united-states privacy first-amendment ohio right-of-publicity
Do the Ohio sheriffs suing Afroman have any legal standing in their claim of &quot;invasion of privacy and misappropriation of their likenesses&quot; lawsuit?
<p>From <a href="https://hiphopdx.com/news/afroman-sued-ohio-sheriffs-home-raid" rel="noreferrer">this article “Afroman Sued by Sheriffs for Allegedly Profiting from Raid on his Home</a>.</p>
<blockquote>
<p>Afroman is reportedly being sued by a number of Ohio sheriff deputies for allegedly profiting off the raid they conducted on his home last summer.</p>
<p>The Adams County Sheriff’s Department ran up on Afroman’s home last August, where officers searched for illegal narcotics but failed to find anything.</p>
<p>Afroman filmed the entire raid via his security cameras, and in the months since the raid has compiled the footage together to turn it into a music video called “Will You Help Me Repair My Door.” This has reportedly upset the Ohio sheriff’s deputies involved in the raid as they believe Afroman to be profiting off their hard work.</p>
<p>In turn, the police are suing for invasion of privacy and misappropriation of their likenesses, and are claiming the music video has caused them emotional distress, ridicule, humiliation, loss of reputation and embarrassment.</p>
<p>“My house is my property, my video camera films, everything on my property as they begin, stealing my money, disconnecting plus destroying my video camera system, they became my property,” Afroman said. “Criminals caught in the act, of vandalizing and stealing money. My video footage is my property. I used it to identify the criminals who broke into my house, and stole my money. I used it to identify criminals, who broke into my house, stole my money and disconnected my home security system.”</p>
</blockquote>
<p>Do the Ohio sheriffs suing Afroman have any legal standing in their claim &quot;invasion of privacy and misappropriation of their likenesses&quot; lawsuit?</p>

<h2>The deputies have standing, but they're probably going to lose.</h2>
<p>&quot;Standing&quot; is just a legal principle that limits the legal process to people who have suffered certain types of injuries. Jen's answer offers a good explanation of why the answer is yes, they do have standing.</p>
<p>But I assume you're less interested in whether the officers are capable of bringing the case than in whether their case is likely to succeed.</p>
<p>The answer to that is no.</p>
<p><strong>Claim 1</strong> alleges a violation of Ohio's right-of-publicity statute. But that statute includes a carveout for any &quot;use of the persona of an individual that is protected by the First Amendment to the United States Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.&quot; <a href="https://codes.ohio.gov/ohio-revised-code/section-2741.09" rel="noreferrer">Ohio Rev. Code 2741.09</a> .</p>
<p>So the officers lose if Afroman's videos are protected by the First Amendment. And they almost certainly are, as the assumption is that <a href="https://law.stackexchange.com/questions/56001/in-the-usa-can-treason-be-protected-by-the-first-amendment/56002#56002">all speech is protected unless it falls into one of several very narrow categories</a> -- incitement, defamation, fighting words, etc. -- that are pretty clearly not applicable here.</p>
<p><strong>Claim 2</strong> alleges misappropriation of persona. This claim strikes me as the strongest, but probably still pretty weak. To win this claim, the deputies must prove:</p>
<ol>
<li>that Afroman appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of their name or likeness;</li>
<li>that their names or likenesses have some intrinsic value; and</li>
<li>that that value was taken by defendant for its own benefit, commercial or otherwise.</li>
</ol>
<p><a href="https://casetext.com/case/jackson-v-playboy-enterprises-inc" rel="noreferrer"><em>Jackson v. Playboy Enters.</em>, Inc., 574 F. Supp. 10, 13 (S.D. Ohio 1983)</a>. <em>See also</em> <a href="https://casetext.com/case/zacchini-v-broadcasting-company" rel="noreferrer"><em>Zacchini v. Scripps-Howard Broad. Co.</em>, 433 U.S. 562, 576 (1977)</a> (&quot;No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.&quot;).</p>
<p>It seems like it will be difficult to argue that the deputies' names or likenesses have any intrinsic value on which to premise damages. If the idea of this tort is to give the plaintiff the benefit of the commercial value of the misapporpriation, the court must evaluate whether there's any commercial value to the use of the deputies' names or images. Are these deputies moonlighting as models? Would they have licensed the use of their likenesses if Afroman had so requested? It seems unlikely. Instead, the value of using them in these contexts arises only from their connection with a newsworthy event on which Afroman wishes to comment. That seems to move us out of privacy territory and into protected speech territory, which means Claim 2 should fail.</p>
