Social Media – Page 2 – Paul Porvaznik

“Make Sure You Get My Good Side” – Blogger’s Use of Photo is Transformative, Fair Use – Defeats Copyright Suit (11th Cir.)

As someone who eats, drinks and sleeps social media marketing and blogging, this 11th Circuit case naturally captured my attention.

The plaintiff in Katz v. Chevaldina, 2015 WL 5449883 (11th Cir. 2015), Raanan Katz, a Miami businessman and co-owner of the Miami Heat, sued the defendant – one of plaintiff’s former commercial tenants and a full-time blogger – for using his photograph in 25 separate blog posts that derided Katz’s real estate business practices. The “embarrassing”, “ugly,” and “compromising” photo (according to Katz) was taken by a photographer who originally published it on-line in an Israeli newspaper, the Haaretz. Defendant later found the photo on Google images and used it as an illustration in her scathing posts.

After taking an assignment of the photo’s copyright from its photographer, Katz sued the defendant for copyright infringement. The District Court granted summary judgment for the blogger on the basis that her use of the photograph was satirical commentary and a fair use of the image. Katz appealed.

Held: Affirmed.

Rules/Reasons:

Section 107 of the Copyright codifies the fair use doctrine which posits that use of a copyrighted work that furthers “criticism, comment, news reporting, teaching, scholarship, or research” is not an infringement. 17 U.S.C. s. 107.

The four factors a court considers to determine whether fair use applies are (1) the purpose and character of the allegedly infringing use (here, reproducing the photo of plaintiff on defendant’s blog), (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; and (4) the effect of the use on the potential market or value of the copyrighted work. (*2).

The Court held that three of the four factors (1, 2 and 4) weighed in favor of a fair use and affirmed summary judgment for the defendant.

(1) Purpose and Character

This factor requires the court to consider whether the use serves a nonprofit educational purpose as opposed to a commercial one and the degree to which the infringing use is “transformative” as opposed to a “superseding” use of the copyrighted work.

A use is transformative where it adds something new to a copyrighted work and infuses it with a different character and “new expression, meaning or message.” A use of a copyrighted work doesn’t have to alter or change the work for the use to be transformative.

The court found that defendant’s use of plaintiff’s photo was both educational and transformative. It found that the defendant posted the photo as an adjunct to articles in which she sharply criticized plaintiff’s business practices and she made no money from her use of the photo. Her use of the photo satisfied the “comment” and “criticism” components of the fair use doctrine.

The use of photo was transformative because the defendant used it to make fun of (“satirize”) the plaintiff and impugn his business ethics. At bottom, the defendant’s use of the photo was a critical statement and therefore transformative under copyright law.

(2) Nature of Copyrighted Work

Copyright law gives more protection to original, creative works than to derivative works or factual compilations. Courts consider whether a work was previously published and whether the work is creative or factual. Here, the photo was previously published in an Israeli newspaper and its use in the defendant’s blog was mainly factual.

Noting that “photography is an art form” rife with creative decisions such as tone, lighting, and camera angle, the Katz photo was a simple candid shot taken in a public forum. It lacked any badges of creativity that could give it strengthened copyright protection. The court also pointed out there was no evidence the original photographer sought to convey emotion or ideas through the photo.

(3) Amount of Work Used

This fair use factor considers the amount of the copyrighted work used in proportion to the whole. This factor is less relevant when considering a photograph though since most of the time the entire photo must be used to preserve its meaning. That was the case here: defendant had to use all of Katz’s photo to preserve its meaning. Ultimately, because the defendant used the whole photo as an adjunct to her blog posts, the “amount used” factor was a wash or “neutral”.

(4) Effect of the Infringing Use on the Potential Market for the Work

This factor asks what would happen if everyone did what the defendant did and whether that would cause substantial economic harm to the plaintiff by materially impairing his incentive to publish the work. The court found this fair use factor easily weighed in defendant’s favor. In fact, the plaintiff profoundly disliked the photo and did not want it published anywhere at any time. According to the court, because Katz used copyright law to squelch defendant’s criticism of him, there was no potential market for the photo.

Afterword:

Since three of the four fair use elements weighed in favor of the defendant, the court found that her use of the plaintiff’s photo was a fair use and immune from copyright infringement liability.

This case provides a useful detailed summary of the four fair use factors along with instructive analysis of each factors sub-parts. The Katz case is especially pertinent to anyone facing a copyright claim predicated on a claimed infringing use of a Google images photograph used to enhance on-line content.

