasonable person would have learned that the picture was being displayed -- but I suspect that under these facts it's not likely that a reasonable person in Chelsea's shoes would have learned of the picture before Chelsea actually did.

I would think that a reasonable person posing for a photograph in a restaurant that had walls festooned with photographs should know that the photograph would be going on the walls within a few days.
9.27.2007 6:01pm
dearieme:
And you guys are going to elect ClintonII. Dear heavens.
9.27.2007 6:02pm
LM (mail):

And you guys are going to elect ClintonII.

From your mouth to God's ears.
9.27.2007 6:17pm
BT:
Question regarding Clinton's lawyer. He apparently is not licensed in NY, but is in fact licensed in another state(s). Can he legally make this request of a NY establishment? Or is this letter meaningless? I await enlightenment.
9.27.2007 6:17pm
PatHMV (mail) (www):
BT... the letter would be meaningless whether it was sent by a lawyer or not. People are easily impressed/worried by letters from lawyers, but a letter from the lawyer is not legally different than a letter from any non-lawyer. A threatening letter carries no special legal standing just because it was written by a lawyer. It is intimidating only because it signals that the offended party has the resources and connections to retain a lawyer and pay him to write the letter, and thus signals a much higher risk of a lawsuit following than would a letter signed by the client themselves.

Without being familiar with the specifics on New York law regarding practice of law without a license, I'm not aware generally of any requirement that a letter like this be sent by a lawyer as opposed to any other representative of offended individual. It doesn't look like the practice of law to me.

It would be practicing law if he advise Bill or Chelsea about the legal merits of their claim and whether the owner had a legal right to display the photo or not.
9.27.2007 6:43pm
Duffy Pratt (mail):
Putting the letter next to the picture may raise a first amendment issue, even if there was none beforehand. I assume, as the presumptive next First Lady, everything Bill does is political.
9.27.2007 6:44pm
Davide:
Technically, the answer to this question is fairly clear.

Judiciary Law section 460 states "An applicant for
admission to practice as an attorney or counsellor in this state, must be examined and licensed to practice as prescribed in this chapter and in the rules of the court of appeals." Thus, one can't act as an attorney in NY without being admitted in NY.

That's why one has to hire a NY lawyer to handle matters in NY (just as one would have to hire a CA lawyer to handle CA matters).

There are special rules that permit out of state lawyers to appear as a matter of courtesy in in-state matters, but prior specific permission has to be sought and obtained from a judge beforehand.

All that said, the issue seems much less worrisome if Brand is in fact a lawyer. In corporate matters, it's not uncommon to have out-of-state lawyers (and law firms) work on deals in other states all the time. But this really looks like a threat of litigation letter, and that's usually a different story. So, bottom line: probably wrong, but if he's a lawyer, maybe not such a big deal.
9.27.2007 6:45pm
Sean O'Hara (mail) (www):

But a restaurant's decor probably qualifies as a form of advertising or other "commercial speech"


Wouldn't it make a difference where the photo is displayed -- if it's in the front window where a passerby would see it and think, "Hmm, $famous_person ate here. I should give it a try" that would be clearly advertising, but if it's inside the dining area where people can only see it after they've sat down to order, that seems different.
9.27.2007 6:53pm
PatHMV (mail) (www):
Davide, I'm not in private practice anymore, so I haven't been following it, but aren't there a proposed or new ABA rule dealing specifically with corporate lawyers?

I remember looking at helping a friend in another state with their music business; they were having trouble with getting releases signed by all the musicians during the recording process, etc. I looked at it and decided that if they made me an officer of their corporation (or LLC, I don't recall which), then I could handle those kind of contracts and negotiations as a corporate officer rather than as an attorney. Just as an individual has a complete right to handle his own affairs without a lawyer, the corporation can do so without a lawyer, as well.

As for this letter, as Ann Althouse pointed out, the actual threatening language is so vague and wishy-washy (though ominous sounding) that I think it would pass scrutiny on that aspect.
9.27.2007 6:55pm
BT:
Davide and PatHMV:

Thanks.
9.27.2007 6:57pm
PatHMV (mail) (www):
Sean, placing it in the front window definitely brings it closer to advertising, but it's not definitive. If she's the only one, and she's placed, for example, directly adjacent to the sign saying "Try our osso buco!", then that might be enough to make it commercial speech (speech which invites one to enter into a commercial transaction). But if the owner just keeps a selection of photos in the front window, perhaps rotating them with the interior photos, and the photos are not overly large, then I think it probably wouldn't be considered advertising. Context will be crucial.
9.27.2007 6:58pm
Mac (mail):
I still don't understand the motivation on the part of Bill C.

