5-1-13
by John Garziglia
The posting of the altered photo of a 17 year old boy with Down?s Syndrome on a radio station website precipitated a $3M lawsuit against the radio group and others involved for wrongful false light invasion of privacy, misappropriation of likeness and image, intentional infliction of emotional distress, and a violation of the Tennessee Personal Rights Protection Act. What can radio management and ownership learn from the filing of this lawsuit?
For the sake of this discussion, we are going to assume that the photo here was not used as part of a journalistic endeavor of reporting the news. Rather, it appears that the photo was used as a promotional prop ? a billboard ? for a portion of a radio personality?s website titled ?Retarded News?. 
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Further, although this is surmise, it appears that the doctored photo itself was purchased or otherwise legally obtained from a website that offers such altered photos to the public with a license to use that photo for billboards or messaging. Apparently, however, this site did not have the underlying consent from the individual in the photograph for the commercial use of the altered photo, assuming such consent could be given by a 17 year old which is another set of issues in itself. The radio personality that used this photo likely paid the offering web site from which the photo was obtained, and likely wrongly assumed that he had the rights needed to use the photo.
Anytime that a photo of an individual, known in legal terms as an individual?s ?likeness?, is used for a commercial purpose, the issue arises of whether the permission of the individual or individuals shown in the photo is needed for the use. The laws on invasion of privacy and misappropriation of likeness vary from state to state. What may be acceptable in one state may be subject to legal action in another.
The best protection is to always obtain a valid release from the individual or individuals appearing in a photograph for the use intended. Leaving aside the aspect of a release, however, there is a universal aspect to observe in the use of photos showing what may be an anonymous person?s likeness. The potential for a lawsuit for using a photograph of an identifiable, but otherwise anonymous, person dramatically increases to the extent to which the person photographed is mocked, made a subject of derision or is shown in a compromising or unflattering position.
In today?s fast paced world of social media posting, radio station management guidelines should be in place letting air personalities and employees know when management needs to be consulted before obtaining and posting a photograph on a website or on Twitter. The radio personality involved here likely believed that he and his radio station had sufficient consent to use what he thought was a funny (although politically incorrect) photograph to promote his ?Retarded News? feature. To the individual in the photograph and the family, however, the use of the photograph was devastating as well as without consent.
If this case goes to trial, more will likely come out as to how the photograph itself landed on the website that offered the altered photos without the consent of the individual in the photograph. For radio management pondering the lessons of this lawsuit, first be certain that your errors and omissions insurance, or other business liability insurance, fully covers the defense of allegations such as those made in this lawsuit. This time it was a politically-incorrect photo of a special child that was misused. The next time it could be anyone whose photo appears without the subject?s consent. Above all, remind air personalities that if a photograph has the potential to insult, demean, harm, make fun of, or embarrass someone, even with a release and full rights, management should be consulted prior to making use of the photo.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com. Have a question for our "Ask The Attorney" feature? Send to edryantheeditor@gmail.com
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