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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.

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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


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  • icon
    That One Guy (profile), 11 Nov 2020 @ 10:30am

    'That thing we're super proud of is damaging our reputation!'

    They felt so proud of pointing guns at a bunch of protesters that they printed the picture on christmas cards, and now they want to complain that the knowledge that they were threatening to kill a bunch of people has been harmful to their reputation?

    Just a tip you self-centered psychopaths, if you're going to claim harm from something it helps if you aren't boasting about it, as that kinda undercuts the whole claim.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2020 @ 1:54pm

      Re: 'That thing we're super proud of is damaging our reputation!

      Those so-called protesters broke open a gate and were ALL Trespassing on private property.

      None of those people had any right to do what they did. They should have stayed behind the gate on Public property which would have been just fine. But they ALL broke the law. They had every right to go out there on their property and protect it from these rioters, Looters, Arsonists. are really low lives and destroyed many people's lives because of some CRIMINAL!!!! That crowd had no right to do what they did.

      reply to this | link to this | view in chronology ]

      • icon
        Cowabunga (profile), 13 Nov 2020 @ 5:10am

        Re: Re: 'That thing we're super proud of is damaging our reputat

        They did not break down the gate to enter, and there is local TV video showing that, although the gate did get broken at some later time. Nor were they rioters, looters, and arsonists. There is video showing a bunch of people passing Bonnie and Clyde’s house on a sidewalk that doesn’t belong to them, on the way to somewhere else. Hardly worth threats of deadly force, hence the assault charges. I expect this suit will be treated with all the contempt it deserves.

        reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 11 Nov 2020 @ 10:38am

    Christ. Obviously the Maclunkeys come out worst in this story, but I can't say I'm terribly sympathetic to Greenblatt either.

    The Maclunkeys are awful, awful people and their suit is pure meritless SLAPP. But while using a photo of themselves on their Christmas cards may not qualify as fair use under current legal standards, it really, really should.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2020 @ 11:52am

      Re:

      I agree here.

      In the end, it's their own image and the photographer took it without even asking permission.

      I understand he has that right, because journalism and the right to information, but he shouldn't have exclusive rights over every aspect of it, moreover when he didn't ask permission either.

      Why should the couple now have to ask him permission over their own image, when the photographer didn't ask them beforehand?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Nov 2020 @ 12:07pm

        Re: Re:

        That isn't how photography works, pretty much anywhere.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Nov 2020 @ 2:31pm

          Re: Re: Re:

          And I'm not saying how it works, but how it should work. Because, tbh, copyright has always been a fuckup that defies common sense.

          I'm not preventing the photographer from using that photo for his own job. Nor I think the couple should be entitled to any money coming out from that photograph, including themselves selling it or giving it away.

          What I'm saying is that they should also have the right to use it as they see fit, under a "fair use" exception or whatever legal instrument.

          reply to this | link to this | view in chronology ]

          • icon
            Jeremy Lyman (profile), 12 Nov 2020 @ 7:28am

            Re: Re: Re: Re:

            So you can just use all the photos a portrait photographer takes because they're "of you"? That'd kinda ruin the business model where you only have to pay for the pictures you want.

            reply to this | link to this | view in chronology ]

      • icon
        JMT (profile), 11 Nov 2020 @ 12:43pm

        Re: Re:

        An image of them is not theirs; that's not how copyright works. And there are limited circumstances where you need permission to photograph someone, and this ain't it.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Nov 2020 @ 2:39pm

          Re: Re: Re:

          "that's not how copyright works"

          When did TD stop being a place where we question copyright as it is?

          If you read my post, and the one written later, I'm questioning "how it works" right now. If laws need to change to fix this, so be it.

          The couple can go fuck themselves for all I care, btw. In fact, it's a pity they didn't get what they deserve. Them, and that fucking governor that would pardon them.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 11 Nov 2020 @ 3:08pm

            I'm questioning "how it works" right now.

