Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Do As I Say, Not As I Do

    Jul 27, 2016
    The Columbus Dispatch reports that the Pike County Coroner, David Kessler, has completed the autopsy reports on brutal slayings in Pike County Ohio.  And, contrary to Ohio Law, he is refusing to produce copies.  He is relying on Ohio Attorney General Mike DeWine for support on this illegal action. 

    It appears that Kessler is citing a 1984 Ohio Supreme Court case – State ex rel Dayton Newspapers v. Rauch – where the Court ruled that autopsy reports are exempt from the Ohio Public Records Act.   But in legislation adopted after that 1984 decision, the Ohio Legislature made it clear the Rauch case is no longer controlling.  Revised Code 313.10 provides:   

    Except as otherwise provided in this section, the records of the coroner who has jurisdiction over the case, including, but not limited to, the detailed descriptions of the observations written during the progress of an autopsy and the conclusions drawn from those observations filed in the office of the coroner under division (A) of section 313.13 of the Revised Code, made personally by the coroner or by anyone acting under the coroner's direction or supervision, are public records.  (emphasis added)

    This statute begs the question -- what part of “ARE PUBLIC RECORDS” do these guys not understand?

    The same statute then specifically lists those records that are not public record: 

    2) Except as otherwise provided in division (D) or (E) of this section, the following records in a coroner's office are not public records:

    (a) Preliminary autopsy and investigative notes and findings made by the coroner or by anyone acting under the coroner's direction or supervision;

    (b) Photographs of a decedent made by the coroner or by anyone acting under the coroner's direction or supervision;

    (c) Suicide notes;

    (d) Medical and psychiatric records provided to the coroner, a deputy coroner, or a representative of the coroner or a deputy coroner under section 313.091 of the Revised Code;

    (e) Records of a deceased individual that are confidential law enforcement investigatory records as defined in section 149.43 of the Revised Code;

    (f) Laboratory reports generated from the analysis of physical evidence by the coroner's laboratory that is discoverable under Criminal Rule 16.

    This section begs another question – if the autopsy is exempt in its entirety, why provide specific carve outs, especially for the “preliminary autopsy”?  If the autopsy is exempt, then by definition the preliminary autopsy is exempt.  Under the interpretation invented by the Coroner and the AG, the statute is utterly meaningless.  

    And even with those excepted records, the statute provides as follows:    

    (D) A journalist may submit to the coroner a written request to view preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner or by anyone acting under the coroner's discretion or supervision. The request shall include the journalist's name and title and the name and address of the journalist's employer and state that the granting of the request would be in the best interest of the public. If a journalist submits a written request to the coroner to view the records described in this division, the coroner shall grant the journalist's request. The journalist shall not copy the preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent.

    But, and this probably comes as no surprise at this point, the coroner won’t let any journalists see the information which the Ohio Revised Code absolutely requires them to provide for inspection.

    We hear our elected officials talk a lot about respect for the rule of law.  It would probably sound more sincere if they showed a little respect for it themselves.   
    Go comment!
  • Twitter Not Busting the First Admendment

    Jul 21, 2016
    I haven’t seen the new Ghostbusters film.  I thought the original was just okay, and I’m not sure how adding Kristin Wiig to the mix makes it any better.   

    But even if the movie is truly awful (and it’s scoring a 73% on Rotten Tomatoes, so it probably isn’t) there is no excuse for the kind of abuse co-star Leslie Jones has been enduring on Twitter recently.  I won’t dignify any of the tweets by repeating them here, because they are cruel and racist in an unfathomable manner.   

    In response, Twitter has permanently banned writer Milo Yiannopoulos from using the platform.   It is sort of a lifetime achievement award.  Yiannopoulos has a history of trolling objects of his scorn.  Apparently, Twitter has had enough.  And predictably, Yiannopoulos sees in Twitter’s actions political correctness run amuck and the end of “free speech.”   

