Family Sues Over Autopsy Images Appearing In Southland Opening Montage

from the i-see-dead-people dept

Well, this is a new one for me. I’ve never watched the now-concluded show Southland, but it was apparently a typical police procedural show known for being particularly realistic and gritty. As you’d imagine for such a show, the opening credits montage was apparently equally gritty and realistic. So realistic, in fact, that the show’s producers used some real-life autopsy photos from real murder victims. One victim’s family is, to say the least, not pleased. The victim’s mother and sister have filed suit in California.

The suit was filed by Hilda Abarca and Jessica Abarca on their own behalf and as successor to the late Andy Nelson Abarca, who the suit says was murdered in 2005. The defendants are Warner Bros. Television, producer John Wells, NBC, Turner Network Television, the city of Los Angeles, the County of Los Angeles and Warner Home Video.

According to the suit Andy Nelson Abarca was murdered on Sept. 28, 2005. In mid-September 2013 the plaintiffs say they saw his autopsy photo at the beginning of Southland, apparently taken while his body was in the custody of the country coroner.

I’d really like at this point to tell you all what the actual law regarding autopsy photos and their usage is, but it’s one of those areas of law so spiderwebbed throughout federal and state laws that it’s quite difficult to come to any real conclusions. The Southern Poverty Law Center’s explanation in an unrelated post appears to be that autopsies and their photos are generally considered public domain, except of course when individual states carve out exemptions to this for specific types of usage (i.e. pending criminal court cases). California law is especially ambiguous on this front.

In some states, including California, autopsy reports are deemed to be confidential under public-records exemptions that protect confidential law enforcement records being used in pending criminal cases. In such states, it’s possible to go back and argue for access once the prosecution is concluded and the “pending criminal case” rationale no longer applies.

Since this instance has absolutely nothing to do with a pending court case, one would think the general rule of thumb, autopsies are public records, would apply. The law being as ambiguous as it is, however, means this case is likely to go forward without a swift dismissal. And, boy, is the suit from the family members a doozy.

As a result of the use of this photo, the suit says both the mother and daughter have “suffered anxiety, anger, hopelessness, fear and distrust of authority,” as well as “physical and emotional discomfort, injury and damage, apprehension, psychological trauma, loss of dignity, nightmares, loss of trust” and other injuries. The suit says this has impacted their health, strength and activity and caused injury to their nervous system and person. It means they will have to incur expenses to treat psychological injuries using drugs and others “sundries” required in the treatment.

The suit seeks damages of at least $750 for each unauthorized use (every time the show played) as well as punitive damages and an injunction to stop the future use of the photo.

As anyone who has read my work knows, I certainly would never want to be insensitive to someone filing a lawsuit, but it strikes me that one would have to have a real commitment to watching a show’s opening montage that included such damaging mental material to warrant the kind of physical and psychological therapy alleged by the suit, not to mention the pharmaceuticals. It’s also unclear to me how an opening montage that features the lifeless body of a loved one would cause any damage to the nervous system and person of someone watching the images, unless of course these people own a television that has the capacity to punch them, in which case, I mean, just throw out the TV, right? I mean, the two family members could just use their remotes.

That said, the case might be useful in getting some more solid caselaw on the books regarding the use of autopsy records and their status as public records. While I can understand the discomfort of this particular family’s plight, the end result should not be more barriers to public information and work performed by public servants.

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Companies: nbc, warner bros.

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Comments on “Family Sues Over Autopsy Images Appearing In Southland Opening Montage”

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That Anonymous Coward (profile) says:

Part of me wants to feel their pain.
Dealing with the idea that their personal tragedy is being replayed over and over, is saddening.

Part of me wants to know how much they are actually trying to get.

“They had no knowledge of the photo and never authorized its release, per the suit.”
So one wonders how they discovered it was a photo of their relative.

While the law should be made more clear, one also needs to admit that it is unfairly applied. A famous person dies, and money changes hands in lawsuits… someone not famous dies and the lawsuit is seen as questionable.

We are a nation of lawsuits based on rights and presumed rights… and the payday that they bring. The law is an imperfect thing, but just adding 0’s to a number never seems to solve much beyond encouraging more people to look for a way they can get their share.