            Question it all you want. Until the law changes, copyright works how it works right now — and nothing you can do right now will change that.

            reply to this | link to this | view in chronology ]

          • icon
            JMT (profile), 11 Nov 2020 @ 4:49pm

            Re: Re: Re: Re:

            Even if copyright was to significantly improve in favor of the general public, nobody will ever, or should ever, automatically "own" a photo taken of them unless there is prior written agreement. It would be ridiculous and completely unworkable.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Nov 2020 @ 1:25pm

        Re: Re:

        The photographer doesn't need permission: they were in public. And clearly -- as evidenced by what subsequently happened -- this is newsworthy.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Nov 2020 @ 10:24pm

          Re: Re: Re:

          They were not in public! The photographer was trespassing on private property. They were not visible from any public right of way!

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 12 Nov 2020 @ 1:47am

            Re: Re: Re: Re:

            "They were not in public!"

            It would have been ok to be naked then.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 12 Nov 2020 @ 6:35am

            Re: Re: Re: Re:

            You're mindlessly parroting the completely debunked claim that the protesters and photographers were on private property. I know this is vastly beyond your feeble intellectual grasp, but when someone claims that something is private property, that doesn't make it so.

            Signed, a person from St. Louis who has actually paid attention to where the real property lines -- not the imaginary ones -- are.

            reply to this | link to this | view in chronology ]

          • icon
            bhull242 (profile), 12 Nov 2020 @ 10:27am

            Re: Re: Re: Re:

            It was outside the front of their house. How is that not visible from any public right-of-way?

            reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 16 Nov 2020 @ 1:30am

            Re: Re: Re: Re:

            "They were not in public! The photographer was trespassing on private property. They were not visible from any public right of way!"

            They were standing on their front porch, clearly visible from the street.

            As usual, Baghdad Bob, you haven't a frigging clue what the difference is between public and private space. Had they been indoors and the photographer snuck onto their property, all the way up to a window, and aimed the camera inside you might have a point. But that is manifestly NOT the case.

            reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 12 Nov 2020 @ 4:53am

        Re: Re:

        "I understand he has that right, because journalism and the right to information, but he shouldn't have exclusive rights over every aspect of it, moreover when he didn't ask permission either."

        Some nuance might help.

        1) Using a camera in a public space is what his right is here. 1A and all that.

        2) exclusive privilege is what copyright gives him - which is, as you note, as insane as it comes.

        3) Obviously an image taken, in a public place, by anyone, shouldn't be legally restricted to distribute. That's dictionary-definition censorship, enforced and backed by government authority and the law. Only that because it's a private entity calling for it we rename that censorship as "Copyright".

        Greenblatt certainly comes off as a jackass here, and one can only hope that somewhere deep down he's one of those riding this case just to rub people's noses in the insanity of copyright. Sadly I suspect that ain't the case.

        The main issue I see here is that going by their history the McCloskey's are such sterling examples of unpleasant shitwit it's likely whatever issue anyone reading this case may have will just vanish in the schadenfreude of seeing this pair of third-rate ambulance chasers get a comeuppance of any kind.

        And yes, that's right, these gun-toting fruit loops are actually lawyers so there's no real excuse they don't know the very basics of copyright law, deranged though it may be.

        reply to this | link to this | view in chronology ]

    • icon
      BernardoVerda (profile), 11 Nov 2020 @ 5:03pm

      Re: 1000 Christmas cards?

      That they hand out even to complete strangers, and occasionally sign some of them?

      That sounds like commercial use (ie. promotional materials) to me.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 11 Nov 2020 @ 7:14pm

        Re: Re: 1000 Christmas cards?

        Depends on what they're doing with them, if they're just giving them away it might be a little iffy but probably wouldn't qualify as commercial use.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 12 Nov 2020 @ 4:59am

          Re: Re: Re: 1000 Christmas cards?

          "Depends on what they're doing with them..."

          Given that they own an ambulance chasing business...err, personal injury practice and are the sort of neighbors even a mob boss might think a bit iffy, the idea they'd hand out a thousand cards demonstrating their belief in personal property and self-defense to "friends and neighbors" in any form of goodwill isn't very credible.

          I think it boils down to either them making outright commercial use of Greenblatt's photos, or, in the only logical defense which might stick as believable, they doled them out as unspoken threats to everyone within three city blocks of their residence as the biggest "Get Off My Lawn!" grouch in history.

          reply to this | link to this | view in chronology ]

        • icon
          Jeremy Lyman (profile), 12 Nov 2020 @ 7:31am

          Re: Re: Re: 1000 Christmas cards?