    It is neither.  First off, let’s hope Yiannopoulos is not invoking the First Amendment here.  Because it doesn’t apply.  The First Amendment applies to “state action.”  And Twitter, a private company, is not the state.  It is free to set up codes of conduct and enforce them as it sees fit.  And whether it makes good decisions or bad decisions in executing the policy, it doesn’t violate anyone’s constitutional rights.   

    And if you want to rail against “political correctness” this is probably not where you want to plant your flag.  A number of the tweets compared her to an ape and used the n word. It’s not “politically correct” for Twitter to crack down on that type of behavior. It’s just correct. 
    Go comment!

    Jul 17, 2016

    One of the nice things about doing a blog is the tips I receive from readers.  A recent one came from my friend Pat, a fellow Reds fan and loyal reader.  (Waiting for jokes about his bad judgment on both items).  But Pat figured I would be interested in this item that appeared in the Cincinnati Enquirer earlier this month.

     It concerns Pete Rose’s libel suit against John Dowd.  Pete contends that Dowd libeled him last year when Dowd appeared on a radio show in Philadelphia and made the following comment: 

     “Michael Bertolini told us that not only did he run bets, but he ran young girls for him down in spring training. Ages 12-14,” “Isn't that lovely? So that's statutory rape every time you do that. So he's just not the kind of person that I find very attractive. He's a street guy.”  Bertolini is a former associate of Pete’s. 

     No doubt, Pat figured this story is in my absolute sweet spot – baseball and libel law.  Two things I love.  And he’s right.  But I should add a caveat.  Despite the fact that I am a devoted Reds fan and belong in the absolute target demographic for Pete Rose – a west side Cincinnati native, raised by a baseball fanatic , having turned 12 in 1970 – I am not a Pete fan.  Not to belabor the point, but he disgraced the Reds franchise, lied for over a decade, and has lived a life utterly devoid of class.  I am done with him.  So, I am not inclined to be rooting for him in this litigation.  But let’s look at this objectively.  And it does raise some interesting questions.

     1.            Pete filed the case in a federal court in Philadelphia. I wonder why Pete didn’t try to find a way to sue Dowd in Cincinnati?  I’m not sure how he would have done that, but it’s hard to imagine a more favorable jury pool.  I think my views on Pete are distinctly in the minority. The average Cincinnati juror in this case would likely have one question – “how much do you want Pete?”   

     2.            I suppose the statute of limitations has run, but John Dowd could theoretically have a counter claim for libel against Pete.  In all the years Pete lied about not betting on baseball a subtext was that Dowd’s report was inaccurate and biased.  That wasn’t true and Pete knew it.  That sounds like libel to me.  But Dowd chose not to pursue the claim when Pete was spewing the lies, and he is now likely barred by the statute of limitations. 

     3.            As a factual matter, Pete has to prove Dowd’s allegations are false.  He may not have too much trouble with that.  Bertolini has denied ever making the statements.  If all Dowd has is what Bertolini told him, he may have his hands full defending himself.

     4.            As a legal matter, Dowd has a few options.  One is a theory called the “libel proof” plaintiff.  Where a person’s reputation is sufficiently tarnished, the law holds that there’s really no way to make it worse.  So any given statement does not make the situation worse.  If someone incorrectly said that a serial killer was also a shoplifter, the serial killer doesn’t have a case.  I’m not sure that defense will fly here.  Pete’s lawyer, Ray Genco has issued a statement that suggests he’s anticipating this defense: 

      “[N]o matter what his transgressions in the past may have been, no matter what you may think of him in terms of the baseball Hall of Fame debate, it's not open season to the point you can accuse them of being a pedophile," 

     He’s probably got a point.

     5.            Pete is no doubt a “public figure” which means he must prove that Dowd made the comment with “actual malice.”  That means Dowd had to know the statement was false or was “reckless” when he made it.  This is a tough standard – by design.  And it’s tough to prove a person’s mindset.  But if Bertolini is convincing in his testimony that he never said that to Dowd, and if Dowd has no other source, Pete has a pretty good shot on this. 