Could it be that Hilary has him on such a short leash to avoid any scandals that he has way too much time on his hands?
9.27.2007 7:08pm
David M. Nieporent (www):
In terms of the NY right of publicity statute, let's not forget the Second Circuit's ruling in Rudy Giuliani's bizarre attack on New York magazine; it's not directly applicable here, but it does illustrate that the Constitution restrictions the scope of said law.

Incidentally, if sending C&Ds were actually considered UPL, half the lawyers in the U.S. would be disbarred.
9.27.2007 7:23pm
Davide:
David N.,
Yes, if he's an admitted lawyer somewhere, then I think it's not a big deal. It would a much bigger deal to me if he were not a lawyer at all.

PatHMV,
While I think there's a technical argument that such conduct would not be appropriate (e.g. corporations cannot represent themselves in court; they must be represented by counsel as a general rule) I don't think anyone would quibble with a corp officer/LLC officer acting on on the corp/LLC's behalf in negotiating releases etc. And if they did, I don't think they'd get far. I believe this sort of thing is commonly accepted practice these days.
9.27.2007 7:35pm
metrocontractattorneys (mail) (www):
When Chelsea Clinton posed for the picture, she was authorizing its use in the restaurant. I mean, the restaurant is full of such pictures. She can't claim she didn't know what it was for.

Wow, now I remember what heavy-handed, scorched-earth, Clinton politics are like. A 24-hour war room full of spin-meisters. Do we really want 4 or 8 years of this junk?
9.27.2007 7:41pm
PEG (mail) (www):
She should obviously have the right to have the picture taken down.

What shocks me is that BILL Clinton's lawyer sent the letter. Chelsea is an adult (and besides, one who works at a hedge fund and can definitely afford as good a lawyer as anyone). Why would she have gotten Daddy to use his lawyer to do something as trivial as this?
9.27.2007 7:58pm
metrocontractattorneys (mail) (www):
Why would Chelsea have the right to have the picture taken down?

When she posed for the picture, she was authorizing its use in the restaurant. The restaurant is full of such pictures. She can't claim she didn't know what it was for.
9.27.2007 8:01pm
The General:
wasn't there a Seinfeld episode like this?
9.27.2007 9:08pm
Toby:
I suspect that this is an example of the "Thomas More" principle that seems to surround the Clintons (and many others). Person of Authority mutters "will no one rid me of this annoying pest" and minor knights ride off that night to kill him.
9.27.2007 9:54pm
Jeremiah (mail):
The statute of limitations would not provide a complete defense because the display of her photo is a continuing wrong. By analogy, the statute of limitations for copyright infringement is three years, but if the defendant has continued to infringe within the three year period, the statute of limitations does not bar the plaintiff's claim. See e.g. Roley v. New World Pictures, 19 F.3d 479, 481 (9th Cir. 1994). Here, the statute of limitations would not preclude Chelsea from recovering damages occurring within the past year, as well as damages that continue to occur.
9.27.2007 10:03pm
Duffy Pratt (mail):
Thomas More got his head chopped off by Henry VIII after a trial. He refused to take an oath the King tried to force on him.

Thomas Becket is the one you are thinking of. Assassins killed him after Henry II said something like: "Will no one rid me of this meddlesome priest?"
9.27.2007 10:27pm
Duffy Pratt (mail):
BTW, what are the damages here? How has this use of Chelsea's picture harmed her? If its not a question of harm, then are the Clinton's simply trying to get her paid for her modeling? What's the going rate for the ugly puss of an ex-President's daughter on the wall of some restaurant in NY?
9.27.2007 10:29pm
Mac (mail):
Here, the statute of limitations would not preclude Chelsea from recovering damages occurring within the past year, as well as damages that continue to occur.

Jeremiah,
Indeed. Damages for what? How has she been damaged or harmed? The guy admires her. She is a public figure. Her photo is among other reputable celebreties. How has she been damaged?

This is part of my mystification with this whole thing. I wonder if they approached the guy for a campaign contribution and he refused? It just seems so very strange.
9.27.2007 10:33pm
Eugene Volokh (www):
Jeremiah: I'm pretty sure that the single publication rule would prevent the result you describe. The question then would be whether she learned of the display within the last year, and not whether the display has continued into the past year.
9.27.2007 10:36pm
Jeremiah (mail):
Eugene: Interesting point, although the single publication rule generally applies only to mass communications. The intent being to limit damages where, for example, a defamatory statement is published in a national newspaper. I don't believe the rule would be applicable here, but I'm not an expert on New York law.
9.27.2007 10:55pm
Jeremiah (mail):
And I forgot to add that even if the SPR did apply, the rule would not bar Chelsea's claim because the single publication -- i.e. the initial posting of the photo on the wall -- has continued uninterrupted to the present day.
9.27.2007 11:34pm
Bill Poser (mail) (www):
Jeremiah and Eugene,

It looks like Eugene may be right in New York. This article discusses a 2002 case from the New York Court of Appeals, Firth v. State, in which a former state employee claimed to have been defamed by a report of the Inspector General posted on a state website. The site was subsequently modified by the addition of unrelated material. Firth filed more than one year after the appearance of the allegedly defamatory post, but less than a year after the modifications to the site. He argued that the modifications to the site constituted a new publication and reset the limitations clock. The court ruled for the defendant, holding that the suit was barred by the statute of limitations. This seems to show that in New York the continued posting of an unchanged article does not constitute a continuing offense and that the statute of limitations runs from the date of initial posting.