I feel bad for the family, but it doesn’t appear they have any legal rights to the photo. Southland is wrapped, there is no way to magically change every copy they sold to edit out the photo. The “rightsholder” could make a nice gesture and offer to alter them moving forward, but I don’t think they should be on the hook for millions because it was legal but feels “wrong” to a jury.

sorrykb (profile) says:

Re: Re:

That Anonymous Coward wrote:

So one wonders how they discovered it was a photo of their relative.

It was his mother and his sister. I’m guessing they recognized him.

I can’t even imagine what that must have been like for them.

All legal concerns aside…
WHAT THE %$*&#$# WERE THE MAKERS OF THIS SHOW THINKING? “Ooh hey here’s a murder victim, wouldn’t it be cool if we could get a photo and use it to heighten the drama!”

Basic human decency. Seriously.

That Anonymous Coward (profile) says:

Re: Re: Re:

The makers of the show weren’t thinking. They most likely hit up the film/tv assistance office and talked about things they would like. We’d like some autopsy photos to use…

While it isn’t the most feeling thing possible, I’m not sure it was illegal or what other than an apology they should have to do.

Having not seen the opening credits myself, one wonders if there are other pictures as well and is this just going to open up a can of worms.

Yes they should have produced their own dummy photos to use, but it is not like someone picked this exact photo to torment these exact people.

Anonymous Coward says:

Re: Re: Re: Re:

100% of the profit is due to that photo. without that photo, the show would have been nothing at all.

Warner Bros. Television, producer John Wells, NBC, Turner Network Television, the city of Los Angeles, the County of Los Angeles and Warner Home Video should not profit from something that they did not have permission to use and should be charged with theft, should be bankrupted and forced to make the family whole.

Isn’t that the way it works when it is Hollywood’s property that was used without permission?

aldestrawk says:

Re: Re: Re: Re:

The photo in question is one of about a dozen polaroids of headshots that are pinned together on a bulletin board and shown, as a group, for a total of 3 seconds during the opening credits. So, perhaps we shall soon see another 10 or so lawsuits coming. It does look like at least some of these victims were gang members. I certainly don’t know if all of them were but it is a possibility. I mention this because I wonder if the Southland staff thought they wouldn’t be getting any complaints if the photos were gang members.

I can imagine if the sister and/or mother were watching the show and saw their brother unexpectedly how upsetting that might be. However, since the show had ended 6 months before they claim they saw the image it makes me wonder if they were told about the use of a photo of their brother first.

PaulT (profile) says:

Re: Re: Re:2 Re:

“The photo in question is one of about a dozen polaroids of headshots that are pinned together on a bulletin board and shown, as a group, for a total of 3 seconds during the opening credits.”

Yeah, that’s the real story there, I think. Someone was given a low budget and a short lead time to create an intro, and didn’t have time to fake a range of body photos (as is often the case). They realised they had access to public domain material they could use, and utilised it in such a short shot that they didn’t think anyone would have time to identify the victims unless they deliberately paused it.

It’s a little thoughtless, especially with such recent victims, but it’s definitely a case of negligence rather than malice.

PaulT (profile) says:

Re: Re: Re:

“it has been aired by 6 tv companies, including in belgium, france, canada and quebec”

You missed at least two I could find on a quick search – Channel 4 in the UK and Antena 3 in Spain – and you also didn’t factor in re-runs, rentals, streaming, etc. If they’re shooting for compensation for every international and online viewing, it’ll be a ridiculous figure.

Anonymous Coward says:

Throwing out the TV will not fix the problem. My last TV punched me all the time and would even steal my money. By the end of a new series I would be beaten to a pulp. Nothing I could do would stop the beatings so I finally evicted my TV only to end up in the same situation. My new TV was doing the exact same thing. It was like my old TV was possessing my new TV. Long story short, it turns out that my TVs were being held hostage by my cable provider and making them do terrible things. Once I removed the evil influence, my TV no longer punches me and I have a much happier pocket book.

