united-states copyright defamation
Can you post a picture in your business to embarrass or defame a customer?
<p>I paid a debt to the late husband of a woman who now owns the local hardware store. Without talking to me about the debt, she posted my photograph of me that she copied off my Facebook account. She put my name and that I owed a large amount of money and had not paid.  The debt was paid to her late husband, there was never a signed contract or receipt: we made the deal with a handshake and settled the deal the same way with no paperwork.</p>
<p>Is it legal for her to post my photograph in her place of buisness defaming me?</p>

<p>That post is probably illegal.</p>
<p>Because she is making false assertions about you (that are presumably damaging your reputation), she is likely liable for defamation.</p>
<p>Because she has copied a picture of you without authorization, she is likely liable for violating the copyright of whomever owns that picture. Commenters have suggested she might invoke a fair-use defense, but I would expect it to fail. The four fair-use factors are:</p>
<ol>
<li><p><strong>The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes:</strong> Both Plaintiff and Defendant are using using the photograph to identify the holder of an account -- a Facebook account in P's case, a business account in D's. D is using the photograph in connection with a profit-making enterprise, not for educational purposes, and her use is not transformative.</p>
</li>
<li><p><strong>The nature of the copyrighted work:</strong> Photography is a creative art at the core of copyright's purposes, generally entitled to thick protection. <a href="https://casetext.com/case/ets-hokin-v-skyy-spirits-inc-2" rel="nofollow noreferrer"><em>Ets-Hokin v. Skyy Spirits, Inc.</em>, 225 F.3d 1068, 1074 (9th Cir. 2000)</a> (&quot;[P]hotography entails creative expression warranting copyright protection.&quot;)</p>
</li>
<li><p><strong>The amount and substantiality of the portion used in relation to the copyrighted work as a whole:</strong> There is no indication that D took anything less than the entire photograph.</p>
</li>
<li><p><strong>The effect of the use upon the potential market for or value of the copyrighted work:</strong> The question is not only whether the defendant's use affected the actual market for the protected work, but whether many people doing the same thing would depress the <em>potential</em> market for the work. <a href="https://casetext.com/case/campbell-v-acuff-rose-music-inc" rel="nofollow noreferrer"><em>Campbell v. Acuff-Rose Music, Inc.</em>, 510 U.S. 569, 590 (1994)</a> (Courts must consider &quot;whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market.&quot;) The potential market for the image is probably very small, but widespread unauthorized copies, publicly displayed, would undoubtedly depress whatever market exists.</p>
</li>
</ol>
<p>So all four factors cut against the defendant. Fair use is a loser defense here.</p>