<p><strong>Claim 3</strong> alleges false-light invasion of privacy. To win this claim, the deputies must prove:</p>
<ol>
<li>that Afroman gives publicity to a matter concerning them;</li>
<li>that the publicity placed the deputies before the public in a false light;</li>
<li>that the false light in which the other was placed would be highly offensive to a reasonable person; and</li>
<li>that Afroman acted with actual malice.</li>
</ol>
<p><a href="https://casetext.com/case/welling-v-weinfeld-2005-1964-6-6-2007" rel="noreferrer"><em>Welling v. Weinfeld</em>, 113 Ohio St. 3d 464, 473 (2007)</a>.</p>
<p>The complaint does not identify any statements Afroman made that were false or that placed the deputies in a false light before the public. The only things I can see as possibly &quot;false&quot; are the hyperbolic statements mocking the police officers, such as those suggesting that a female deputy is actually a man because her voice was &quot;three octaves lower&quot; than his, or his suggestions that the police are members of the KKK.</p>
<p>Without something more substantial that reasonable people would have been likely to truly believe was true, this claim is likely to fail also, as hyperbole and opinion are generally protected under the First Amendment. <a href="https://casetext.com/case/vail-v-the-plain-dealer-publishing-co" rel="noreferrer"><em>Vail v. the Plain Dealer Publishing Co.</em>, 72 Ohio St. 3d 279, 283 (Ohio 1995)</a> (“The ordinary reader would accept this column as opinion and not as fact. Therefore, the statements are protected.”).</p>
<p><strong>Claim 4</strong> alleges unreasonable publicity given to private lives. To win this claim, the deputies must prove:</p>
<blockquote>
<ol>
<li>there is publicity;</li>
<li>the facts disclosed concern an individual's private life;</li>
<li>the matter publicized was one that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities;</li>
<li>the publication was made intentionally, rather than negligently; and</li>
<li>the matter publicized was of no legitimate concern to the public.</li>
</ol>
</blockquote>
<p><a href="https://casetext.com/case/cox-v-hausmann-1" rel="noreferrer"><em>Cox v. Hausmann</em>, No. 3:17-cv-02420, 2020 U.S. Dist. LEXIS 181458, at *33 (N.D. Ohio Sep. 30, 2020)</a>.</p>
<p>From my review of the complaint and some of Afroman's media, it doesn't look like Afroman has publicized any facts that are subject to a legitimate claim of privacy. Instead, Afroman has published video of government officials, engaged in the work of government, and commented on those videos. Those are matters about the deputies' public lives, not private, and the conduct of police is of legitimate concern to the public. Claim 4 should therefore also fail.</p>
<p>It seems more likely that this case was brought to intimidate Afroman or to create some kind of leverage in the civil-rights claim Afroman will probably be bringing based on potential violations of his Fourth Amendment rights. If this is correct, the deputies will be lucky to have the case simply dismissed. Sanctions and an abuse-of-process counterclaim are more likely.</p>

<p>Digital Fire in the comments to the question is wrong in believing that:</p>
<blockquote>
<p>My layman's interpretation of [standing] would be; Do you cops have
a real case here or are they just mad they got embarrassed and seeking
some type of legal retribution that has no chance?</p>
</blockquote>
<p>Standing is a much narrower inquiry. It involves #1 if the thing that the complaint alleges was harmed was an injury legally recognized right, and if #1 is true, #2 figuring out if the person bringing the lawsuit was the person to whom legally recognized right actually belonged (or if the person bringing the lawsuit may properly vindicate harm to a legally recognized right because that person has a legally recognized relationship to the person to whom it belonged, like the next of kin of a dead person or a guardian of a minor).</p>
<p>For example, if you allege that someone breached a contract with you, you have a legally recognized right to enforce that contract right, and you are a party to the contract so you are the right person to enforce that right. But, your neighbor doesn't have standing to sue alleging that someone breach a contract with you in most cases (unless the neighbor is an intended third-party beneficiary of the contract). You have standing to sue, however, even if, actually, the contract wasn't breached because you were mistaken about the facts or your interpretation of the contract is incorrect.</p>