M. Alan Thomas II (profile) says:

I’m sympathetic to the family here, but this is more akin to a privacy violation and I don’t know that they have a case under current law. (If there were a privacy law applicable, it would need a broad public interest exemption that would allow such photos to be broadly obtainable and usable for many purposes but not as commercial entertainment with no informational/educational value.)

Eldakka (profile) says:

Re: Re:

but this is more akin to a privacy violation

Privacy of whom?

The deceased is, well, deceased, so do they have any privacy rights? If it’s a violation of the deceased privacy rights, then they are the harmed party, therefore let’s see the deceased file the claim then.

I can see no violations of the plaintiff’s privacy: they are not subjects of the photos; the photo’s don’t reveal any private information of the plaintiff’s, unless in the background we can see the plaintiffs’ WiFi password written on the wall?

PaulT (profile) says:

Re: Re: Re: Re:

The way I’m reading the story, the photos aren’t subject to copyright because they’re part of public record. However, they may have been classed as confidential, so it’ll be the violation of that which causes the issues, not any copyright term.

However, as noted in the article, it’s such a convoluted subject that we’ll probably have to wait for the curt to decide what applies.

Anonymous Coward says:

Re: Re:

Yes, death is traumatic. You don’t even have to be a family member for that. However…

Please demonstrate how the use of that particular photo led to personal financial gain for the producers of the show vs. the use of any of the other photos in the montage sequence in the opening credits or any other one that they could have used but didn’t. Did that particular photo lead people to watch the show when they otherwise wouldn’t have? Did that particular photo have some special artistic quality that led people to record the show on their DVR and pause the opening credits and just stare at it? Did the photo have several scripts and storyboards sketched out on the back of it?

jsf (profile) says:

Re: Re: Re:

It’s pretty easy to show financial gain. It’s just not all that much money in the end however.

The autopsy photo was probably obtained at no or little cost. Maybe a couple hundred dollars of peoples time to make and edit copies of the original.

The alternative would have been to have a special effects team create a similar photo. This would have easily cost $10,000, $20,000 or even more, to make a fake body, rent the props and location, hire a photographer, photo shop work, etc.

So the financial gain is the difference between what they paid for the exiting photo and having to pay for someone to stage things. Nowhere near the amounts that people might think of as a “financial gain”, but a gain none the less.

Anonymous Coward says:

Re: Re: Re: Re:

Just because that’s the amount someone would charge doesn’t mean that it would actually cost that much.

I could make a similar image with myself as the dead body (no model release!) with my smartphone and software I already bought. And I could do it in less than a few hours and it wouldn’t cost more than whatever a multimedia or film student would charge (unpaid intern?).

Anonymous Coward says:

While I can understand the discomfort of this particular family’s plight, the end result should not be more barriers to public information and work performed by public servants.

I would certainly not argue that the victim’s family should be able to control access to the autopsy photo. If a coroner takes a photo as part of his duties, nobody should get a copyright on that – it should be public domain.

But perhaps there is a difference between having free access to the information, and a nationwide broadcast of a picture of someone’s dead relative to be merely used as a throwaway background in a work of fiction.

That said, the case might be useful in getting some more solid caselaw on the books regarding the use of autopsy records and their status as public records.

You think so? It seems to me that the plaintiffs are pretty sympathetic and the defendants are not. Someone who had their dead relative’s picture shown to them vs the corporation who used that picture as a prop. The caselaw might not go the way you want it to.

If copyright violation is alleged, (it’s hard to tell if it is since the source link is low on legal details and I don’t see why the family would have a copyright on a photo they didn’t even know about, but the $750 sounds like statutory damages, and why else are we even talking about fair use?) it’s likely a federal lawsuit, and if it’s in California, that would put it in the same circuit that recently decided that actresses likely have their own separate copyright in their 5 second performance in a film. I’m not sure why you’re so optimistic.

Anonymous Coward says:

How hard would it have been for the producers to obtain permission from the family to use the photo? Why did it have to be that photo? With all the digital mastery available to them, why could the producers not have altered the photo enough that the victim’s family wouldn’t have recognized him?

I can’t imagine the horror of this situation, compounding the horror of the murder itself. For the producers to just use it without consideration is at the very least stupid.