          What about the company that printed 1,000 cards for profit? That was certainly a commercial use. I'd imagine they asked their clients if they had the rights to the image and were lied to.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Nov 2020 @ 10:55am

    Honestly, not a surprise. IIRC, they were serial litigants in the first place, and just not very nice people.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Nov 2020 @ 11:13am

    Hope they get all... privacy used to be a thing people wanted...

    reply to this | link to this | view in chronology ]

  • identicon
    Frank Cox, 11 Nov 2020 @ 11:20am

    I'm not sure about this..

    It's my understanding that I can copyright something like a statue or a painting, and if anyone takes a photo of it I can can sue the photographer for unauthorized use of my copyrighted property, even if the statue is displayed in a public park or the like.

    But if the photographer takes a photo of me in person, then the photo belongs entirely to the photographer and I get no rights at all in it?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 11 Nov 2020 @ 11:25am

      Re: I'm not sure about this..

      Yes? Just because someone takes a picture of you does not mean that you have any rights to that picture unless you have an agreement in place beforehand that hands the rights over to them, as can be the case for professional photographers.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2020 @ 11:30am

      Re: I'm not sure about this..

      Well it like this, a statue is the result of your artistry, while the photo is the result of the photographers artistry. Your looks are the result of genetics, and maybe the plastic surgeons and/or tattooists artistry. The designers of your cloths and possessions may have a slim copyright claim. So what copyright claim do you have in your appearance?

      reply to this | link to this | view in chronology ]

      • icon
        Frank Cox (profile), 11 Nov 2020 @ 11:44am

        Re: Re: I'm not sure about this..

        I'm not saying that I should have a claim either way (a photo of my statue or of me); I'm just saying that it's a bit inconsistent to hold that both of those things should be true.

        My looks are the result of more than genetics. I might have a unique haircut or hat; perhaps I have pink glasses or a wooden leg. Maybe I'm just a "typical example of a middle aged white male". Random photographer Joe Schmoe decides that he needs a photo of a "typical example"; he takes mine and put it into his book.

        Why can he do that without my permission but not put a photo of my statue in his book?

        What if it's a statue that looks just like me? :)

        Again, it's inconsistent that both of these things should be true.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Nov 2020 @ 12:09pm

          Re: Re: Re: I'm not sure about this..

          You can't file for copyright on your appearance. You can file for a created work published in a fixed form.

          reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 12 Nov 2020 @ 5:04am

      Re: I'm not sure about this..

      "...I can copyright something like a statue or a painting, and if anyone takes a photo of it I can can sue the photographer..."

      Yep. Because that'd be replication, or at least a derivative work.

      "But if the photographer takes a photo of me in person, then the photo belongs entirely to the photographer and I get no rights at all in it?"

      Yup. Welcome to copyright.
      Though I guarantee you there are maximalists out there waiting for the chance at suing their own descendants for a shitload of cash for replicating their DNA by having children.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Nov 2020 @ 11:37am

    The typical use of pictures in DIY Christmas cards by the general public do not become headline news and therefore any copyright owner would not be aware of any infringement, such is not the case here. This couple is using their 15 seconds of fame in an attempt to expand it, into what idk.

    Perhaps the copyright owner in this case should make use of the same photo as his Christmas card and make sure it is public. Then they would scream about using their image(s), hahaha.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 11 Nov 2020 @ 12:09pm

    Still, I don't think a photographer should have a legal right to charge you for taking a photo of you that you didn't request. If he/she did anyway, then it belongs as much to you as it does to him/her.

    I'm saying nothing about the law, merely what I consider common sense. You take a picture of me (not at my request, not for agreed upon payment), then I'll use it anyway I want. Suing for damages, though, is BS. Suing for legal fees to contest the billing, fine.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 11 Nov 2020 @ 12:28pm

      Re:

      Still, I don't think a photographer should have a legal right to charge you for taking a photo of you that you didn't request. If he/she did anyway, then it belongs as much to you as it does to him/her.