<p>Similarly, you can't sue someone for destroying my car unless you have some relationship with me that allows you to assert rights in my shoes (e.g. if you are an insurance company that paid my claim in exchange for the right to take over might right to sue the person who caused the damage, which is called a subrogation right). You have standing to sue even if it turns out that the person you are suing isn't at fault because the damage was actually caused by a meteor falling from the sky and not by the person you are suing actively trying to crush your car. You don't lack standing just because the argument you are making doesn't win.</p>
<p>Jen is correct in <a href="https://law.stackexchange.com/a/90807/9517">her answer</a> that they have standing on the claims that they are pursuing, i<em>f they are valid claims on the merits as pleaded</em>. But if there are flaws in the theories asserted, those flaws could give rise to genuine standing to sue concerns.</p>
<p>But, the question you asked doesn't seem to be the one you meant to ask, which is really whether they have stated a claim upon which they are entitled to legal relief if the facts are as they allege. The <a href="https://law.stackexchange.com/a/90811/9517">answer from bdb484</a> identifies some good arguments that these claims should not prevail on the merits. The right of publicity claim seems to fail on the face of the statute. The other three common law claims are also weak on their face even without considering standing to sue.</p>
<p>Still, there are also at least a couple of standing-like arguments to make over whether there was really a concrete, cognizable injury to the plaintiff applying Ohio's standing law to these facts.</p>
<p><strong>Who Suffers The Misappropriation Of Likeness Injury (If Any)?</strong></p>
<p>One argument that they genuinely do not have standing to pursue misappropriation of their likenesses claims is that when a public official is carrying out his or her official duties, his image and likeness when doing so, like written work product and other creative works he makes in that capacity, are really basically &quot;work for hire&quot; and that any right to economic gain from appropriation of their likeness belongs to their employer, the government entity, and not them. Getting photographed is part of the job so the economic return on anything that is part of the job belongs to the employer.</p>
<p>The misappropriation of likeness claims was originally developed when businesses used images of models in advertisements without compensating or entering into a contract to compensate the models. But if someone is paying you to do things that may involved being photographed or videotaped in public as part of your job, this starts to sound like a case where a model tries to sue for misappropriation of likeness despite being paid pursuant to a contract to model.</p>
<p>Maybe their employer has a misappropriation of likeness claim, but under this theory, the individual officers do not. Also, maybe even if any misappropriation of likeness claim is available for employers in general, maybe a government employer is not allowed to seek compensation from citizens engaging in constitutionally protected, otherwise lawful activity.</p>
<p>An alternative and related non-standing argument is that the misappropriation of likeness claim should not be allowed for public employees as a matter of state law public policy concerns, because it amounts to a claim seeking to be paid by a private party for doing your public job with compensation in addition to what the government is paying you, which looks like some form of graft or corruption or double recovery for your labor. This is particularly true if the employer has a policy of not permitting moonlighting or at least not permitting moonlighting during hours you are billing the employer for your work.</p>
<p><strong>Is There An Injury To A Cognizable Privacy Interest To Invade?</strong></p>
<p>There can only be standing to pursue an injury to your privacy interests if there is a cognizable concrete interest in privacy that belongs to the officers to protect.</p>
<p>In this context, that is a hard argument to make, and the state tort law also needs to be interpreted in resolving that question in a manner consistent with the U.S. Constitution.</p>
<p>There is a well-established constitutional right to film law enforcement officers acting under color of law. This right is critical to documenting violations of civil rights by those officers. The real strategic purpose of the officers in this lawsuit is not to make an extra buck from a TV appearance, but to find a back door way to discourage people from exercising their constitutional right to film police officers so it is harder to sue them for violating the rights of public citizens.</p>
<p>One way to resolve the potential conflict between the constitution and state tort law with respect to the invasion of privacy tort is to argue that a government employee in the course of official duties does not have any reasonable expectation of privacy while carrying out official duties in the plain view of members of the public.</p>