Anonymous Coward says:

Re: Re:

How hard would it have been for the producers to obtain permission from the family to use the photo?

Perhaps it would have been impossible. In that case, the decent thing to do, of course, is to not use the photo.

This is why you have actors. Get them to wear makeup and/or use CGI to make them look dead, like you presumably do on the actual show.

Boojum (profile) says:

What about HIPPA laws?

I am not sure that there isn’t a HIPPA violation here. If the photograph was taken as part of an autopsy then by my understanding it is a medical record. There is an exemption in HIPPA that allows a coroner to show photographs taken to other medical professionals for specific reasons.. which would imply that other reasons are covered by HIPPA.

2003 HIPPA Carification
45 CFR 164.512 (g)…
Standard: Uses and Disclosures About Decedents
1. Coroners and Medical Examiners. A covered entity may disclose protected health information to a coroner or medical examiner for the purpose of identifying a deceased person, determining a cause of death, or other duties as authorized by law. A covered entity that also performs the duties of a coroner or medical examiner may use protected health information for the purposes described in this paragraph.

According to Dr. Stöppler autopsy records are covered by the same protections as those of a living patient. Reference

aldestrawk says:

Re: What about HIPPA laws?

If you read the wording closely in both your cited HIPAA regulation and Dr. Stöppler’s faq, the coroner is not a HIPAA covered entity and so doesn’t need to comply with HIPAA regulations. What is discussed is a covered doctor releasing medical information to a coroner or a covered doctor performing the autopsy itself.

Boojum (profile) says:

Re: Re: What about HIPPA laws?

Ah, ha! Your right. I just did some more digging and according to the AHJC:

Additionally, the following are NOT protected health information: police and fire incident reports, and court records. Also, birth records and autopsy records are not protected health information to the extent they are maintained by state agencies. In addition, if a state FOIA law designates death records and/or autopsy reports as public information that must be disclosed, covered entities may disclose that protected health information without an authorization.

Boojum (profile) says:

Re: Privacy isn't copyright

No where in the source story did I see the word copyright, I DID see the word privacy. My understanding of HIPAA is that doctors, which includes coroners, are not supposed to give out medical records to people not directly related to the case.

And by the way, if a doctor is taking pictures of his deceased patient that AREN’T medical records then that is a whole new level of creepy..

me says:

Re: Re: Re: Privacy isn't copyright

YES, HIPAA has been around since 2004!! And a coroner is a “covered entity!!!
This is a complete violation of the privacy act AND we all have are same rights when we are dead just as we do when we are alive…
Just because you pass away doesn’t mean a medical facility can now plaster your information all over the world. It still remains confidential for ever!!!
They do need to be sued so as this came become very public so as it will STOP!!! This is not the first time it has happen and it needs to be the last.

Spencer (profile) says:

I have to say, while the lawsuit is questionable, and they certainly do exaggerate their suffering as a result of this, that doesn’t mean they don’t have a valid point. No one should be flipping through channels and see a picture of their loved ones corpse splashed on a screen so that someone somewhere can make money off of it.

In an age where we can easily make just as ‘real’ looking pictures using makeup and special effects, there is zero reason to include photos of real dead people despite their families wishes, other than to claim you have to draw attention to your show.

Anonymous Coward says:

Let’s not forget, one popular method in Nigeria 419 scams is to use photographs of heavily diseased body parts to elicit sympathy for money. profiled at least a couple of such cases where the photos of someone violently ill (now dead) were circulated in these letters. His widowed wife tried to have them removed but failed.

I think some parallels can be drawn here…

Anonymous Coward says:

This is an example of a much bigger problem

The problem this highlights is that a society that lives by the letter of the law, dies by the letter of the law.

In this example, some people wanting to provide the opening credits for a televised set of stories use real photographs of a real dead person. I’m sure that the lawyers would have given the go ahead as it would have been found to not be illegal (not against the letter of the law). I would suggest that in their excitement for their new show, that no consideration would have been made (or if made, overruled) for the feelings of the family of the dead person. A lack of consideration/compassion for the bereaved family.