     6.            In order to prove the statement is false, Pete has to prove the statement wasn’t “substantially true.”  This means even if the statement isn’t literally true, if the gist is accurate, it’s not false.  For example, if someone said Pete bet on baseball 20 times, when in fact it was only 10, the statement would be substantially true.  Where this may play out here is if Dowd can establish that Pete was having sex with young women – even if they weren’t actually as young as 12 or 14.  I don’t know if that is the case, but it should make for interesting discovery. 

     7.            Pete may not have to establish actual damage. That is, the claim is defamatory per se.  A court may presume that Pete’s reputation was harmed by the very nature of the statement.  But apparently, Pete contends that he lost a $250,000 endorsement deal from Skechers  footwear after the story broke.  So, even if he had to prove actual damage, he’s potentially got the goods. 

     We will see.  It would be ironic if Pete wound up with the last laugh here.  But this is the legal equivalent of the first inning. There is no doubt much more to come.  Stay tuned.

    Go comment!

    Jul 15, 2016

    Here’s a piece that came in while I was on vacation ( I am reluctantly back in the office).  It’s about a private e-mail server that contains federal government records.  But it’s not about Hilary Clinton.  It actually concerns a science advisor to President Obama named John Holdren. He maintained a private e-mail account at the Woods Hole Research Center in Massachusetts. 

     A non-profit organization called the Competitive Enterprise  Institute made a Freedom of Information request for e-mails related to Holdren’s work at the U.S. Office of Science and Technology Policy.  A District Court ruled that the OSTP was not required to search an e-mail account that was not part of the OSTP’s official system.  That ruling effectively put the e-mails at Woods Hole off limits.

     The United Court of Appeals for the D.C. Circuit, however, reversed the District Court’s ruling.  Judge David Sentelle put it simply and elegantly:

     "If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose [government transparency] is hardly served. It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control."

    The point is, the nature of the document determines whether it’s a public record. Where I store it isn’t the determining factor.  If I put a pair of my boxers in the sock drawer, that doesn’t make them socks.  They remain underwear.  The analogy holds true here.

     This rather obvious ruling should be a universal rule for purposes of the federal FOIA statute and for every state open records law.  If courts consistently adopt and apply this intuitive rule, maybe government officials – I’m looking at you Hilary Clinton and Sarah Palin – would be a little less inclined to play games and skirt their duties to the public. 

     Hey, a guy can dream, right?

    Go comment!

    Jun 27, 2016

    A consortium of media outlets – including the strange bedfellow coupling of The Washington Post and Fox News – are engaged in litigation in a California federal court seeking the release of a number of video depositions filed in the now infamous case against Trump University.    

     The case serves as an interesting tutorial on what it takes to shut down public access to court related materials.

     The specific fight at issue here arose when the plaintiffs in the suit sought leave to file 32 video clips from a December 10, 2015 and  January 21, 2016 deposition of the defendant Trump. The defendant in question –presumptive Republican presidential nominee Donald Trump --   doesn’t want the clips released.  The plaintiffs wish to file the clips in conjunction with their opposition to a motion for summary judgment filed in the case by Trump.  This is significant, because while “discovery materials” are typically not shared with the public, once they are filed in a proceeding, they become (or should become) publicly available.  And once they are filed, the presumption that they are publicly available can be overcome only upon evidence that demonstrates  an “overriding interest” requiring that they be kept private.  In other words, to borrow a quote from Vice President Biden it’s a “big f*#*ing deal” to deny the public access to court records.

     Trump’s argument was based on a blustery recitation of all the terrible things that would happen if he didn’t get his way.  His litigation style evidently comes from the same playbook as his campaign strategy.  Trump is apparently concerned that release of the video clips will deny his Sixth Amendment right to a fair trial.  He of course presented no evidence supporting this concern, which in itself should doom his position. 