‘It Seemed Like a Good Idea At The Time’: Revenge Porn In Illinois – A Crime With Myriad Civil Components

Nation-wide vilification of revenge porn (“RP”) – the unconsented on-line dissemination of sexual photos or images of others (almost always females) – reached an ironic crescendo on Good Friday of 2015 when a California judge sentenced Kevin Bollaert, 28, proprietor of the UGotPosted.com and ChangeMyReputation.com Websites, to an 18-year prison term after a jury convicted him of identity theft and extortion.1

Mr. Bollaert’s sites allowed users (usually jilted paramours) to post intimate photos of third parties without their permission. When the terrified photographed party would contact the site to take the images down, Mr. Bollaert would then extract (extort?) a “settlement” payment from the party.

The near two-decades long jail sentence can be viewed as a culmination of cultural outrage at RP as evidenced by a flurry of civil verdicts across the country and (at current writing) 16 state legislatures criminalizing the practice. Mr. Bollaert’s lengthy punishment, aside from giving him some time to consider “was it worth it?”, may also prove a symbolic harbinger of what’s to come for future RP peddlers.

Hostility toward RP has bled into varied sectors of society. In the international realm, Great Britain recently (April 2015) criminalized the practice by enacting a law that provides for tough penalties against RP defendants and other nations across the globe are likely to follow suit.2

RP has infiltrated the sports arena, too. In December of last year, New York Jets linebacker Jermaine Cunningham was arrested and charged after he posted naked photos of his ex-girlfriend on-line and sent them to her family members (ouch!). Mr.vCunningham pled not guilty in May 2015 to various criminal invasion of privacy charges.3

Most recently, RP hit the news on an astronomical scale as Google, the Web search behemoth, announced it would allow anyone to delete images posted without their permission.4 Social media titans Twitter, Facebook and Reddit followed in Google’s wake and announced similar policies that police the posting of sexually explicit media.5

But while RP’s criminalization garners the most media attention – Illinois’ own statute, which took effect in June 2015, is praised by privacy advocates as particularly robust 6 – RP also gives rise to a plethora of civil causes of action and provides fertile ground for creative lawyering.

This article briefly discusses the various civil claims under Illinois law that are implicated in a case where a defendant – be it an individual or Website owner – posts sexual photos without someone’s consent.

Wikipedia describes RP as “sexually explicit media that is publicly shared online without the consent of the pictured individual.”7 Typically, RP is uploaded by a victim’s ex-partner whose goal is to shame the imaged victim and who sometimes includes the victim’s name, social media links and other identifying information.

Many times, the salacious images are “selfies”, pictures taken by the RP victim. The harmful impact of RP is (or should be) self-evident: sociologists and psychologists have studied RP recipients and heavily documented the toxic psychological, social and financial ramifications they suffer.8

The legal community has also taken notice of RP’s proliferation in this digitally-drenched culture. Witness international mega-firm K&L Gates’ recent launch of a legal clinic dedicated to helping RP plaintiff’s get legal redress

Civil verdicts

Civil suits against RP defendants appear to be gaining traction. For just in the past year or so, juries and judges in several states have hit both individual and corporate RP defendants with substantial money judgments. A California and Ohio court recently socked RP defendants with $450,000 default judgments and civil juries in Florida and Texas awarded RP plaintiffs $600,000 and $500,000, respectively. 10, 11.

My research has revealed only a single revenge porn case pending in Illinois, but no published decisions yet. 12

“So What’s A Gal (Almost Always)/Guy To Do?” – Common Law and Statutory Civil Claims

Aside from lodging a criminal complaint, an RP plaintiff has an array of common law and statutory remedies at her disposal. A brief summary of the salient causes of action under Illinois law that attach to a revenge porn follows.

(1) Invasion of Privacy – Public Disclosure of Private Facts

Illinois recognizes four common-law invasion of privacy torts, those being (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another’s name or likeness; (3) a public disclosure of private facts; and (4) publicity that reasonably places another in a false light before the public. 13

To state a common law claim for invasion of privacy through public disclosure of private facts, a plaintiff must prove: “(1) publicity was given to the disclosure of private facts; (2) the facts were private, and not public, facts; and (3) the matter made public was such as to be highly offensive to a reasonable person.” 14

Generally, to satisfy the publicity element of the tort, a plaintiff must show that the information was disclosed to the public at large; however, the publicity requirement may be satisfied where a disclosure is made to a small number of people who have a “special relationship” with the plaintiff. 15 An invasion of a plaintiff’s right to privacy is important if it exposes private facts to a public whose knowledge of those facts would be embarrassing to the plaintiff.

