What Happens When Someone Publishes a Photo of You Without Your Permission?
Whether or not someone can capture and publish a photo of you without your consent can depend on the purpose for which the photo is being used. In particular, newspaper photographers are allowed to capture images from public rights of way or to take photos to document a newsworthy event. But what happens when the photo is taken on private property? This question is the basis of a lawsuit recently filed by St. Louis couple Mark and Patricia McCloskey.
During a BLM protest in June, United Press International (UPI) photographer Bill Greenblatt captured a photo of the McCloskeys on their front lawn wielding firearms at protestors. The McCloskeys are now suing both UPI and Greenblatt alleging that the photo, which went viral, was taken on their private property. If a photo is taken on private property it can amount to trespassing. However, a photo taken on public property of private property can be perfectly legal. The McCloskeys are accusing Greenblatt of trespassing on their private property since he allegedly “entered and remained upon land legally owned” by them when he took the iconic photo. The question is whether a sidewalk in a gated community is publicly or privately owned. Regardless, the couple is asking the court to ban the use of the photo and to transfer ownership of the image to them, along with any others captured from their property.
What happens if the photographer profits from the photo? The McCloskeys contend that Greenblatt and UPI have used the couple’s publicity rights, without obtaining consent, for their commercial advantage by selling and offering for sale “t-shirts, masks, and other items,” and licensing “photographs baring the [McCloskey’s] names, images, likenesses, identities, and personas.” The suit also names Redbubble, an online marketplace that prints custom products, for selling merchandise with the couple’s image. The merchandise baring the image often includes “mocking and pejorative taglines or captions,” which has allegedly caused the couple “humiliation, mental anguish, and severe emotional distress.”
While the McCloskeys allege that the use of the viral photo has contributed to their “national recognition,” “infamy,” “humiliation, mental anguish, and severe emotional distress,” the couple has not shied away from the ‘fame’. In August, the McCloskey’s earned a spot at the Republican National Convention where they spoke about gun rights and property rights. In September, the couple caused a social media frenzy by signing and handing out personal greeting cards featuring the photo and captioned “Patty & Mark McCloskey v. the Mob.” In response to the latter event, UPI is currently considering filing a cease and desist order to stop the couple from using Greenblatt’s photo.
The ultimate question in this case is: who has ownership rights over the photo? Remember, journalist photographers are allowed to capture images from public rights of way or to take photos to document a newsworthy event. Whether one of these exceptions applies, giving Greenblatt and UPI ultimate ownership of and rights to the photo, will be up for the court to decide.