     But that’s not the only problem with his argument on this point.  Courts have routinely rejected the notion that pretrial publicity – even substantial negative publicity – automatically means a defendant can’t get a fair trial.  Juries that have decided cases arising from the Manson murders and Watergate provide compelling examples that they can get highly publicized trials right.  Frankly, Trump’s argument displays an appalling lack of trust in the process and the citizens that serve.  It’s no surprise to me that he can’t  muster any evidence to prove his thesis. 


    Trump’s position as the presumptive nominee makes this case a matter of public interest. And given that this is the case presided over by the Indiana born “Mexican” judge, the interest is even greater thanks to Trump’s own comments. 


    Ultimately Trump is likely to learn that even he can’t dictate what the public learns about him.  He called the judge’s integrity into question – the public has a right to decide for themselves if there is anything to those charges.  And to do that, the public is entitled to see the evidence.  All of it.  Whether Mr. Trump likes it or not.  

    Go comment!

    Jun 24, 2016

    Led Zeppelin won their well- publicized court case this week over the origins of their massive hit “Stairway to Heaven.”  The estate of the Randy Wolfe, the lead singer and songwriter for the band Spirit brought the copyright infringement suit, claiming Robert Plant and Jimmy Page stole the opening riff from a Spirit song called “Taurus.”  I’m not sure how many of the jurors made out during a slow dance to “Stairway” and to what extent that influenced their verdict, but for now – at least pending appeal – it’s a win for Led Zeppelin. 


    The Salon post is an interesting take.  The author – Scott Timberg -- notes that Page and Plant had a bit of a reputation for “borrowing” other people’s music.  But on balance, Timberg points out that the verdict is good for the creative process.  The simple truth is that there are only so many notes and so many chords.  Here’s a great illustration

    Sometimes cases are more significant for what they might have done then what they did.  In this case, a jury essentially concluded that the two songs weren’t similar enough to justify infringement.  That’s a big deal for the parties, but probably doesn’t have too much precedential value. 


    Had the jury gone the other way, however, the damages would have been astronomical.  And given the fact that lots of songs use similar chord progressions, that may have incentivized lots of struggling artists and their struggling lawyers.  Talk about wealth distribution.  In this case the money would have flowed from rock stars to lawyers.  I wonder if the groupies would have followed.    

    Go comment!
  • The "P" is for Propaganda

    Jun 23, 2016
    If you’ve driven on an Ohio highway, you’ve probably seen police cars with the letters “OSHP” emblazoned on the side.  And it’s likely you assume those letters stand for “Ohio State Highway Patrol.”   I’m not so sure.  I am increasingly coming to the conclusion that the “P” stands for “Propaganda.”   

    Merriam-Webster defines “propaganda” as  “ideas or statements that are often false or exaggerated and that are spread in order to help a cause, a political leader, a government, etc.”  This is accurate, but I think more generally, propaganda happens whenever the government controls the message.  And I suppose an organization of police is bound to be, let’s say “control oriented.”  

    This thought comes to mind as I think about last week’s argument in the Ohio Supreme Court about whether footage from the Ohio Highway Patrol dash board camera is a public record. The Highway Patrol took the position in that case that the footage of a vehicle pursuit (“car chase” in plain English) is an “investigatory record,” the release of which would disclose “investigatory work product.”  Did I mention the footage is the film of one car chasing another car? Perhaps NASCAR should get in on this and start calling it the “Daytona 500 Investigation.”    Just a thought. And I guess whoever is running behind Usain Bolt in Rio later this summer will be conducting an “investigation” as well.  