<h2>Defamation</h2>
<p>To falsely state that you owe a debt when you have paid it is defamatory. However, to sue for defamation in the US (and most other places) one must <strong>establish</strong> that the statements are false. The question says that:</p>
<blockquote>
<p>The debt was paid to her late husband, there was never a signed contract or receipt: we made the deal with a handshake and settled the deal the same way with no paperwork.</p>
</blockquote>
<p>That would make the falsity of the statement that the debt is still owed quite hard to prove. Unless there was a witness or some other proof it would depend on your word alone, and a jury might not accept that.</p>
<p>You would almost certainly need a lawyer to file and pursue a defamation suit. Some lawyers specialize in such cases. Such a lawyer could advise on the specifics of such a case, and whether it would be worth the costs and fees which would need to be paid to pursue such a suit. One generally needs to prove that one's reputation has suffered actual harm to collect significant damages, as well as proving falsity.</p>
<h3>Proof of Falsity</h3>
<p>In <a href="https://scholarship.law.wm.edu/wmlr/vol25/iss5/6" rel="nofollow noreferrer"><em>The Plaintiff's Burden in Defamation: Awareness and Falsity</em></a> by Marc A. Franklin and Daniel J. Bussel (<em>William &amp; Mary Law Review</em> Vol 25 Issue 5,  June 1984 it is said that:</p>
<blockquote>
<p>... the plaintiff must establish the existence of a disprovable
defamatory statement and must prove the falsity of that
statement with convincing clarity. (* p. 835*)</p>
</blockquote>
<blockquote>
<p>Now, a wide range of statements that cannot be proved either true or false necessarily are absolutely protected. (<em>p. 855</em>)</p>
</blockquote>
<blockquote>
<p>In <em>Wilson v. Scripps-Howard Broadcasting Co.</em> 642 F.2d 371 (6th Cir.), <em>cert. dismissed</em>, 454 U.S. 1130 (1981).. the United States Court of Appeals for the Sixth Circuit concluded that certain constitutional principles announced by the Supreme Court required that the burden of proof be placed on the plaintiff.  (<em>p. 857</em> This was a private plaintiff case)</p>
</blockquote>
<blockquote>
<p>Although constitutional principles appear to require this shift in the burden of proof, reason and justice also dictate that the plaintiff should bear the risk of nonpersuasion on the central issue of the statement's truth or falsity. (<em>p. 859</em>)</p>
</blockquote>
<blockquote>
<p>although the defendant may contend in his motion for summary judgment that he has shown the truth of the statement conclusively, the defendant actually is arguing that he has shown conclusively that the plaintiff cannot establish the required element of falsity. See, e.g., <em>Meiners v. Moriarity</em>, 563 F.2d 343 (7th
Cir. 1977). The defendant may have seized the initiative on the issue in order to avoid the trial, but this tactic does not affect the underlying conclusion that the risk of nonpersuasion is on the plaintiff. (<em>p. 859</em>)</p>
</blockquote>
<blockquote>
<p>Trial lawyers often have complained about
the unfairness of having to demonstrate that a derogatory statement is untrue.134 Recognizing the difficulty of proving a negative, Roman law placed the burden of proof on the party who could prove the affirmative. What Roman law and current trial lawyers fail to recognize, however, is that not all negatives are difficult to prove. A detailed defamatory statement should be readily discreditable. In <em>Gertz</em> (418 U.S. at 326.), for example, the plaintiff was able to establish that he was not a &quot;member of the 'Marxist League for Industrial Democracy. Modern discovery practices have also obviated much of the earlier concern about proving a negative. Furthermore, courts long have required plaintiffs to prove negatives in many other areas of the law</p>
</blockquote>
<p>In short, when the plaintiff fails to prove that the allegedly defamatory statement is actually false, even though the defendant is unable to prove it true, the defendant will prevail, and no damages will be awarded.</p>
<h2>Copyright</h2>
<p>Now, as to the issue of the photograph. The image would be protected by copyright. If you took the photo, you would own the copyright. If some other person took the photo, that person would own the copyright unless they transferred the rights to you in writing.</p>
<p>Only the copyright owner or someone authorized by the owner can file a copyright lawsuit. In the US, the copyright must be registered before suit can be filed. There is a fee for registration.</p>
<h3>Fair Use</h3>
<p>The person sued might assert <em>fair use</em> of the image as a defense. this is always fact-based, there is no way to say for sure if a use is a fair use until a court makes a decision, but one can review the four fair-use factors in a given case.</p>
<p>The law on fair use is found in <a href="https://www.copyright.gov/title17/92chap1.html#107" rel="nofollow noreferrer">17 USC 107</a> The four factors listed in the law are:</p>
<blockquote>
<p>(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;</p>
<p>(2) the nature of the copyrighted work;</p>
<p>(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and</p>
<p>(4) the effect of the use upon the potential market for or value of the copyrighted work.</p>
</blockquote>
<p>On the first factor, the use is neither commercial nor educational. It is not transformative. This probably leans slightly against fair use.</p>
<p>On the second factor, the image is not a news report or factual work like a textbook, but neither is it highly creative like a work of fiction or a work of fine art. This is probably neutral with regard to fair use.</p>
<p>On the third factor, presumably the whole image or a large part of it is being used. This would lean against fair use.</p>
<p>On the fourth factor, there probably is no significant market for the original image, so no harm is being done to the market. And if there were any market, the sort of posting described in the question would not harm it. This factor would lean in favor of fair use.</p>
<p>With some factors leaning each way, it is very hard to predict what a court would do with a fair use claim</p>
<h3>Copyright Damages</h3>
<p><a href="https://www.copyright.gov/title17/92chap5.html#504" rel="nofollow noreferrer">17 USC 504</a> provides for damages in the case of a successful suit for copyright infringement. There are two main categories of damages:</p>
<ol>
<li>&quot;actual damages and any additional profits of the infringer&quot;. If the photo was not being sold or otherwise earning money for the copyright owner, and the infringer was not making any money either, there would be no significant damages under this provision.</li>
<li>&quot;statutory damages&quot;. These can be as low as $200, or as high as $150,000. But under <a href="https://www.copyright.gov/title17/92chap4.html#412" rel="nofollow noreferrer">17 USC 412</a> statutory damages for a published work are not available at all unless the work was registered before the infringement took place, or within three months after the work was fist published. Posting an image to social media would constitute publication.</li>
</ol>
<h3>DMCA Takedown</h3>
<p>One could also send a DMCA takedown notice under <a href="https://www.copyright.gov/title17/92chap5.html#512" rel="nofollow noreferrer">17 USC 512</a> to the web site displaying the image. This might work. Only the copyright holder or the holder's authorized agent can do this. If the image is physically posted in the store, this is not possible.</p>
<h2>Cease and Desist Letter</h2>
<p>One could send the person displaying the image and false information a cease and desist letter. This is, in effect, a threat to sue. It may cause the desired action, but it has not legal force if not followed up by an actual lawsuit.</p>
<h2>Conclusion</h2>
<p>None of the options for responding to the situation described in the question is guaranteed to work. All of them, except a takedown notice, would require upfront costs to be paid, and would as a practical matter demand that a lawyer with experience in the area be consulted.</p>

<p>Assuming it's a picture you took <em>(eg: a selfie)</em>, your picture is protected by Copyright, and that means nobody can make copies of it, or publicly display it without your permission <em>(eg: a license)</em>. By uploading it to Facebook you have licensed it to Facebook which, allows them <em>(among other things)</em> to display it to other users. But, as far as I'm aware, neither you, nor Facebook extends this, or any other license to other Facebook users. By making a copy of your picture she has violated section 106 (1) of Title 17 <em>(aka Copyright Law of the United States)</em>. By publicly displaying it she has violated section 106 (5) of Title 17. By adding your name, and a false statement she may be violating section 106A (2) of Title 17.</p>
<p>The Facebook terms of Service prohibit Facebook users from doing anything which &quot;infringes or violates someone else's rights, including their intellectual property rights&quot;. By infringing on your Copyright she has violated Facebook's terms of service.</p>
<p>Refs:</p>
<ul>
<li><a href="https://www.facebook.com/terms.php" rel="nofollow noreferrer">https://www.facebook.com/terms.php</a></li>
<li><a href="https://www.copyright.gov/title17/92chap1.html#102" rel="nofollow noreferrer">https://www.copyright.gov/title17/92chap1.html#102</a></li>
<li><a href="https://www.copyright.gov/title17/92chap1.html#106" rel="nofollow noreferrer">https://www.copyright.gov/title17/92chap1.html#106</a></li>
</ul>
