Gun-Toting Couple Sues Photographer For Privacy Violation Over Photo They Used As Christmas Cards, After He Billed Them

from the a-roller-coaster dept

You've heard of Mark and Patricia McCloskey by now. They are the St. Louis couple who waved guns at various protesters who entered their gated street in the process of marching to the nearby mayor's home, demanding the mayor's resignation. The McCloskeys seem to have quite the reputation as not the greatest of neighbors, and seem to have very strong opinions about their property.

The pictures and videos of the couple waving guns around dangerously at protestors got lots of attention, and they were indicted last month -- though Missouri's governor has indicated that he would pardon the couple if convicted. The McCloskeys have leaned into their newfound national fame, and even spoke at the Republican National Convention this past summer.

In late September, the couple was confronted by more protestors as they left a printshop. As they went to leave, Mark McCloskey handed one of the protestors what they were apparently picking up at the shop: Christmas cards with one of the famous photos of themselves and pointing their guns at protestors, captioned as "Patty & Mark McCloskey v. The Mob."

The main photo that was taken was taken by UPI photographer William Greenblatt, and a few weeks ago, UPI announced that it was "looking into" the issue. Then, last week, it came out that Greenblatt had decided to send the couple a bill for $1,500 for their use of the photo.

The letter reads:

Dear Mr. and Mrs. McCloskey:

My name is William Greenblatt, a photographer with United Press International here in St. Louis.

It has been brought to my attention that one of my images of you during the June 28, 2020 event at your home, is now serving as a Christmas card.

I did not grant permission for this to be used in this manner. Downloading images to use as needed is clearly a violation of the National Copyright Act.

I am in the business of selling images. I do not give them away for free.

Enclosed you will find an invoice for $1500.00, a normal charge for an image such as yours. Al Watkins suggested I send this invoice to you.

Thank you in advance for your understanding of this matter.

This actually set off a bit of a debate here at Techdirt over whether or not the use by the McCloskeys was fair use. We remain somewhat divided on this. As Cathy Gellis has pointed out, fair use should allow a family to, say, clip a photograph of their child doing something cool in the newspaper and use it as part of their holiday greetings cards. However, news organizations do actually tend to license their photos, so I think there's a decent argument that this wouldn't survive the four factors fair use test. It doesn't seem particularly transformative. It uses the entirety of the work. It's not for commercial use but (unfortunately!) that's not that big a deal in the fair use analysis. And, photographers and news organizations regularly do license their works for promotional materials, so there's a decent argument to be made that it could diminish the market (though, admittedly, it's not entirely clear how large a market there is for this particular photograph). It does not appear that Greenblatt consulted a lawyer in sending this (calling it "the National Copyright Act" sort of gives that away).

McCloskey did not seem interested in paying. Instead, he posted the letter to Facebook, claiming that the photographer "stole a photo of us."

This made my day: the photographer that trespassed into my neighborhood and stole a photo of us has sent us a bill!!!!!
Now be nice and don't bother him, but what chutzpah.

Things then escalated last week, when the McCloskeys filed a stunningly stupid lawsuit against Greenblatt, his personal LLC, UPI, and Redbubble* (lawsuit first highlighted by WTHR).

The crux of the lawsuit goes back to McCloskey's Facebook post about how Greenblatt "trespassed" and "stole" a photo of them. The McCloskeys have long claimed that all of the protestors trespassed on their property after going through the gate. While it does seem notable that St. Louis prosecutors chose not to prosecute any of the protesters for trespassing, some have argued that since it was a private street, the protesters (and anyone with them) were were trespassing. The McCloskeys are arguing that it's common law trespassing:

At all relevant times hereto, Defendant Greenblatt acted intentionally and unreasonably when Defendant Greenblatt entered and remained upon the land legally owned in whole or in part by Plaintiffs, in flagrant disregard for posted “no trespassing” signs, and despite Plaintiffs’ repeated requests for Defendant Greenblatt to leave the premises.

