Same-Sex Couple Sues Over the Unauthorized Political Use of their Wedding Photo:

Here's an excerpt from 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:

I've read the 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 support 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 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 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 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.

Judge Issues a Probably Unconstitutional Prior Restraint

in the USA Next gay wedding photo case, at least if this blog account is accurate.

The judge issued a temporary restraining order against further airing of the ad, apparently on the theory that the ad infringes the same-sex spouses' right to control the use of their likenesses (the right of publicity or the right to block misappropriation of likeness). I argue below that the right of publicity doesn't cover the use of people's likenesses in political ads, and I remain quite confident of that. But even if the plaintiffs potentially have a good damages claim, an injunction of such political ads before a trial on the merits — based not on a final judgment that the speech is unprotected but on a mere finding of likelihood of success — is an unconstitutional prior restraint.

Mark Lemley and I give more details in this article. I should say that some lower courts have authorized such preliminary injunctions in the past, but I think they were quite mistaken as a matter of First Amendment law. I hope USA Next promptly appeals; they have a very strong claim here, both under the First Amendment and under substantive right of publicity law, which is on their side.

Thanks to David Kravitz and Jason Walta for pointers to the story about the injunction.