When only the letter of the law is considered, then we have injustice arising. We see more and more laws and regulations created to “fix” problems with existing situations. Whether this being laws relating to “not offending” someone or laws relating to international taxation matters.

The essential point is that much of what is legislated about now is simply to regulate and control the actions of all and sundry at the expense of all and sundry.

There will always be those who will use the law to obtain advantage over others and there will always be those who will help them find the loopholes or write the needed changes into the law. As time goes on, we have lost the ability to be compassionate (this does not mean agree with) to others.

In this example, those who used the images were not thinking and unwise. On the other hand, the family is also being unwise by now trying to close the barn door after the horses have bolted. I suspect that lawyers are involved with both sorts of stupidity.

I would suggest that the appropriate action at this time would be to put this behind them and move forward. There will always be reminders of the “bad” things that have happened to us in the past, it is how we live in the present that determines whether or not the past becomes a burden that is unbearable. I also wonder if the family in question has been allowed to grieve properly. if not, then such things will cause them great anguish. Grief takes time and if it is not done, there is great trouble.

Sheogorath (profile) says:

As a result of the use of this photo, the suit says both the mother and daughter have “suffered anxiety, anger, hopelessness, fear and distrust of authority,” as well as “physical and emotional discomfort, injury and damage, apprehension, psychological trauma, loss of dignity, nightmares, loss of trust” and other injuries.

So shouldn’t the guy’s family be suing the state for releasing the image in the first place. Maybe they’re suing the makers of the show because they know exactly how far they’d get if they did sue the right organisation.

Rekrul says:

If the producers of the show absolutely had to have real autopsy photos, they should have at least done their homework and found victims that have no living relatives. Possible some that are 20+ years old to reduce the chances that they would be recognized as someone’s friend. Making their own fake photos would have been the best option.

In any case, I predict that the studio will settle this case and that the opening montage will be changed to eliminate the photo, both in syndication (if the show is syndicated) and on the DVD releases.

aldestrawk says:

Re: Nervous System Damage...

So, I think we are talking about PTSD. I have a hard time believing that seeing a photo of your dead brother or son some 8 years after he died is enough of a traumatic experience to result in PTSD. It would be more believable if they had already experienced PTSD as a result of the murder and this incident just triggered that. However, no mention was made of pre-existing PTSD. To tie it to your comment, PTSD is a situation where repeated traumatic stress has reinforced particular brain pathways to cause the pituitary gland to release a hormone which, in turn, causes the adrenal glands to synthesize and release bursts of stress hormones, such as cortisol, which has as one of its effects suppression of the immune system. The repeated occurrences of stress is required but this can occur when the memory of a single traumatic event is replayed, often uncontrollably, by your own brain.

kenichi tanaka (profile) says:

I have to side with the victim’s family members because autopsy photos, even if they are considered to be in the public domain, doesn’t give anyone else the right to profit off those photos. While there may be exceptions, such as journalism and the news media; when other entities, such as movie and television studios, seek to profit off those photos, it just creates one massive screw-up, and also creates liability for anyone involved in the production of that movie or television series.

First of all, the county of Los Angeles should have exercised more restraint and they should not have released those autopsy photos and I seriously doubt that the law was designed to allow the entertainment industry to profit from those autopsy photos.

Second, Warner Brothers Television, producer John Wells, NBC, Turner Network Television, the city of Los Angeles, the County of Los Angeles and Warner Home Video have all set themselves up for liability because not withstanding that the scene appears on a large number of episodes in the series, but also the rebroadcast of those episodes, the DVD releases, digital downloads, torrent downloads, Blu-ray releases and releases to other regions and other countries, the aforementioned people and entities may be in a lot of trouble for using those photos without permission from the family.

I also expect that the aftermath of this lawsuit could force municipalities, cities, states and even congress itself, to pass a law making it a crime to use sensitive photos such as autopsies in any commercial venue.

Fact of the matter is, Warner Brothers and everyone involved, have commercially profited off those autopsy photos in such a way as to invade the privacy of Andy Nelson Abarca’s family.