This is... not a very strong argument. The protestors were passing through on the way to the mayor's home, and Greenblatt was a journalist covering the protests.

But the really ridiculous part is the damages demand:

WHEREFORE, Plaintiffs pray for judgment against Defendants Greenblatt and UPI, in a fair and reasonable sum in excess of $25,000.00, which is just, fair, and adequate under the circumstances, costs and fees expended herein, for an order transfering ownership of the Photo and any other media captured while trespassing depicting Plaintiffs to Plaintiffs, and for such further and other relief as the Court deems just and appropriate.

Even criminal trespass comes with a maximum fine of $500. Demanding $25,000 and the copyright in the photo is insane.

From there, they make a publicity rights argument. For many years we've discussed the massive problems with basically all publicity rights laws, which were originally designed to prevent companies from using the image of someone to imply endorsement of a product. They've often been stretched in ridiculous ways, but this may be the dumbest attempt: to argue that a journalist's photograph of you doing something very, very newsworthy is a violation of your publicity rights. In Missouri, publicity rights are also not by statute, but under common law, with a 3 pronged standard: (1) the defendant used the plaintiff’s identity; (2) without consent; and (3) "with the intent to obtain a commercial advantage." That standard alone raises some 1st Amendment concerns (as many publicity rights laws do), but there is no fucking way that a journalist taking a photo of a newsworthy event meets the criteria here.

This is a blatant SLAPP suit.

Next up, they argue this is an "invasion of privacy." This is utter bullshit. They argue that the photo has brought them "shame, humiliations, and garden-variety severe emotional distress" and has harmed their careers:

Plaintiffs are prominent attorneys who handle cases throughout the State of Missouri. Plaintiffs have devoted a tremendous amount of time and effort developing their careers and the goodwill, reputation, and brand associated with being an officer of the court. Such efforts have created considerable commercial value in their name, image, identity, and persona.

In the time since the trespassers’ entrance onto Plaintiffs’ private property, Plaintiffs have obtained significant national recognition and fame, as evidenced by being repeatedly featured on both the national and international news. In addition, Plaintiffs have received death threats and have been subject to additional trespassers protesting on their property, all resulting in shame, humiliation, and garden-variety severe emotional distress.

Defendants’ unauthorized use of Plaintiffs’ names, images, identities, and personas in connection with the Photo and other works depicting Plaintiffs is a violation and misappropriation of Plaintiffs’ names and likenesses. Defendants misappropriated Plaintiffs’ names, images, likenesses, identities, and personas by using the Photo in a manner that resulted in an intrusion upon Plaintiffs’ private self-esteem and dignity, which have now been irreparably harmed.

You want to know the evidence that disproves literally all of that? The fact that they put the image on their own fucking Christmas cards. How do you argue that the image destroyed their self-esteem and careers, while then gloating about it on their Christmas cards? Also, it's not the photo that brought them any shame and humiliations -- it was their own actions.

Again, this is a vexatious, garbage SLAPP suit, which appears mostly designed to punish the photographer for sending them that bill. Unfortunately, Missouri has a very limited anti-SLAPP law which may not apply in this case. One hopes that a judge correctly sees this lawsuit for what it is.

* Redbubble is a print-on-demand marketplace. I'll admit that it's not entirely clear why Redbubble is a defendant here, other than it being mentioned that this image is for sale on various products on Redbubble's site (so perhaps the McCloskey's bizarrely think they needed to include it here to get over that 3rd prong of the publicity rights claim). As a disclaimer, though I will note that I have acted as an expert witness on behalf of Redbubble in a few lawsuits, and because of this will not comment on Redbubble's role in the lawsuit. This post focuses on the photographer, Greenblatt and the arguments against him.

Filed Under: anti-slapp, christmas cards, copyright, fair use, guns, journalism, mark mccloskey, missouri, patricia mccloskey, protests, publicity rights, slapp, st. louis, trespassing, william greenblatt
Companies: upi