    And while the Highway Patrol’s position is pretty ludicrous on its face, it’s worse when considered in light of the Patrol’s PR activities.  I noticed this nugget the other day on the Highway Patrol’s Web site:  

    Troopers Discover Heroin, Cocaine in Scioto County Traffic Stop

    Troopers stopped a 2015 Chrysler 200, with Pennsylvania registration, for a speed violation on U.S. 23 southbound, near milepost 8, in Scioto County at 8:17 p.m., on June 11. Criminal indicators were observed and a Patrol drug-sniffing canine alerted to the vehicle. A probable cause search revealed a small amount of cocaine residue on the front seat. A search of the passenger revealed approximately 157 grams of heroin in his shoes. After interviewing the suspect, he admitted to having another 40 grams of cocaine, eight grams of heroin, and a semi-automatic weapon at his residence. The contraband has a street value of $28,752. The suspect, Robert L. Turner, 34, of Portsmouth, Ohio was incarcerated in the Scioto County Jail and charge with possession of heroin and trafficking in drugs, both first-degree felonies.        

    I am trying to figure out why the Highway Patrol gives such a detailed description of this incident on its Web site, but won’t produce the video that would disclose the same events.  Why can we read the book, but not see the movie?  Footage would allow the public to see the demeanor of the police and the suspect, whether the police needed to use any force and whether the level of force used appropriate. But it wouldn’t disclose any confidential information or other “investigatory work product.”  What this does illustrate, though, is how the Patrol can use the law to control the message.  The public sees what the patrol wants it to see, if and when the Patrol wants the public to see it.   

    And the same applies to video of vehicle pursuits.  The Patrol has its own YouTube channel.  And guess what’s on it?  If you guessed dash board camera footage of vehicle pursuits you would be correct.  Here’s another one.   So on those chases that the Patrol thinks are cool go to YouTube.  But if you want footage that the Patrol doesn’t want to share, you’re out of luck.   

    That's not transparency - that's propaganda.
    Go comment!
  • Police Camera Footage

    Jun 16, 2016
    I had the unusual experience this week of arguing two cases before the Ohio Supreme Court back to back.  The cases involved the public record status of police camera. The first case involved an Ohio Highway Patrol dash board camera that captured the pursuit and apprehension of a motorist who was ultimately charged with a number of offenses ranging from a missing license plate to possessing an illegal firearm.  

    The second case involved a missing license plate as well.  In that case, a University of Cincinnati Police Officer, wearing a body camera, pulled a driver over because the car was missing a license plate.  That encounter escalated and the police officer shot and killed the driver. 

    The issue before the court was whether the footage in both cases could be classified as a “Confidential Law Enforcement Investigatory Record.”  If so, the police and prosecutors would have no obligation to provide a copy of the footage to the public or the press.  

    In a 2001 case called State ex rel Beacon Journal v. Maurer, the Ohio Supreme Court decided that an initial incident report detailing the initial interaction between the police and public related to some occurrence is not an investigatory record.  The Court ordered the report – which contained detailed written narratives provided by four different police officers -- produced upon request, without redaction. 

    Another way of phrasing the question before the court was whether the Maurer decision would apply to the footage in the two cases.  To the extent the reports set forth the events from that interaction, they are no different from the footage.  One reflects the observations of police on the scene; the other reflects the observations captured by a camera. 

    But to the extent the question is phrased in that fashion, a related question is: what is the meaning of Maurer?  And why did the court find that the record of the initial interaction between the police and the public be available for immediate and unedited public consumption? 

    The answer is that the manner in which the police conduct the initial interaction with the public speaks volumes about the police’s relationship with the citizenry and dictates the level of respect citizens will have for the police.  Are police courteous and professional in their dealings with the public or dismissive and confrontational? Do police mete out equal treatment in those encounters?  Are certain citizens afforded better treatment?  Do police use excessive force or take unnecessary risks in their interactions with the public?  Footage of those interactions will answer all of those questions.

    And those initial interactions – even the ones at issue in the cases before the court – are not inherently criminal investigations.  A car proceeding down the street with a missing license plate could be doing so for any number of reasons – but that fact alone does not make the driver a criminal. And so the initial stop – which occurs to initially determine the existing facts – did the plate fall off in route; is it in the car; is there some honest mistake – does not constitute a criminal investigation.