This might equate to the “general public” if the person is a public figure, or a particular public such as fellow employees, club members, church members, family, or neighbors, if the person isn’t a public figure. 16

Invasion of privacy damages include actual, nominal, and punitive ones. 17

An intrusion on seclusion invasion of privacy plaintiff must show: (1) an unauthorized intrusion or prying into a plaintiff’s seclusion; (2) the intrusion is highly offensive or objectionable to a reasonable person; (3) the matters upon which the intrusion occurred were private; and (4) the intrusion caused anguish and suffering. 17-a

RP Application: Posting a sexual image on the Internet would qualify as “publicity” and “private” matters under any reasonable interpretation. And nonconsensual posting would signal highly offensive content to a reasonable person. The plaintiff’s biggest hurdle would be quantifying his damages in view of the paucity of published RP cases. But judging from the above default and jury awards, damages ranging from $450,000-$600,000 don’t seem to shock the court’s conscience. In addition, an intrusion on seclusion claim could fail if the RP case involved a selfie – since that would seem to defeat the “private” and “seclusion” elements of the tort.

(2) Illinois Right of Publicity Act (the “IRPA”)

In 1999, IRPA replaced the common law misappropriation of one’s likeness – the second (2) above branch of the four common-law invasion of privacy torts outlined above. Illinois recognizes an individual’s right to “control and to choose whether and how to use an individual’s identity for commercial purposes.” 18 The right of publicity derives from the right to privacy and is “designed to protect a person from having his name or image used for commercial purposes without (her) consent.” 19

“Commercial purpose” under the IRPA means the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising. 20 “Identity” means “any attribute” of a plaintiff including a photograph or image of the person. 21

Plaintiff must prove revenue that a defendant generated through the use of Plaintiff’s image. Failing that, plaintiff can recover statutory damages of $1,000. 22. An IRPA plaintiff can also recover punitive damages and attorneys’ fees. 23.

RP Application: RP fits snugly within IRPA’s coverage. It specifically applies to photographs or images. If the RP defendant was making money off the unconsented Web postings, and IRPA claim could prove both a viable and valuable claim that would allow the plaintiff to recover statutory damages and attorneys’ fees.

(3), (4) Intentional and Negligent Infliction of Emotional Distress

“To prove a cause of action f0r intentional infliction of emotional distress, the plaintiff must establish three elements: (1) extreme and outrageous conduct; (2) intent or knowledge by the actor that there is at least a high probability that his or her conduct would inflict severe emotional distress and reckless disregard of that probability; and (3) severe emotional distress.” 24

A negligent infliction of emotional distress plaintiff must plead and prove the basic elements of a negligence claim: a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. 25 A bystander negligent infliction plaintiff must prove a physical injury or illness resulting from the conduct. 26

Since literally millions consume social media on a daily basis (27), perhaps it’s not a stretch to see a bystander make out a negligent infliction claim based on RP aimed at a bystander’s close relative for example.

RP Application Under prevailing social mores, posting sexually explicit media designed to shame someone or to extract money from them would likely meet the objectively extreme and outrageous test. The intent or reckless disregard element would likely be imputed to a defendant by virtue of him publicizing the offending material. The unanswered questions would be damages. Putting it rhetorically, how would you (judge or jury) compensate the RP where there is no precise numerical formula?

(5) Copyright Infringement

Copyright infringement as applied to the RP setting represents a creative – and some way the best – way to attack RP. 28 The Federal copyright scheme particularly fits a RP situation involving “selfies” – which, by some accounts, make up nearly 80% of RP claims. 29

Copyright law gives an owner the exclusive rights – among others – to duplicate and exhibit a work. Copyright protection exists for any work fixed in a tangible medium and includes photographs and videos. 30 The copyright infringement plaintiff must establish (1) she owns the copyright in the work; and (2) the defendant copied the work without the plaintiff’s authorization.18 Inputting a copyrighted work onto a computer qualifies as “making a copy” under the Copyright Act. 31

The catch here is that formally registering the work is a precondition to filing suit for infringement. 32

Being able to sue a defendant for copyright infringement is obviously an important right since that is copyright law’s “teeth”: a winning copyright plaintiff can recover statutory damages, actual damages plus attorneys’ fees. 33

But it begs the question – is it realistic that an RP plaintiff is going to draw more attention to a salacious photo by registering it with a Federal government agency? Not likely. Nevertheless, a copyright claim could lie for RP conduct involving a plaintiff’s selfies if she registered them with the US Copyright office.