      They can't(and didn't) and it doesn't and shouldn't, as merely being in a photo does not give you any rights to it, and if you really wanted to run with that idea it might cover more than you originally thought, the first of which is that if the subject of a picture has rights to it equal to the photographer then that would include the right to issue copyright claims over it, which would open the door to a lot of abuse.

      Now, a case could be made for fair use of such a photo, which would need to be judged on a case-by-case basis, but that is significantly different than ownership of the photo.

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 11 Nov 2020 @ 12:29pm

      Re: Actually, "Glenn", you just stated agree with Common Law!

      I'm saying nothing about the law, merely what I consider common sense.

      Common law is basically the Golden Rule: "Do unto others as you would have them do unto you."

      So you've broken with legalist, corporatist Masnick who believes that law comes only from court decisions, besides that sees it as gov't-conferred authority, as he claims for Section 230.

      Congrats. You've just joined the Populists.

      [Browser session stopped working! Ol' "Free Speech" discriminates against viewpoints.]

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Nov 2020 @ 2:27pm

        Re: Re: Actually, "Glenn", you just stated agree with Common Law

        Just stop pulling BS outta your ass.

        reply to this | link to this | view in chronology ]

      • icon
        Khym Chanur (profile), 11 Nov 2020 @ 3:03pm

        Re: Re: Actually, "Glenn", you just stated agree with Common Law

        Common law is basically the Golden Rule: "Do unto others as you would have them do unto you."

        No, it isn't. If it is, provide some citation or reference. Don't tell me to do my own research, because I have down my own research and concluded that you are vastly wrong. I might have researched wrong, but if that's the case point me out to what I should have read to do my research.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Nov 2020 @ 1:56am

        Re: Re: Actually, "Glenn", you just stated agree with Common Law

        "So you've broken with legalist, corporatist Masnick who believes that law comes only from court decisions"

        Do you have a quote? Any reference at all?
        afaik, the law as discussed here on TD includes legislative activities and is not limited to just court proceedings as you claim.

        Common law does not seem to have a common definition amongst the public. Almost every time I read someone discussing common law they have a different interpretation of what it means.

        reply to this | link to this | view in chronology ]

      • icon
        bhull242 (profile), 12 Nov 2020 @ 9:27am

        Re: Re: Actually, "Glenn", you just stated agree with Common Law

        Yes, the law only comes from legislation, constitutions, and courts. Anything else is pseudolegal nonsense. “Common law” refers to court decisions. It is not the golden rule.

        As for Glenn, he’s talking about what he thinks the law ought to be, not what he thinks the law is. That’s not breaking with Masnick.

        reply to this | link to this | view in chronology ]

    • icon
      TripMN (profile), 11 Nov 2020 @ 1:11pm

      Re:

      This idea breaks down once you start having more than 1 individual in a picture. A photographer takes a picture of a crowd -- does everyone in the crowd have a separate copyright in that picture? Why? Just because you bounce light off your person doesn't mean you had anything to do with the photograph more than just being. If you don't want to by chance have a photograph of yourself taken while out in public, don't go out in public. It's simple enough.

      Now the question of "fair use" is more nuanced -- where does it break down when someone uses a picture of you for something -- do you have the right to use it yourself? I'm actually not sure.

      reply to this | link to this | view in chronology ]

    • icon
      Chris-Mouse (profile), 11 Nov 2020 @ 1:37pm

      Re:

      The photographer is not charging them for taking their picture. What he is charging them for is the use of a picture that he took. The fact that they are the subjects of the picture is irrelevant.

      The photographer has every right to ask for a license fee for the use of one of his photos, just as he would be expected to be paid for the use of picture of the sunset.

      Normally, if you want to use someone's photograph, you negotiate the license fee in advance. In this case, they didn't, so now they are in a situation where they are negotiating in a position where if they don't reach an agreement with the photographer, they could be sued for $150,000 for copyright infringement. Personally, I'd rather avoid getting into this situation, but if I did, I'd probably choose the $1500 bill instead of $150K plus legal fees.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Nov 2020 @ 1:59pm

        Re: Re:

        I think once you try charging a FEE for a picture you took, it's now become commercial. You're making money off of that picture and so you need everyone in that picture to have signed a form allowing you to sell their picture. It's no longer NEWS or for private use.

