From Accident Photos to the White House: Contesting Photo Use in Newspaper Merchandise Sales

Take a moment to explore your daily newspaper's webpage. You'll likely find recent articles and archives, video materials, job postings, classifieds, sidebars with advertisements, various forms of social media integration, and, most surprisingly (or perhaps not, considering the financial challenges journalism faces), a store. Newspapers including The Los Angeles Times, The New York Times, The Seattle Times, and The Hartford Courant have opened online storefronts that sell page and photo reprints, mugs, t-shirts, and more. One such newspaper used to be the North Adams Transcript, a daily paper in North Adams, Massachusetts that is owned by New England Newspapers. Because of this storefront, they are now defending a lawsuit that raises questions about how to evaluate the newsworthiness defense in privacy cases. In the context of such storefronts, what really matters - content or context?

During July 2008, Thomas Peckham III was the victim of a drunk driving accident. His photo was taken by a photographer for New England Newspapers at the site of the wreck while he waved to family. This photo appeared as part of North Adams Transcript's coverage of the accident and reproductions of the image were made available on merchandise including "tee-shirts, coffee mugs, and mouse pads." In response, Peckham and his family filed a lawsuit against New England Newspapers, Peckham v. New England Newspapers (Civil Action No. 11-30176-KPN). Peckham alleged a violation of his right to privacy and negligent infliction of emotional distress based on the availability of these products.

New England Newspapers filed a motion to dismiss both claims, asserting that Peckham's complaint was not timely served and raising a blanket defense that the publication of matters of legitimate public concern are protected by the First Amendment. Earlier this June, U.S. Magistrate Judge Kenneth Neiman denied this motion to dismiss, focusing on the photo's newsworthiness as a defense to a privacy right violation. Judge Neiman found that Peckham's complaint could survive the motion to dismiss, because it is possible that this defense would not cover the paper's merchandise sales. Judge Neiman recognized claims under two theories of privacy invasion, the publication of private facts and right of publicity, though Peckham focuses on the former.

As a brief background, Massachusetts recognizes a claim for an "unreasonable, substantial, or serious interference" with one's privacy. A publication of private facts claim requires the following elements be proven: the facts are of a "highly personal or intimate nature" and are of "no business to the public." However, Massachusetts has recognized (in the unrelated case of Peckham v. Boston Herald) an exception to liability when the information publicized is of legitimate public concern (considered "newsworthy").

Massachusetts also recognizes a claim for the unauthorized use of a name, portrait, or picture of a person. Within Massachusetts, this right of publicity aims to protect against unauthorized appropriations of an individual's identity for advertising or trade purposes.

In Peckham v. New England Newspapers, Judge Neiman holds that there is no doubt that the photo is of legitimate public concern, at least in the context of reporting on the accident itself. Accordingly, he does not go into much detail regarding whether there may be a substantial interference with Peckham's privacy from the article in the North Adams Transcript. But because newsworthiness in Judge Neiman's view depends upon not only content, but also the nature of its use, he finds that the same photo might be newsworthy in the context of news reporting but not merchandise sales.

This interpretation of the defense, which the judge applies to both theories of privacy in the case, seems to align more with the right of publicity. Focusing more on the use of the information than the information itself or its source, right of publicity law generally includes protection of an individual's picture from unauthorized advertising or trade use.From this perspective, an interesting right of publicity aspect to Peckham's claim lurks in the background and may have significant implications for these newspaper storefronts.

Of course, addressing Peckham's photo and others in light of a right of publicity is not without its challenges. Where should the line be drawn between protecting the newpaper's speech and the individual