<p>If there is no legally cognizable privacy interest to injure in that context, then there may be no cognizable injury that can be harmed, and therefore there is no standing to sue, because there is no privacy right to injure.</p>
<p>One could also make a similar non-standing legal argument on the merits that a public policy exception or simple supremacy clause analysis should cause a state law tort to yield to a federal constitutional right. In the same way, there are certain kinds of defamation lawsuits that states are not allowed to permit because the First Amendment limits the scope of state tort law.</p>
<p><strong>Why Care?</strong></p>
<p><em>In General</em></p>
<p>There are good reasons to care about whether the problem, if any, with these lawsuits is a question of standing or simply a failure to state a valid legal claim on other grounds.</p>
<p>Standing is a question of a court's subject-matter jurisdiction. And, questions of subject-matter jurisdiction can be considered at any stage of the litigation, even if not preserved as a legal issue in the trial court or any other lower court.</p>
<p>Indeed, subject-matter jurisdiction is one of the few issues which courts are not only allowed but required to raise <em>sua sponte</em> (i.e. on its own without prompting) even if none of the parties in the case argue that subject-matter jurisdiction (including standing) is not present.</p>
<p>Subject-matter jurisdiction defects like standing cannot be waived. They can also be used to set aside court judgments or orders long after they are entered, when the deadline to raise other kinds of problems with a court judgment or order has long since expired. There is never a statute of limitations on contesting a judgment or order for lack of subject-matter jurisdiction on the part of the court that entered it (although if the issue has been actively litigated and resolved on the merits, doctrines like res judicata or collateral estoppel may prevent relitigation of the issue).</p>
<p><em>Standing in State v. Federal Court</em></p>
<p>Also, it is important to note that while in federal court, Article III of the U.S. Constitution (which applies only to federal courts) makes standing a U.S. Constitutional requirement, Article III of the U.S. Constitution does not apply to state courts.</p>
<p>In state courts, standing may be a state constitutional, or statutory, or common law requirement for a party bringing a lawsuit.</p>
<p>But, while standing is usually a matter of subject-matter jurisdiction even in state court (often with some narrow exceptions involving the legislative or electoral process), a state can allow people who would not have standing under federal law to bring lawsuits in state courts, and a state can also require standing without making it a matter of subject-matter jurisdiction if it wishes to do so, without violating the U.S. Constitution.</p>
<p><em>Litigation Cost Considerations</em></p>
<p>Also, most standing issues (and some of the non-standing issues) can be resolved very early in the case on motion to dismiss the complaint, rather than having to wait until evidence can be considered in a motion for summary judgment or at trial following long and expensive litigation, and if it can't be resolved on a motion to dismiss can often be resolved in a motion for summary judgment or an early pre-trial hearing.</p>
<p>This can dramatically reduce the litigation costs of the case of the defendants relative to some other kinds of defenses that may be valid and could be raised but don't immediately kill the claim dead.</p>

<p>Yes, individuals do have personal standing in suits for invasion of privacy and the like.</p>
<p>Ohio generally follows the federal approach to standing law, which requires that a litigant alleges a (1) concrete (2) personal injury (3) caused by the defendant (4) which can be redressed by the court. See generally: Kristen Elia, &quot;Ohio's Standing Requirements and the Unworkable Public-Rights Exception&quot;, <a href="https://scholarship.law.uc.edu/uclr/vol86/iss3/5" rel="nofollow noreferrer">86 U. Cin. L. Rev. 1019</a> (2018)</p>
<p>A person clearly has standing to bring a tort suit on one's own behalf, alleging personal harms flowing from the defendant, requesting money damages. Suits such as this are perhaps the oldest and most well-established examples of standing.</p>
<ul>
<li>I defer to <a href="https://law.stackexchange.com/a/90811/46948">bdb484's answer</a> about the likelihood of success on the merits</li>
<li><a href="https://law.stackexchange.com/a/90830/46948">ohwilleke has written a good answer</a> raising potential standing issues in the case that the claims are founded on injuries that are just not legally possible (I find the line between standing and merits difficult to draw in cases like this)</li>
</ul>