Such autopsy photos, even if they are considered to be in the public domain, are not without limit. I think some overzealous crew member on Southland discovered the photos and decided to suggest them to the producers to add to the montage, not realizing what kind of impact it would have on the family.

Imagine that a member of your family was brutally murdered and the country medical examiner took photos and then Paramount, Universal or Warner Brothers decided to include those photos in every episode of one of their TV shows. There you are, sitting at home, interested in watching this TV series and you’re confronted with the autopsy photos of your slain family member. Nobody can imagine what kind of psychological effect that could have on a family member and it was callous of Warner Brothers and everyone mentioned above to even use those photos in the production of their TV series.

These studios have special effects departments, they could have easily created fake autopsy photos, but they decided to use real-life autopsy photos? This isn’t like the TV series COPS or World’s Dangerous Police Chases. Everyone involved in this TV series should be sued because they intruded into the private lives of this mourning family.

PaulT (profile) says:

Re: Re:

“Everyone involved in this TV series should be sued because they intruded into the private lives of this mourning family.”

Now that’s how you do hyperbole!

Seriously though, the creation of the opening credit were created by someone, the editor had to assemble the footage and the producer would have approved them, presumably with some backup from a legal department. That’s it. Nobody else would have been involved in the actual creation of the footage.

That’s enough, no need to start threatening to sue everyone from the best boy to iTunes because someone did something thoughtless in a place of which they had no knowledge or influence.

petar uth matar (profile) says:

You could have been just a little bit less cocky and less condescending and less of a arrogant prick . They had a remote close by ??? You are truly despicable person to say to them – just change the channel if you don’t like it . I don’t care about that suit but I would prefer that they win only cos gov* is to selective when something is in public domain . On the other hand you came out worst in this article with same grace , journalistically lack of integrity and as a payoff of stupid copyright maximalist agenda just opposite side of the coin . Extremist are bad no matter from which side od coin . Shame on you . Petar L.

Petar (profile) says:


Only now I went back and read your name and this is third time your intolerance to a broader picture made me throw just a little in my mouth . I’m truly sorry to say this cos I do not know you personally but I believe you are unfit to write for respected forum as a techdirt . Our couse will not be helpt by a person with intellectual integrity to run over a toddler for pointing out something that does not agree with your narrow point of view . You saying you feel their pain is just a platitude that is obvious to all who reed the article . I will not go on cos I’m certain I made my point but you really should go to 5 cop. Maximist , 3 patent trolls and 1 person from Prenda hug them , pretend you agree with them and hope for some empathy asap or all hope you will be well round human being/ journalist is lost …

jaquer0 (profile) says:

Timothy Geigner - flaming asshole farts again

So Timothy Geigner can’t imagine how seeing pictures of a murdered loved one’s corpse to “hook” people into commercial, for-profit entertainment could possibly upset the mother and sister of the victim.

Why does Techdirt subject itself to the humiliation of having this flaming asshole’s brain farts featured as its very own content?

I don’t give a flying fuck about the law, free speech, the first or the hundred and first amendment, the public domain nor any of the rest of that bullshit.

Any entity who does this to members of a grieving family for the purpose of commercial exploitation of their tragedy and grief should be punished with a mandatory sentence of the corporate death penalty: expropriation without any compensation to owners, shareholders or creditors except only individual, non-controlling employees of the enterprise.

Why include creditors and not just those folks with equity? Because in today’s totally financialized world, creditors often become the real controling interest in an enterprise. I could say something like that there is a rebuttable presumption against the creditors, but hey, I’m not drafting a statute but making a MORAL point:

Anyone who consciously exploits for profit the tragedy, misery and suffering of others should be subject to sanctions devastating enough so that it will not occur to anyone in the next few hundred years to copy their conduct.

If expropriation without compensation is insufficient to achieve the desired result, then I would suggest hiring the guy who chops people’s heads off in our best pal Saudi Arabia to do so to those responsible, and decorating Hollywood’s Walk of Fame with the heads of the miscreants hoisted above the sidewalk on spikes.

This to illustrate to the next generations that there are some “creative” efforts to turn someone else’s pain into your own profits, no matter how “legal,” that come with too high a price.

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