This case is another example of the confusion entailed by having two competing and unreconciled definitions of “commercial” speech, one of which sets the boundaries between First Amendment doctrines (full protection v. more limited Central Hudson protection for truthful, nondeceptive commercial speech and no protection for false or misleading commercial speech) and the other of which sets the boundaries of some IP right, whether it's trademark, the right of publicity, or fair use in copyright. Since these all implicate the First Amendment, this doesn’t actually work, but that hasn’t stopped courts from pretending that “noncommercial” means only one thing. This is equivocation pure and simple. If a court would step up and say, “It’s true that this is noncommercial speech for Central Hudson purposes, but the right of publicity satisfies Central Hudson’s substantial government interest and tailoring prongs,” then at least we could have a discussion that made sense.
The facts alleged in the complaint: Sadly, Peckham was injured in a car accident when a driver under the influence collided with him. The defendant newspaper’s photographer snapped a picture of him trying to wave to his family to indicate that he was still alive, which was later published along with an article about the accident. Peckham’s complaint didn’t challenge the use of the photo in the hard copy or online edition of the newspaper. Though at oral argument his lawyer suggested that it was also wrong to sell the photo as a standalone item from the paper’s news archives, the complaint only alleged a violation of his privacy rights from putting the photo onto various items of merchandise available for purchase. (This seems to have been a CafePress type operation, where they only make the items once you pick the photo, and where the paper has a contract with a third party to make the items available; the complaint lacked details about the fee arrangement involved.) The court expressed “serious doubts” that there was any viability to a claim against the use of the photo in the photo archive, but addressed only the paper’s newsworthiness defense as applied to the merchandise challenged in the complaint—T-shirts, mugs, and mouse pads.
The newspaper argued that newsworthiness was a complete defense since the accident was a matter of legitimate public concern. When the court says that the newspaper argued this “even in the context of commercial product sales,” you can tell what’s going to happen.
Massachusetts has a statutory right to privacy as well as a misappropriation/right of publicity providing a cause of action for “any person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent.” The complaint could fairly be read to raise both kinds of claims.
Newsworthiness has to draw a line between information in which the public is legitimately interested and “morbid and sensational prying into private lives for its own sake.” It’s not entirely clear whether newsworthiness is a question of law or fact, but judges must serve as gatekeepers: before letting the question go to a jury, a judge has to decide whether “reasonable minds could differ as to how the community would regard the publication at issue.” That means the judge must decide whether reasonable minds could disagree “as to (1) whether the subject matter at issue is properly considered a matter of legitimate public concern and (2) whether there is a substantial nexus between the publication and the alleged issue of concern.” Using this standard, the court refused to dismiss the complaint.
First, there weren’t enough relevant facts pleaded. Discovery might yield more facts than Peckham’s allegations that the newspaper made commercial reproductions of the photo on T-shirts, mugs, and mouse pads and that this violated his privacy, causing him damages. The court wasn’t going to speculate. (Compare a more aggressive Iqbal/Twombly approach (though the paper declined to challenge the sufficiency of the complaint at this stage): what facts are missing? This also perhaps goes to the question of whether newsworthiness is a factual judgment in the ordinary meaning of that term or is instead in a real sense a moral one.) The court emphasized that Massachusetts courts usually determine newsworthiness after discovery.
Also, newsworthiness is hard to define, which makes a factual record even more important. Though accidents are traditionally “news,” newsworthiness doesn’t extend beyond “information to which the public is entitled.”
“Suffice it to say, the newsworthy defense may well be unavailable to corporations seeking to protect commercial enterprises wholly unrelated to the publication of news.” The court thought that “[t]his may, in fact, be the line drawn by the drafters” of the misappropriation statute. It then cited Tropeano v. The Atlantic Monthly Co., 400 N.E.2d 847 (Mass. 1980), which held that a newspaper wasn’t liable for misappropriation for publishing a photo in connection with a news article because the photo “was published in connection with what is apparently a sociological commentary, and not as a means of soliciting sales or in association with an advertisement of any kind” and the “article or story involved . . . is a legitimate noncommercial use.” Thus, the court here concluded, “[t]his commercial/noncommercial dichotomy may well be the appropriate line to draw regarding privacy and the newsworthy exception.”
Okay, we started with “noncommercial means not an ad,” which happens to be the First Amendment standard. A newspaper story was thus noncommercial because it wasn’t an ad, regardless of the profit-seeking motives of the newspaper publishers, who rarely work for no recompense. Then we segued seamlessly into “commercial means sold for money,” even though the court just quoted a decision distinguishing ads from other content in the paper.
The court declined to grant the motion to dismiss because “reasonable minds may disagree as to whether the sale of an accident photograph, unaccompanied by any information regarding the accident, sold exclusively for commercial purposes disconnected to the dissemination of news, following the prior publication of the photograph alongside an undisputedly legitimate news article, crosses the line from the mere ‘giving of information’ to a ‘sensational prying into private lives for its own sake.’”
This sentence offers another distinction, but I think it’s a bad one: the intuition is that the picture detached from the story isn’t newsworthy any more. This should imply, at least, that a mug with a caption from the story would be fully protected, just as a webpage with the picture and a caption would be. (Indeed, it’s usually possible online to display just the picture separately by right-clicking on “view image,” but that shouldn’t change any result.) There are cases where misleadingly mismatched pictures—e.g., a picture of an unrelated person used to illustrate a story about the misdeeds of other people—have been held not newsworthy, but if the content of the picture is newsworthy in itself, then it should stay newsworthy with or without a caption. There are plenty of communications that don’t give a full context for the information they convey. Is there something special about pictures that requires them to have words added to be newsworthy? I don’t think so. (If you think the picture needs a caption to be newsworthy, who will decide whether the caption is good enough? What if it only has the location, or the photographer's name, or the newspaper's name? What if it only has the name of the person in the accident? What if it only has the name of the person who caused the accident? Who will decide whether the caption is prominent enough to be noticed?)