What about the CDA (Communications Decency Act)?

Another important consideration in the RP calculus involves Section 230 of the Communications Decency Act (“CDA”) – a statute on which much electronic “ink” has spilled and that is beyond the scope of this article. 34 Basically, as I understand it, the CDA immunizes Web service providers (Comcast, AOL, etc.) from a third-party’s publication of offensive content but not Web content providers. 35 So the CDA inquiry distills to whether a Website defendant is a service provider (in which there would be immunity) or content provider (in which case there wouldn’t be).36.

(6) Negligence

A common law negligence action against an RP spreader constitutes another creative adaptation of a tried-and-true cause of action to a decidedly post-modern tort (and crime). An Illinois, a negligence plaintiff must plead and prove (1) the defendant[s] owed a duty of care; (2) the defendant[s] breached that duty; and (3) the plaintiff’s resulting injury was proximately caused by the breach. 37

The plaintiff would have to prove that the RP defendant owed a duty of care not to post and distribute intimate images of the plaintiff, that the defendant breached the duty by indiscriminately posting the image, and that plaintiff suffered injury as a proximate cause.

Like the privacy torts encapsulated above, the key questions seem to be causation and damages. That is – what numerical damages can the RP plaintiff establish that are traceable to the illicit (electronic) is is publication? Conceivably, she could request lost wages, medical and psychological treatment costs, pain and suffering, loss of a normal life, etc. – the entire gamut of damages a personal injury plaintiff can seek.

Afterwords:

RP is a subject whose contours seem to be in perpetual flux as the law is fluid and still developing. In fact, by the time this article is published, it’s possible that there will be a flurry of legislative, political and even case law developments that make some of the contents dated.

That said, as on-line privacy issues and social media use continue to pervade our culture and expand on a global level, and as publishers of private, salacious photographs aren’t learning their collective lesson, RP will likely secure its foothold in cyberlaw’s criminal and civil landscapes.

The above is not an exclusive list of potential revenge porn causes of action. As states (and countries) continue to enact laws punishing RP, it’s likely that civil damage claims attacking the practice will mushroom in lockstep with RP’s rampant criminalization.

References:

1. http://www.nbcsandiego.com/news/local/Kevin-Bollaert-Revenge-Porn-Sentencing-San-Diego-298603981.html

2. http://www.independent.co.uk/news/uk/home-news/revenge-porn-illegal-in-england-and-wales-under-new-law-bringing-in-twoyear-prison-terms-10173524.html

3. http://www.msn.com/en-us/sports/nfl/nfl-linebackers-case-highlights-rise-of-revenge-porn-laws/ar-BBj8sP9

4. http://bigstory.ap.org/article/ff3b7f7b697b4af295935ed6a482ca1e/google-cracks-down-revenge-porn-under-new-nudity-policy

5. http://www.huffingtonpost.com/mary-anne-franks/how-to-defeat-revenge-porn_b_7624900.html

6. http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-1138 (text of Illinois’ revenge porn law, eff. 6.1.15)

7. https://en.wikipedia.org/wiki/Revenge_porn

8. http://www.huffingtonpost.com/mary-anne-franks/how-to-defeat-revenge-porn_b_7624900.html

9. http://dealbook.nytimes.com/2015/01/29/law-firm-founds-project-to-fight-revenge-porn/?_r=0

10. http://arstechnica.com/tech-policy/2015/03/revenge-porn-creepsters-ordered-to-pay-900000-in-default-judgment

11. http://www.brownanddoherty.com/florida-jury-delivers-record-setting-600000-00-verdict-in-revenge-porn-case.php; http://www.houstonchronicle.com/news/houston-texas/houston/article/Jury-awards-500-000-in-revenge-porn-lawsuit-5257436.php6.

12. http://articles.redeyechicago.com/2014-03-11/news/48127548_1_hunter-moore-mary-anne-franks-legislators

13. Ainsworth v. Century Supply Co., 295 Ill.App.3d 644, 648, 230 Ill.Dec. 381, 693 N.E.2d 510 (1998).

14-16. Miller v. Motorola Inc., 202 Ill.App.3d 976, 978, 148 Ill.Dec. 303, 560 N.E.2d 900, 902 (1990), citing W. Keeton, Prosser & Keeton on Torts § 117, at 856–57 (5th ed.1984)

17. Lawlor v. North American Corporation, 2012 IL 112 530, ¶¶ 58-65

17-a. Huon v. Breaking Media, LLC, 2014 WL 6845866 (N.D.Ill. 2014)

18-19. Trannel v. Prairie Ridge Media, Inc., 2013 IL App (2d) 120725, ¶¶ 15-16

20. 765 ILCS 1075/1.