I guess that it is still possible that this has to be distinguished from the present case if the single publication rule applies only to mass communications. Of course, as a country boy, putting something in a window in New York City seems like mass communication to me. :)
9.28.2007 12:43am
Markxxx (mail):
Jeez, what a bunch of lawyers (law students?). Eugene got it right when he said it was plain rude.

The guy disingenuously claims Chelsea was like a member of his family, that he was heartbroken to get the letter. If that were true, he wouldn't be making this a public issue.
9.28.2007 1:24am
PatHMV (mail) (www):
Markxxx, why is it rude for the guy to decline to take it down until the actual, adult subject of the picture asks her to take it down. The author of the letter didn't even claim to be making the request on Chelsea's behalf.

It's really a bit misogynist to automatically assume that her father (or her father's "counselor") was speaking for her or had any right to speak for her. If she approved of having the picture up and her father disapproved (maybe it shows too much cleavage), should the restaurant owner heed her wishes or her father's? Obviously, she's an adult, and it would be demeaning to her to defer to her father's demands instead of her own decision.
9.28.2007 2:35am
gasman (mail):

Setting aside the legal question, my sense is that failing to remove Chelsea's picture is pretty rude, and I hope the restaurant owner's customers admonish him to that effect.

The only part of the matter that could be construed as rude would be the legal letter making veiled threats. Polite would have been a simple letter or phone call from Ms. Clinton herself thanking Mr. Buco for his continued enthusiasm then gently requesting that the picture be removed. In exchange for this favor, perhaps then one of the non-private citizen Clintons would send an autographed photo or other memento (I have a replica Constitution signed by my senators).
Then if after normal pleasantries of human interaction don't get the job done, should the lawyers be set loose. Why is it lawyers cannot avoid making threats? It just leaves everyone feeling bad. Then Ms. Clinton, private citizen, gets her reputation drug through forums like this because she has failed to act as a private citizen in her interaction with Mr. Buco.
9.28.2007 12:14pm
Tony Tutins (mail):
Although there are camp counselors and career counselors, the unmodified "counselor" is a common synonym for lawyer. If Band had not wanted to create the mistaken impression he was Clinton's lawyer he could have called himself Clinton's advisor. Googling "Douglas Band" and "Clinton's lawyer" shows he has left this mistaken impression before.
9.28.2007 12:15pm
c. l. ball:
Under the NY privacy statute he can sell the picture. He could also be charged with a misdemeanor for displaying it, if EV's analysis is correct. But given that restaurants regularly have publicity photos on walls like this, it seems like a weak case. It would be one thing if he published an ad with the picture there, or displayed it in the front window, but if it is on a wall next to other such celeb photos..?

Indeed, why is WJC's office sending this letter?
9.28.2007 3:53pm
Bacchus (mail) (www):
I just don't see how this restaurant owner can be slammed for lack of politeness (even if he is from New York City and thus presumptively deficient in it).

I run an adult blog. I display and link to (among other things) porn. In 2007 America, this means I get hate mail. Specifically, I get letters from people I have linked to who feel tarnished by the link. Because I link to porn, and because I link to them, they feel like I'm calling their stuff (whatever it may be) "porn", and they don't like it, and they want me to take down my links.

Sometimes, if they ask nicely, I comply.

But if I get a letter from some third party? "You shouldn't link to so-and-so, that's not porn, you're a creep, you really should take down that link!" Yup, I do get letters like that. But I don't think politeness requires that I answer them, much less do as they ask.

On its face, the letter has no connection with Chelsea. It doesn't even purport to be on Chelsea's behalf.

What if one of the Conspirators got a letter from John Lott's mom asking them to stop mentioning John on this blog? Complying with the request would be bizarre, not polite. That's how this strikes me.
9.28.2007 4:14pm
Toby:
Duffy Pratt

Good catch, and correct of course.
9.29.2007 6:42pm
Bill the Kat (mail):
What do you get when you cross a bad politician with a crooked lawyer?

Chelsea Clinton.
9.30.2007 2:51pm
tsotha:

Why is it lawyers cannot avoid making threats? It just leaves everyone feeling bad.



I assume that's not necessarily a bad thing in private practice. How many billable hours are there in a situation where the parties shake hands and part amicably?
10.1.2007 7:22pm