        You can take pictures and record anything in public you can see. That is a first amendment right. If you're now going to make money off of it by selling it, That is commercial use now.

        reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 11 Nov 2020 @ 4:47pm

        Re: Re:

        The fact that they are the subjects of the picture is irrelevant.

        But should it be?

        The photographer has every right to ask for a license fee for the use of one of his photos, just as he would be expected to be paid for the use of picture of the sunset.

        Just to be clear, we're talking about a legal right here, not some sort of natural right. This is how we do things in the US; there are different laws in other legal jurisdictions that do grant the subject of a picture legal veto power over its distribution. (There are certain exceptions to the rule in US law, too -- revenge porn laws, for example -- but those are special cases and outside the scope of this discussion.)

        Generally speaking, I think the US approach is better, and the subject of a photo shouldn't have veto power over its distribution in most cases. However, I'm less sympathetic to the notion that individuals should have to pay a fee to use photos of themselves in a noncommercial context.

        Normally, if you want to use someone's photograph, you negotiate the license fee in advance.

        And normally, people don't send somebody a bill for using a photograph of themselves on a Christmas card, no matter who owns the copyright.

        None of this, by the way, should be taken as a defense of the McCloskeys as human beings, or the merits of their meritless lawsuit. They are garbage people and I have no sympathy for them. But I still think copyright maximalism is destructive bullshit, even when it targets somebody I don't like.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    I V League-Wiener, 11 Nov 2020 @ 12:20pm

    What? "Common law"? Why don't they refer to court decisions?

    You, M-a-z, have in the past mis-stated that "common law" is prior decisions, therefore by your notion those exist and can be referred to specifically.

    However, here, in an actual case, you hastily pass over that "common law" clearly refers to accepted long-time custom and principles, not any specific decision.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 11 Nov 2020 @ 12:51pm

      "common law" clearly refers to accepted long-time custom and principles, not any specific decision

      Quoting Wikipedia at length:

      In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision). The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch (the interactions among these different sources of law are explained later in this article). Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

      The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. The British Empire later spread the English legal system to its far flung colonies, many of which retain the common law system today. These "common law systems" are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.

      Under the modern view, “common law” is not grounded in “custom” or "ancient usage", but rather acquires force of law instantly (without the delay implied by the term "custom" or "ancient") when pronounced by a higher court, because and to the extent the proposition is stated in judicial opinion. From the earliest times through the late 19th century, the dominant theory was that the common law was a pre-existent law or system of rules, a social standard of justice that existed in the habits, customs, and thoughts of the people. Under this older view, the legal profession considered it no part of a judge's duty to make new or change existing law, but only to expound and apply the old. By the early 20th century, largely at the urging of Oliver Wendell Holmes (as discussed throughout this article), this view had fallen into the minority view: Holmes pointed out that the older view worked undesirable and unjust results, and hampered a proper development of the law. In the century since Holmes, the dominant understanding has been that common law “decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law”. Holmes wrote in a 1917 opinion, “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified." Among legal professionals (lawyers and judges), the change in understanding occurred in the late 19th and early 20th centuries (as explained later in this article), though lay dictionaries were decades behind in recognizing the change

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    I V League-Wiener, 11 Nov 2020 @ 12:20pm

    Disambiguate your two positions. If ya can, college boy.

    You're as usual inconsistent when suits your purpose in any given piece.

    And by the way: valid court decisions in America can NEVER be outside of Common Law nor Constitution, which is the expression of Common Law. There's NO separation allowed.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    I V League-Wiener, 11 Nov 2020 @ 12:21pm

    So, web-sites can kick anyone off, but DIFFERENT when physical?

    Disambiguate your clear position here that hostile strangers physically on property marked "no trespassing" must be allowed, and rectify it with your many prior assertions that mere hosts of web-sites have total control over those including for 1A-protected speech that the host simply doesn't want seen.

    Isn't it true that web-site hosts which solicit persons to publish their own views have almost no grounds for such control? While persons in the McCloskey case had clear intimation of physical danger?

