TV station using my midriff in obesity show promotion.

June 27, 2006 11:26 AM

A local news station in my (small) town is doing a mullti-part series on "the obesity epidemic". The teasers and the intro for this series includes pictures of rather hefty people (shot from knees to armpits only, so no face identifiable) strolling about town. One of them is me.

While they don't show my face, I was wearing my favourite pair of (admittedly somewhat garish) pants (not really parachute pants, but baggy, and with a distinctive checker pattern and color scheme). I love these pants - they are really comfortable - but I feel humiliated to have my mid-riff paraded on the TV dozens of times per day, and since I wear these pants a lot, I am sure my friends and students are seeing me and snickering. I am not even very overweight, I don't think. I contacted the TV station and they said the picture is non-identifiable and it would cost them a lot of money to re-edit the promo, so there is nothing they can do. Do I have any legal recourse, or what arguments can I make to the TV station to please not use this image of me? Thanks in advance.

posted by Quadroonian to society & culture (35 comments total)

I don't know about legal recourse, but in terms of arguments, you might consider introducing yourself and talking about your life and your personal style - perhaps contacting a newspaper with your story and writing a column or a letter. Newspapers love to criticise their competitors' content. There's really no need to objectify obese people by showing 'anonymous' people who didn't consent to being broadcasted, and you'd be right to say so. There's no anonymity on a local news show.
posted by By The Grace of God at 11:32 AM on June 27, 2006

IANAL, but I'm pretty sure that the law stipulates that if you have no "reasonable expectation of privacy," anyone can photograph you and use those phots as they see fit.

That sucks, though. Sorry.
posted by kevinmeyers at 11:32 AM on June 27, 2006

Money to reedit the promo? Bullshit.

All they have to do is replace one shot.

Non indentifiable? That seems to the contrary, by the very fact that you've already recognised yourself.

Sounds to me like they're avoiding extra work.
posted by popcassady at 11:41 AM on June 27, 2006

If you go to any trouble to get it removed, you'll likely make a bigger deal out of it than it already is. I'd be shocked if more than one or two people actually recognized you in the promo. Everyone's seen millions of these commericials and they all blend together over time. Your outrage will attract more attention to you than the clip itself.
posted by ZackTM at 11:42 AM on June 27, 2006

As far as I understand it (not very far, sorry), they can't make money off of your "likeness." The testcase for this bit of commonlaw came about from a girl's photo that appeared on a bag of flour. I guess if your pants were unique enough, that they might qualify.

Perhaps speaking to an attorney (in a free, consultation-type manner) would clear it up. He or she might issue a sternly worded letter that might scare the station into dropping the promo (or, more likely, re-editing it).

This is what stock video footage is for assholes!
posted by zpousman at 11:43 AM on June 27, 2006

I don't know if a photograph implying you were obese would count as slander or libel or whatever that law is. I guess it might not if you meet the medical definition of obese. But I'm not sure.

If the pants are very unique to you, and you can prove it in court, AND what was being done was libel, you could win a judgement against them. That's a lot of ifs -- can you afford a lawyer? My AP style manual specifically mentions a case where a woman sued because of a picture of her knees -- which were apparently weird enough to be easily identifiable. She won.

But personally, I really doubt it's worth the trouble.
posted by teece at 11:44 AM on June 27, 2006

The alternative reaction is to parlay your displeasure into celebrity. Picket outside the station with a sign that says, "Why are my pants on TV?" Talk to every reporter in town. Contact some local DJs and see if they'll put you on the air. People love little-guy-versus-authority stories, and if it's about a garish pair of pants, all the better. Have fun.
posted by Faint of Butt at 11:44 AM on June 27, 2006

anyone can photograph you and use those phots as they see fit.

That's not right. There are several categories of use that can be prevented, such as publicizing private facts, using your image for commercial benefit (as in selling posters with your image on them), suggesting that you endorse their product, or defamation.

This could be defamation. Demand that they immediately cease broadcasting the defamatory clips, and tell them you will be getting an attorney. If that doesn't work, get an attorney to make the demand.
posted by grouse at 11:48 AM on June 27, 2006

Popcassady, it would take time for someone to go back and edit the thing. Time = money.