    If in the course of the initial interaction the facts suggest a further investigation is needed, then those subsequent steps may fall under CLEIR, but the initial interaction and any record of it does not. 

    That makes perfect sense.  Because if the entire interaction is “investigatory” the footage may never see the light of day.  And it doesn’t take an extraordinary imagination to think of the potential mischief that could result from this scenario.  Imagine an Ohio town that is less than friendly to outsiders, especially outsiders with dark skin.  Now imagine the police in that town routinely pull drivers of color over and hassle them.  The message is clear: “you’re not welcome here.”  Of course, if the police prepare incident reports of these interactions, there would be no mention of hassling, and no indication of the driver’s race.  All we’d see is a sanitized account in scrubbed language.  But if the police in those encounters were wearing body cameras, we’d see what the drivers looked like.  We’d hear the officer’s tone.  We’d observe body language. And as a result, a much more accurate picture would emerge. 

    But that accurate picture wouldn’t necessarily emerge if the footage were deemed “investigatory.”  The police could hold it as long as they felt like it.  In the example I mentioned above, the driver would be an “uncharged suspect” and that would allow the footage (and all the footage like it) to be withheld forever.   Which begs the question, how would the press and the public discover and expose the wrongdoing?

    And the concern is hardly hypothetical.  We saw last year in Chicago the extreme lengths to which the city and its mayor went to withhold the footage of the Laquan McDonald shooting.  The footage conveniently remained under wraps until after the mayoral election.  Few people consider that a coincidence.  And it illustrates how the “investigatory record” exception can be misused to hide truth.

    When I argued the cases this week, a camera recorded the argument and live streamed it to the World Wide Web.  That footage is available in the Ohio Supreme Court’s Web site for anyone to see.  And I have no problem with that.  I am proud of the work I do and happy to represent my clients to the best of my ability.  The world is welcome to watch.  And I suspect 99.9% of police – the ones who do their job professionally and courteously – feel the same way about video capturing their performance.  The rank and file police – who are unburdened by political ambition – aren’t the ones working to shut out the public.  That effort comes from a higher pay grade.

    Disclosure leads to closure.  Non-disclosure leads to chaos.  In the cities where riots followed police involved deaths – Ferguson and Baltimore – there was no video of the precipitating incident.  In the cities where police involved deaths did not lead to riots – Cleveland, New York and North Charleston, South Carolina – the public was able to see the video of the event.  Neither of those examples is a coincidence. 

    The Ohio Supreme Court got it right in 2001 with the Maurer decision.  The Court has a chance now to reiterate the point – the record of the initial interaction between the police and the public is not an investigation.  And that includes the video record. 
    Go comment!
  • Text Message May Mean Big Score For Plaintiff

    Jun 09, 2016

    Elaine Bonin recently filed a class action suit in federal court in Wisconsin alleging that CBS Radio violated the Telephone Consumer Privacy Act by sending her text messages with game scores.  She claims she and a class of similarly situated plaintiffs never consented to the messages.  Give that the TCPA provides for statutory damages of up to $1500 per violation, and given her contention that the entire class is entitled to that relief, the score here could be, to borrow a phrase from a presidential candidate “huge.”

     According to the complaint, the TCPA "generally prohibits autodialed calls to wireless phones," but "provides an exception for autodialed and prerecorded message calls...made with the prior express consent of the called party."  The complaint further notes that “on February 15, 2012, the FCC released a Declaratory Ruling wherein it clarified that a party must obtain prior express written consent from the recipient prior to making automated telemarketing calls to the recipient’s cellular telephone.”