    A-MAZ-ingly as always, YOU uphold the wrong view in both sitches.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      Appreciative user (profile), 11 Nov 2020 @ 12:41pm

      Re: So, web-sites can kick anyone off, but DIFFERENT when physic

      I agree completely with your interpretation.

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 11 Nov 2020 @ 12:49pm

      Re: So, web-sites can kick anyone off, but DIFFERENT when physic

      "Isn't it true that web-site hosts which solicit persons to publish their own views have almost no grounds for such control?"

      Nope.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 11 Nov 2020 @ 12:55pm

      Any interactive web service that allows the posting of speech from third parties has every right to control whether the service will host that speech. A Trumpian can no more sue Twitter for banning said Trumpian over their use of a racial slur any more than I could sue Parler for banning me over my use of whatever language happened to piss off an admin that day.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 12 Nov 2020 @ 10:22am

      Re: So, web-sites can kick anyone off, but DIFFERENT when physic

      Disambiguate your clear position here that hostile strangers physically on property marked "no trespassing" must be allowed,

      They weren’t hostile, and they weren’t on private property.

      and rectify it with your many prior assertions that mere hosts of web-sites have total control over those including for 1A-protected speech that the host simply doesn't want seen.

      Speech on a website is more like someone talking inside your house or writing on a billboard you own than people walking past your house. Here’s a rule of thumb: can a police officer be there without a warrant or permission? Then a stranger can go there, too.

      Isn't it true that web-site hosts which solicit persons to publish their own views have almost no grounds for such control?

      Nope. They have grounds in the 1A and in property law.

      While persons in the McCloskey case had clear intimation of physical danger?

      No, they did not.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    I V League-Wiener, 11 Nov 2020 @ 12:21pm

    Maliciously prosecuted for opposing a violent mob.

    The McCloskeys have ALL the right in the original case.

    1) Private property clearly marked "no trespassing".

    2) A mob at best alarming, stopped to confront, clearly hostile.

    3) One is not required to retreat from threats, most definitely not from mob on own property. This isn't England, we're not serfs. -- Common law supports that despite any statute to contrary.

    4) "Brandishing" doesn't apply when reaction to threats on one's property when surrounded and the house could be burned down.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2020 @ 12:27pm

      Re: Maliciously prosecuted for opposing a violent mob.

      I presume the Mayor lived on that property, and therefore going to visit him is not trespass.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Harvey Binkwiler, 11 Nov 2020 @ 12:33pm

        Re: Re: Maliciously prosecuted for opposing a violent mob.

        I presume the Mayor lived on that property, and therefore going to visit him is not trespass.

        You presume WRONG.

        The private home or even official residence of a Mayor is PRIVATE. You presume that you can just walk in on a residence? Lood Gord, you're not just presumptuous, but STUPID.

        I invite you try that at your governor's mansion. -- Or even the County Clerk's house.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Nov 2020 @ 1:21pm

          Re: Re: Re: Maliciously prosecuted for opposing a violent mob.

          You presume that you can just walk in on a residence?

          I can walk up to someone's door for a large variety of reasons, just as others can walk up to mine. Some of those visitors are annoying, like evangelical Christians, but the commit no crime by knocking on my door.

          reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 12 Nov 2020 @ 10:23am

          Re: Re: Re: Maliciously prosecuted for opposing a violent mob.

          The street in front of the official residence of the mayor is public property.

          reply to this | link to this | view in chronology ]

      • icon
        Appreciative user (profile), 11 Nov 2020 @ 12:42pm

        Re: Re: Maliciously prosecuted for opposing a violent mob.

        I don't think you know what private property means.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2020 @ 12:51pm

      Re: Maliciously prosecuted for opposing a violent mob.

      "Brandishing" doesn't apply when reaction to threats on one's property when surrounded and the house could be burned down.

      Try it when the cops are outside your house. See if it doesn't apply then.

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 11 Nov 2020 @ 1:08pm

      Re: Maliciously prosecuted for opposing a violent mob.

      "2) A mob at best alarming, stopped to confront, clearly hostile."