Let me tell you something, they don't give a rats ass about your complaint. I wouldn't bother.

IANAL, but as far as I can discern if they shot you in a public place and you are not personally identifyable (I'm pretty sure the pants argument would not hold up in court) they can use it for whatever they please, including promo purposes. That's the breaks and that's the risk you take when going into public. Someone could have just as easily taken your photo, with you easily identifyable, and use it for non-commercial purposes. They'd only need to get your permission if they were using it for commercial gain or it made you look like you approved of something or they used it to defame your character. You give up privacy when you go out in public, my opinion is you laugh it off and learn to live with it. Your students could just as easily have already laughed at you if they thought you were fat or you had silly pants. Get over it.
posted by crypticgeek at 11:49 AM on June 27, 2006

The testcase for this bit of commonlaw came about from a girl's photo that appeared on a bag of flour.

But...

A local news station in my (small) town

And if you say your trousers are quite recognisable, you've got a pretty strong case for libel.

All that you've got to prove is; the film has caused you stress/discomfort... and possibly, you're not overweight (/overweight enough to be singled out)
posted by popcassady at 11:51 AM on June 27, 2006

(I am a law student, but not a lawyer. I'm definitely not your lawyer. This is not legal advice. Etc, etc).

Well...were you in public? Does the video portray you in a way that is substantially inaccurate? If the answers are 'yes' and 'no,' then I think you're probably out of luck.

One generally doesn't have a right to privacy in public, and libel only comes into play if the station knowingly published false information.

There is an exception, however, if the image were used for commercial purposes, such as advertising a product. The reasoning being that it implies that you endorse the product. Since the image is being used in the advertising for the story, not just the story itself, you may have an argument there.

Since this is a torts issue, the law varies from state to state. I see from your profile that you're in Illinois.

Illinois does seem to require that the offending image be used in an advertisement. However, there is an exception for the news media. I quote from Berkos v. National Broadcasting Co., Inc.:

"A commercial appropriation claim cannot be stated where a plaintiff's name or likeness has been used as part of a “vehicle of information,” such as the news media."

The court continued:

"This result is not altered by Berkos' claim that he could amend his pleading to allege that NBC utilized “teasers” or “hype” to increase viewer share of the 10:00 p.m. broadcast. Even were we to assume that NBC and Karl did indeed obtain a certain commercial advantage by such conduct, the so-called “teasers” pertained to news reports. As such, no commercial appropriation of name or likeness occurred."

It looks like you're probably out of luck either way. Sorry.
posted by jedicus at 11:53 AM on June 27, 2006

Wow. Thanks for the quick responses. I have an anxiety issue (so some of the more public solutions above won't fly, but thank you) and the effexor has made me gain some weight. My BMI is 32.4, which technically makes me obese. I guess these pants aren't the most flattering ones because I sure look at home with the other folks they pictured. (I think they didn't use stock pictures because the series is about obesity here).
posted by Quadroonian at 11:59 AM on June 27, 2006

Quadroonian: If you can afford a lawyer, a letter from said lawyer to the station will likely clear this up right away. It could easily be a couple of hundred well spent dollars for your peace of mind.
posted by caddis at 12:05 PM on June 27, 2006

Oh it's probably worth noting that unless you could prove actual damages, you would probably only receive nominal damages for this intangible tort. Actual damages would be granted for things like loss of a job or mental anguish beyond your own worry and concern (e.g., being teased by strangers, coworkers, etc). Nominal damages would be something like a dollar and 'vindication in court,' whatever that's worth.

The point is that if you brought suit, you would have to pay your lawyer upfront since they couldn't get enough money to warrant a contingency fee arrangement. The upshot of this is that even if the suit were good (and I don't think it is), the station would have a high incentive to fight a war of attrition rather than settle, since virtually any settlement amount would be higher than the cost of the suit. Such is the dirty reality of civil litigation.