21. 765 ILCS 1075/5

22. 765 ILCS 1075/40(a)(2)

23. 765 ILCS 1075/40(b)

24. Doe v. Calumet City, 161 Ill.2d 374 (1994)

25-26. Rickey v. CTA, 98 Ill.2d 546 (1983)

27. http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/ (Facebook has 1.44B users; Twitter has 236M; Instagram – 300M)

28-29. http://www.washingtonpost.com/news/the-intersect/wp/2014/09/08/how-copyright-became-the-best-defense-against-revenge-porn/

32. 17 U.S.C. § 1104

33. http://copyright.gov/circs/circ01.pdf

34. https://www.law.cornell.edu/uscode/text/47/230

35. http://www.defamationremovallaw.com/what-is-section-230-of-the-communication-decency-act-cda/

36. Zak Franklin, Justice for Revenge Porn Victims: Legal Theories to Overcome Claims of Civil Immunity by Operators of Revenge Porn Websites, 102 Cal. L. Rev. 1303 (Oct. 2014).

37. Corgan v. Muehling, 143 Ill.2d 296, 306 (1991)

Facebook Posts Not Hearsay Where Offered To Show How Ex-Wife Presented Relationship To Others – Illinois Case Note

Reversing a family law judge’s decision to terminate ex-spousal maintenance, the Second District appeals court in In re Marriage of Miller, 2015 IL App(2d) 140530 delves into the foundation requirements for getting Facebook pages into evidence and again highlights the crucial role social media plays in litigation in this digitally saturated culture.

The trial court granted the ex-husband (“Husband”) motion to terminate maintenance payments to his ex-wife (“Wife”) based on her multiple Facebook posts that she was in a relationship and (presumably) living with another man. Illinois divorce law posits that maintenance payments must cease when the recipient remarries or cohabitates with another on a continuing basis.

Since the Facebook posts revealed the Wife frequently trumpeting her new relationship, the court found that the policies behind maintenance payments would be compromised by allowing the Wife to continue receiving payments from Husband.

The Wife appealed, arguing that the trial court shouldn’t have allowed her Facebook posts into evidence.

Held: Reversed (but on other grounds). Wife’s social media posts were properly authenticated, not hearsay and any prejudice to her didn’t substantially outweigh the posts’ probative value.

Rules/reasoning:

– To enter a document into evidence at trial or on summary judgment, the offering party must lay a foundation for it;

– The party offering the document into evidence – including a document to impeach (contradict) a witness on the stand – must authenticate the document through the testimony of a witness who has personal knowledge sufficient to satisfy the court that the document is what the proponent claim it is;

– To lay a foundation for an out-of-court statement (including a document), the party attempting to get the statement into evidence must direct the witness to the time, place, circumstances and substance of the statement;

– Hearsay is a statement, other than made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted;

– When the making of statement is the significant fact, hearsay isn’t involved (ex: the mere fact that a conversation took place isn’t hearsay);

Here, the court found that the Facebook posts weren’t offered for their truth. Instead, they were offered to illustrate the way the Wife was portraying her current relationship to others. The court deemed the posts relevant to the issue of how “public” or “out in the open” the Wife was about the relationship.

And since the Husband didn’t offer the posts for the truth of their contents (that Wife was in fact living with someone and so disqualified from further maintenance payments) but instead to show the court the manner in which the Wife presented the relationship to others, the court properly allowed the posts into evidence.

The Second District also agreed with the trial court that the posts didn’t unfairly prejudice the Wife. Indeed, the court characterized the posts as “bland”, “cumulative” and less effective than the parties’ live testimony.

(¶¶ 33-38)

The Wife still won though as the appeals court reversed the trial court’s decision to terminate Husband’s maintenance obligations. The court found that more evidence was needed on the specifics of the Wife’s existing relationship including whether it was continuing and conjugal enough to constitute a “de facto marriage” (as opposed to a “dating” relationship only) and thus exclude the Wife from further maintenance payments from Husband.

Take-aways:

Hearsay doesn’t apply where out-of-court statement has independent legal significance;

Facebook posts authored by a party to lawsuit will likely get into evidence unless their prejudice outweighs their probative value;

Where social media posts are authored by third parties, it injects another layer of hearsay into the evidence equation and makes it harder to get the posts admitted at trial.

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