      "I was alarmed!" is not a valid defense for brandishing a weapon, legally or morally. The protesters did not stop or confront the McCloskeys until guns were pointed at them. Even then there was never any direct threats towards them.

      "4) "Brandishing" doesn't apply when reaction to threats on one's property when surrounded and the house could be burned down."

      They were not "surrounded" and there was never any threat to their property. You sound as paranoid and delusional as they do.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Nov 2020 @ 2:03pm

        Re: Re: Maliciously prosecuted for opposing a violent mob.

        The mob broke down a gate. Went why past the Private Property sign. They ALL were trespassing!!! They left the public property, the Sidewalk outside the fence, and were all trespassing. We all have seen what these people do. They were all breaking the law. These 2 people had every right to go out there with guns and protect their property from these criminals. Every single person there was a CRIMINAL!!!!!!

        They were all trespassing!!!! It's really as simple as that. If they stayed out on the sidewalk and not broken down the gate and going past the Private Property sign posted there, there would have been ZERO issues and the 2 wouldn't have brought out their guns.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 15 Nov 2020 @ 9:20am

          Re: Re: Re: Maliciously prosecuted for opposing a violent mob.

          The retarded chimp who wrote this is simply going to scream MUH PRIVATE PROPERTY over and over again while smearing his own shit on the walls. There's no reasoning with morons like this. We can only hope that he/she gets COVID-19 and dies choking on his own fluids, thereby slightly improving the human condition by removing someone who absolutely, positively, doesn't deserve to live on this planet.

          reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 12 Nov 2020 @ 9:47am

      Re: Maliciously prosecuted for opposing a violent mob.

      1) They weren’t on “private property”. They don’t own the streets or the sidewalks.

      2) I don’t see how the “mob” (read: peaceful protestors) were alarming or hostile. They stopped after being confronted, rather than stopping in order to confront.

      3) No one was saying they had to retreat. They could have and maybe should have, but no one was saying they had to. They weren’t even outside at first, as I recall, so they could have just ignored the protesters as they passed by. Also, common law does not say that or overrule statutes contrary to them. Excluding rulings involving the state or federal constitution, statutes can and often do override common law.

      4) Setting aside that their property was not, in fact, “surrounded”, that no threats were made against them, and that the house was not in any danger of being burned down, “brandishing” still applies whether they had any moral or legal right to do so. If I fire a gun and that directly results in someone’s death, I still shot and killed them even if it was a clear act of self-defense against a known and widely disliked serial killer or it was unintentional. When you show off your weapon at someone trying to rob your home or something, generally in a threatening manner, that’s still “brandishing” your weapon, justified or not.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    I V League-Wiener, 11 Nov 2020 @ 12:22pm

    Even "Thad the Ant-Slayer" sees that your own likeness is YOURS

    The photographer (who was on private property too) never sought permission to use the image -- as could have -- so has no rights to it at all.

    And clearly, photographer is just a liberal smartass trying another means to harass the McCloskeys.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2020 @ 12:55pm

      Re: Even "Thad the Ant-Slayer" sees that your own likeness is YO

      And clearly, photographer is just a liberal smartass trying another means to harass the McCloskeys.

      Why is it harassment taking a picture of them exercising their second amendment rights? Why wouldn't they be proud? Proud enough to put the "harassing" picture on a christmas card, even?

      He lost, get over it.

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 11 Nov 2020 @ 1:11pm

      Re: Even "Thad the Ant-Slayer" sees that your own likeness is YO

      "The photographer... never sought permission to use the image -- as could have -- so has no rights to it at all."

      Take this opportunity to be corrected on a topic you clearly know little about.

      reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 11 Nov 2020 @ 2:00pm

      Re: Even "Thad the Ant-Slayer" sees that your own likeness is YO

      And clearly, photographer is just a liberal smartass trying another means to harass the McCloskeys.

      Yeah, damn that liberal smartass of a photographer. He shouldn't be allowed to use copyright to control his works, that right is reserved for corporations so they can put alleged pirates into prison!