I suppose if the story were reaaaalllly embarassing and mocking of obsese people then perhaps you'd have an argument for punitive damages in a defamation suit. That is, you'd have an argument that the station photographed you and talked about obese people in such a horribly defamatory way that it amounted to gross negligence. I'm not gonna bother dredging up the Illinois definition of gross negligence, but it's probably something like 'they knew that what they were doing would be defamatory and they did it anyway.' But it's pretty unlikely that they would run such a story.
posted by jedicus at 12:06 PM on June 27, 2006

grouse and popcassady:

IANAL but I did take a few media law classes. If you sue someone for libel, you basically have to prove that they knowingly presented false information about you with malicious intent. This is hard to prove even in cases that seem to be cut and dry, and I don't think there's any way to prove that the camerman, editor and producer of the promo conspired to knowingly libel Quadroonian. It doesn't seem like any information was presented about Quadroonian (other than the implications of a midsection in a promo about obesity), and I don't think that "garish pants" would be enough to identify anyone.

Basically, this sucks, but I don't think there's anything Quadroonian can do but ask them to pull the promos, which seems to have already failed.
posted by subclub at 12:07 PM on June 27, 2006

You could consider it a warning shot. Time to ditch those pants?
posted by popcassady at 12:08 PM on June 27, 2006

IAAL. Check with one in your state. He or she will be able to explain your rights, which can vary from state to state.
posted by Ironmouth at 12:14 PM on June 27, 2006

jedicus seems to have it right. The legal issues are complex - "privacy" is a subject with a deep legal past and "invasion of privacy" is something that is quite nebulous.

You might check out from the library a book called "The Unwanted Gaze", by Jeffrey Rosen. It covers a wide variety of privacy issues, and it may give you some comfort to read about people that got screwed over even worse than you did and found they had no recourse in the courts.

All things considered, you will find it very hard to get legal satisfaction. What I would do, I think, is put those pants away and forget about them for a year or a two.
posted by jellicle at 12:22 PM on June 27, 2006

Don't they frame the shots for these segments in this manner specifically to avoid embarassing the individual or bringing litigation upon themselves? If that's the case I think you're SOL.
posted by prostyle at 12:28 PM on June 27, 2006

subclub: malice can include reckless disregard for whether the statement is true or not, not just intent.

But let's get this straight. I'm not suggesting that Quadroonian sue the station. That would be an expensive endeavor that would be unlikely to be fruitful. I'm suggesting that he indicate his seriousness to the station by getting an attorney to tell them to cease and desist. They might ignore that as well. Or they might decide that the minutes of staff time it takes to re-edit it is worth it to make this problem go away.
posted by grouse at 12:32 PM on June 27, 2006

grouse: True, but it doesn't sound like reckless disregard is an issue here.

Quadroonian: If you want to pursue this further, I agree that a letter from a lawyer (or even better, a C&D) might get the job done. I'm sure the station realizes they're on solid legal ground, but if you pester them enough, they might cut the shot just to shut you up. It just depends how much time/money you want to devote to this.
posted by subclub at 12:44 PM on June 27, 2006

My ex has worked in the Canadian media for over thirty years, and explained to me a while back that if it's visible from any public area, then it's legal to shoot.

If they're being shitty about it, just go to their rival station and sell your story. Or contact them and threaten to do so. Just personally, I'd take it as an indicator that I need to do something about my weight.
posted by saturnine at 1:02 PM on June 27, 2006

By the way, I hate that term "obesity epidemic." There is no such thing. The word epidemic means "spreading rapidly and extensively by infection and affecting many individuals in an area or a population at the same time" not "we all eat too much fast food." Damn scare tactics.
posted by mattbucher at 1:03 PM on June 27, 2006

Not helpful at all, but they do silly stories like that on my local news all the time, and I've always thought how horrifying that would be if I realized that was my rear end they were using for the promo. Sorry this happened to you, Quadroonian.
posted by chiababe at 1:34 PM on June 27, 2006

I am sympathetic, but won't this be over before you could even pursue legal action? Even a multi-part series should be done in, what, a week?
posted by Bud Dickman at 2:03 PM on June 27, 2006

If it were me, I'd ditch the pants. No matter how this turns out otherwise, you're bound to associate some negative things with those pants from now on.

At least demote them to gym/dirty-work clothes.
posted by divka at 2:16 PM on June 27, 2006

Losing weight is the best revenge!
posted by JamesMessick at 2:21 PM on June 27, 2006

The battles you choose can define your life. Throw away the pants and forget about it.
posted by LarryC at 2:33 PM on June 27, 2006 [1 favorite]

Sorry, Quadroonian. Sounds very unpleasant.