     Ms. Bonin purchased a prepaid wireless phone earlier this year.  The prepaid phone came with a set allotment of minutes for calls and text messages.  Shortly after she got the phone, she received a test message from a number belonging to Chicago radio station 670 “The Score.”  That message contained the score of the Bears Lions football game. Apparently the station sent her several additional messages.  In her complaint, Ms. Bonin states in no uncertain terms:  “[a]t no time did Bonin provide her prior express written consent, or any other form of consent, to CBS or 670 The Score, or to any of its affiliates, agents or subsidiaries, to receive any text messages, prerecorded, or automated calls/texts to her TracFone cellular telephone.”

     In her complaint, Ms. Bonin notes that each text message use up .03 minutes of her allotment.  That may sound miniscule, but it could be a critical piece of the case.  In any civil action, and in any class action, the court has to consider the question of “standing.”  And a plaintiff must establish that he or she suffered some actual “injury in fact” to have “standing” to bring a lawsuit.  A plaintiff who can only establish statutory damages may not have standing.  Just because the TCPA provides for a statutory remedy, that does not mean the plaintiff suffered any injury.  That is what makes those .03 minutes so important.

     The complaint is saying that The Score effectively took from Ms. Bonin phone time she paid for.  The .03 used by each unauthorized text is .03 minutes she can’t use.  Perhaps in the scheme of things, not the most onerous injury, but an injury nonetheless.  And those .03 minutes may turn out to be a big headache for CBS.

    Go comment!
  • Donald Trump Meets Intellectual Property

    Jun 06, 2016

    Donald Trump last week cemented his position as the most bigoted presidential candidate since George Wallace.  And it was perhaps because of that issue that Mr. Trump decided to demonstrate on social media how much he is loved by minorities.  For that reason, Mr. Trump retweeted a post that featured a photograph of an African-American family with a caption saying “American Families for Trump.” 

     There are a couple of problems with the tweet.  First, the family does not support Trump.  And second, the person who tweeted the doctored photo (and by extension the person who retweeted the photo) had no permission to use the photo.  Which means the tweet violated the copyright of the photographer and the right of publicity for the family.   

    Now we know Trump has very little regard for the truth.  And civility.  And common courtesy.  But he also has similar disdain for laws protecting intellectual property.  And his blatant disregard for the tells us much about him, but it also illustrates why those laws matter.   

    It is fair to assume that someone who saw this particular tweet may think “maybe Trump isn’t as bad as everyone says.  A handsome African-American family is his corner, so maybe he’s not so bad.”  And at least as to this family, that statement would be incorrect.  The right of publicity allows people to control the use of their image.  There are at least three reasons for this.  First, if an advertiser wants to use someone’s photo in an ad, that person is entitled to compensation.  I assume even Trump would agree with this basic concept.   

    Second, the person whose photo is going to be used should have a right to say no – separate and apart from the money.  If someone offered me $1 million to use my photo for an “I Love The St. Louis Cardinals” ad campaign I’d say no. I suspect the family in the photo would feel the same way about using their photo for a Trump ad.  They should be given that right.   

    Finally, the public has the right to rely on information presented to them.  And a blatantly false Twitter retweet violates the public interest.  Laws protecting  Intellectual Property rights protect against all of the above.   

    Had Trump reached out to the family of the photographer before retweeting the bogus photo he may have discovered the truth.  But doing so would have required civility and common courtesy.  As we’ve noted, those are not high priority items for Trump or his campaign. 
    Go comment!
Connect on Facebook

Get Linkedin with Jack

Follow Me

Federal Trade Commission
Rebecca Tushnet's 43 (B)log
Pittsburgh Trademark Lawyer

Do You Know Jack?

(what's the point of a blog without them)
We'd love to hear what you're thinking. Although we can't guarantee that we'll post every question or comment on our site, please note that when you submit a question or comment we assume we've got your consent to post it on our site. To add a comment on any post, just click on "go comment" immediately below that post.

(you had to see this coming):
This blog is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have. Many states, including Kentucky, require that law firms add the statement "THIS IS AN ADVERTISEMENT" on publications of this nature.

Copyright © 2016 Graydon Head & Ritchey LLP. All Rights Reserved.