      The McCloskeys where fully within common law to use that copyrighted picture whoever they wanted, since they aren't left-wing liberal commie-pinko pirating kids hired by Google and big tech who in actuality are Mike Masnick sockpuppeting.
      /s

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Nov 2020 @ 2:01am

      Re: Even "Thad the Ant-Slayer" sees that your own likeness is YO

      "And clearly, photographer is just a liberal smartass trying another means to harass the McCloskeys."

      What if those dumbasses had simply stayed indoors?
      Who was harassing whom here?

      reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 11 Nov 2020 @ 12:39pm

    Branding

    Again, this is a vexatious, garbage SLAPP suit, which appears mostly designed to punish the photographer for sending them that bill.

    Very on brand for this couple.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Nov 2020 @ 6:40am

      Re: Branding

      It is, which is why this couple should be endlessly mocked, humiliated, insulted, degraded, and bullied wherever they go for their rest of their lives. They are violent white supremacist trash and they should be made unwelcome EVERYWHERE.

      With any luck, I'm going to outlive them. I look forward to shitting on their graves.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Nov 2020 @ 9:25am

        Re: Re: Branding

        That's a good idea. Wherever they go, for the rest of their lives, they should be treated like the trash they are.

        if they walk into a restaurant, other patrons should stand up, get in their faces, and scream obscenities at them. If they show up at the movies or a concert, same treatment. In both cases, of course, management should throw them out - physically if necessary. Just tell them that they're "trespassing" and have the goons rough them up and throw them into the street.

        They should never be allowed a moment's peace or enjoyment in any public setting. No dinners out, no baseball games, no art museums: nothing. Everywhere they go they should be bullied, as much as possible, as often as possible.

        They should be expelled from all clubs and organizations that they belong to. They should have their newspaper and magazine subscriptions cancelled. They should be cut off from decent society.

        No pity. No mercy. NONE.

        Oh and I would certainly appreciate it if people would livestream some of this. We're short on entertainment in this pandemic and watching these two be humiliated and degraded, over and over again, without limits....well that's the kind of quality programming I'd like to see.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Nov 2020 @ 1:17pm

    I think it was settled in the monkeys case... there is indeed copyright when taking pictures of non thinking creatures, no?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Nov 2020 @ 1:40pm

    "Pray for judgement"

    WHEREFORE, Plaintiffs pray for judgment against Defendants Greenblatt and UPI, in a fair and reasonable sum in excess of $25,000.00,

    What does one say when someone represents themselves, & the pair happen to be lawyers?

    pray for anyone who has hired either half of this couple to represent them in a legal proceeding.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 11 Nov 2020 @ 1:51pm

      What does one say when someone represents themselves, & the pair happen to be lawyers?

      “Hope one of y’all signed a pre-nup.”

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2020 @ 2:09pm

      Re: "Pray for judgement"

      Why, for protecting their private property? You do know that mob were all trespassing on Private Property!!!! YEP!! They broke down a gate and went right past the Private Property sign posted next to that gate.

      If anything, everyone in that MOB should be arrested for trespassing. They ignored the posted sign. That was their warning. Many of those criminals caught on video trespassing. They should be tracked down and arrested.

      The 2 had every right to protect their property from the trespassing MOB on their property. The MOB had no right to be there. I know all you leftists support criminals. That is what every single one of them are, a CRIMINAL.

      reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 11 Nov 2020 @ 6:42pm

    Mass Mailing

    A thousand cards may lead to some billable hours.

    I doubt they have that many friends or relatives.

    reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 11 Nov 2020 @ 7:59pm

    The print shop involved

    I figured out where the cards were printed from video.

    It is called Hi/Tec Copy Center. It is caddy-corner from Washington University. I'm sure their business is really hurting as the Wash U students would walk there. Due to Covid-19, the campus is barely open.

    Interestingly, the hitteccopy[.]com website certificate expired today.

    reply to this | link to this | view in chronology ]

  • identicon
    Michael Hansen, 18 Nov 2020 @ 9:23am

    Photo rights.

    It would seem fair for a photographer to receive compensation for his professional services. In this instance where a photo was taken without permission of the subjects, perhaps dual ownership could be entertained. The subjects could use this photo for strictly personal use while all commercial rights remain with the photographer.

    reply to this | link to this | view in chronology ]


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