Your anxiety issues could help your case - eggshell plaintiff theory, meaning that they take you as they find you, and they might have caused more emotional distress to you than they would to someone without an anxiety issue. I'm not saying it's a good case, but just an argument that could be used if a letter is sent to the station. (IAAL, but wasn't too hot in torts, so could be off on the applicability of eggshell plaintiff to this sort of situation.) My inclination would be to fight, but not so much that it cost me serious cash, or exposed me more to the public. So I would think about getting a lawyer to send a letter like that, on the chance that it might work, and if not, I'd drop it.

Anyway, lose those pants! Treat yourself to something to make you feel better. And I doubt anyone will recognize you.
posted by Amizu at 2:42 PM on June 27, 2006

Just to put a different perspective out there . . .

While as a compassionate fellow human I do feel sympathy for your case, I really don't know if the TV station did anything wrong here.

Libel and slander is deliberately hurting someone or defaming someone and using lies or misrepresented data to achieve it. You are admittedly somewhat overweight and they are doing a special on weight issues. They never said anything untrue.

You were in a public area, and at least in the US, have no right to expect privacy in public. If a family was filming a home video and you happened to walk by, you probably wouldn't be offended if you wound up in their shots. It's a similar situation - they filmed a public place and you happened to be there, so you were included in the shot. They actually went above and beyond by removing your face. Again, nothing criminal here.

As far as suing for emotional distress, what grounds do you have? I'd be hard pressed to find a jury or a judge that would be sympathetic to a case where your feelings were hurt based on showing a pair of anonymous pants on a TV teaser.

Again, I don't think it is right and I do feel for you, but there isn't much more you can do about the situation. You've already contacted the station, they said "No", and have no reason to accomodate your request based on law. The news episode will air soon, then you'll be off the TV commercials, and life will return to normal. As much as it sucks, just accept it and move on.
posted by galimatias at 3:28 PM on June 27, 2006

Obesity isn't epidemic in the USA, it's endemic.
posted by five fresh fish at 7:17 PM on June 27, 2006

Do I have any legal recourse

Hi there, I spent many years in media and dealt professionally with issues exactly like this.

Assuming you were filmed in a public place where you had no reasonable expectation of privacy ...

Are these pants instantly and unmistakably recognizable as part and parcel of your social reputation? Is it reasonable to say that no one else in your city shares your taste in pants, that these pants have come to symbolize YOU and you alone? Is it reasonable to say that the vast majority of people you know would instantly recognize you from this video alone? Are you now suffering actual damages because of this ridicule? More than just feeling embarassed -- you're actually being ridiculed by others, people are mentioning it to you, you're the laughingstock at work, you're in therapy, etc?

If these things are all true, you might have a case. There are precedents to these sorts of things, actually. But the bar is set pretty damn high. You'd have to prove with significant evidence all of the above and more.
posted by frogan at 9:37 PM on June 27, 2006

Thanks everyone. On reflection, I agree it would just drag out the experience to push on the TV station. I really should get rid of those damn pants, especially now I see how they make my ass look fat. And lose weight. Memo to self: lose weight, pants.

For the morbidly curious, picture this fabric made into these pants, only with more of a brightgreen/darkgreen/yellow/peach-ey thing going on) and elastic ankle cuffs. OK, I so am ditching the pants.
posted by Quadroonian at 10:46 PM on June 27, 2006

Keep the pants. Just don't wear 'em for a while. A month or two oughta do it, the public's memory is very short.
posted by kindall at 1:47 AM on June 28, 2006

I really don't know if the TV station did anything wrong here.

Using a tired cliche shot should count as something wrong. And at the very least, it's rude to highlight an individual's weight in public, let alone do it for profit. Filming someone's rear and stomach with the intention of showing them to others is crass, even if it's legal. News people often have to be rude to do their jobs, but for this kind of story? In a small town? Crass crass crass.

That said, ya just gotta laugh this one off, Quadroonian. Sounds like you're well on your way. And maybe reconsider making some money from it by pitching it as a light-hearted column to the local paper. I bet there'd be lots of other folks who'd empathize.
posted by mediareport at 5:19 AM on June 28, 2006