By Steven J.J. Weisman
Among the hats I wear in addition to that of legal editor of Talkers magazine is the mortar board of a professor at Bentley University where one of the courses I teach is Media Law. The recently filed lawsuit by the parents of Adam Holland, a man with Down Syndrome has enough media law issues to fill an entire semester. These issues are also important to you as broadcasters, station owners and managers.
The lawsuit which was filed in federal court in Tennessee on April 22nd, contains counts for invasion of privacy, misappropriation of a likeness, defamation, intentional infliction of emotion distress and violation of a Tennessee statute regarding commercial exploitation of a person’s photograph, however I will deal only with the allegations most appropriate to broadcasters.
The case started innocently enough back in 2004 when then 17 year old Adam Holland was attending an art class at the Vanderbilt Kennedy Center, an organization that assists people with developmental disabilities. During the class, a smiling Adam Holland proudly held up a drawing he did with the title “Go Titan” written at the top of the drawing. The Tennessee Titans are the local NFL franchise. An instructor in the program took a picture of Adam holding up his drawing. It was this photograph that eight years later turned up on the website of Tampa station WHTP-FM’s “The Cowhead Show.” However, the photograph had been altered and the photograph of the smiling Adam now showed him holding up a piece of paper upon which was written “Retarded News.” In response to an email from Pamela Holland, WHPT Program Director, Michael Sharkey promptly removed the photograph and sent a letter of apology indicating:
“The segment ‘Retarded News is designed to highlight odd stories that are seemingly always in the news. Stories such as botched bank robberies and failed crimes. These stories are NOT about disabled individuals. However, in our investigation, we noted the picture that he was using did denote a person with down syndrome. We have removed that picture from our page and we are removing any reference to handicapped or disabled individuals.
I apologize for any grief this might have caused. Thank you for your well thought out email, insight into down syndrome and bringing this to our attention.”
The Holland family chose to sue Cox Media Group, the owner of WHTP along with two other unrelated defendants who also used an altered version of the same original photograph. They are seeking a total of eighteen million dollars in damages. To date, the complaint has been filed with the Federal District Court for the Middle District of Tennessee; however no Answer has yet been filed by either defendant, both of which are well within the allotted time for the filing of a response.
The legal issues involved are many and highlight the complicated world of media law in the age of the Internet. Internet Memes is the name for the images, videos, photographs or phrases that rapidly spread throughout the Internet by way of search engines, social networking services, social news sites or video hosting services. Often these memes may be altered for purposes of parody of the original work, a use that is protected in accordance with a long line of court decisions. However, other times there are serious intellectual property issues when an original work is used or adapted for commercial purposes as was the case with the use by WHPT. While the exception to the intellectual property laws of “fair use” may apply when a piece is altered and used, as often is done on the Internet, for non-commercial purposes, this defense does not apply when intellectual property is used for commercial purposes. In this case an initial question is who owns the rights to the photograph? It is unclear as to precisely who took the photograph as well as how it came into the possession of WHPT. What is clear that whenever a radio station uses a photograph or other intellectual property, it is incumbent upon the station to make sure that they are complying with intellectual property laws and are properly authorized to use the photograph. Copyright law provides for the holder of a copyright to be entitled to the profits of the infringer from its use of the photograph as well as possible statutory damages that can be anywhere from $200 to as much as $150,000 depending upon the relative innocence or willfulness of the infinger.
Quite apart from the issue of the particular photograph itself, another legal issue that arises is the use of Adam Holland’s image for commercial purposes without his permission. Tennessee law, similar to the law in other states prohibits the use of a person’s “name, photograph, or likeness in any medium” for commercial purposes. It is therefore important for any radio station that uses a photograph on its website or elsewhere to make sure that they not only have the right to use the particular photograph, but also the permission of the person featured in the photograph. Merely because you may be able to locate a photograph on the Internet and download it for free does not mean that you are exempted from the intellectual property laws and laws protecting commercial exploitation of a person’s name or image.
An interesting aspect to the Holland case that does not apply to other cases that may deal simply with the intellectual property aspects of a photograph is the allegation that the use of the word “retarded” is defamatory. I cannot say whether the word “retarded” may or not be politically correct, however it is a recognized word in the dictionary where it is not indicated to be pejorative. It is defined as “slow or limited in intellectual or emotional development or academic progress.” As indicated in the Plaintiffs complaint, Adam’s Down Syndrome is “characterized by a combination of birth defects, including impairment of certain brain functions and other physical and mental abilities…” Strictly speaking, the word is not defamatory because truth is a defense to defamation. However, it is also true that words that may have been acceptable in the past may now have a sting that even if they are not legally actionable may be unwise to use in civil communication. As professional communicators this is something of which we should be aware because it is the right thing to do regardless of whether the use of a particular word is legally permissible.
The primary lesson for broadcasters from this case regardless of how it is decided is that we all must recognize that even though it is easy to use the Internet to obtain intellectual property without permission, the intellectual property laws still apply and anyone who does not take the proper steps to insure that they have the right to use particular intellectual property before using it, does so at their own legal jeopardy.
Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC. He is also legal editor for TALKERS magazine and publisher of the website www.scamicide.com. He can be e-mailed at: email@example.com. Steven J.J. Weisman is available as a guest to discuss the subjects of identity theft and scams. Meet Steven J.J. Weisman at Talkers New York 2013 on Thursday, June 6.