legal problems in photography
Libel by Photograph
LIBEL BY PHOTOGRAPH is a problem that is closer to both amateur and professional photographers than they generally realize.
It is also a problem that has captured the interest of some of our readers in recent months, for there have been a number of questions about the subject in our mail.
We were recently told by a photographer that a picture cannot possibly be libelous (at least if it has not been doctored), since a picture tells the truth and the truth cannot be a libel. He was wrong on the first count, and not entirely right on the second.
First, we all know that pictures do not always tell the truth. Optical illusions are sometimes created by the camera just as they are by the human eye—a point that was made quite clear by a very interesting case in the Federal Courts some years ago.
The plaintiff was a widely known gentleman steeplechaser whose picture was used in connection with an endorsement for Camel cigarettes. Plaintiff had posed for the picture in question willingly, and had been paid for his testimonial. He did not, however, see the photograph before it was actually used. By a quirk of lighting, the picture showed the horseman with his hand under the pommel, and the side girth fell loosely in such a way that it seemed to be attached to the plaintiff’s middle rather than to the saddle. Looked at in this way the photograph became, in the words of the Court, “grotesque, monstrous and obscene”; and the legend under the photograph which said: “Get A Lift With A Camel” reinforced the ribald interpretation.
The Court recognized that an optical illusion had been created and that the photograph carried “its correction on its face as much as though it were a verbal utterance which expressly declared it was false * * Nevertheless, the Court said, the picture exposed the plaintiff to overwhelming ridicule. It made of the plaintiff a preposterous, ridiculous spectacle, and the obvious mistake only added to the amusement. The Court added that had such a picture been deliberately reproduced, surely every right-minded person would agree that he would have had a genuine grievance, and the effect is the same whether it is deliberate or not.”
As to the plaintiff’s having consented to the use of the photographs for which he posed for an advertisement, the Court luled that this was not a consent to the use of an offending photograph. The plaintiff had no reason to anticipate that the lens would so distort his appearance. The Court would not fix upon the plaintiff the responsibility for whatever the camera might turn out, as long as he did not see and approve the picture before publication. While the case ot the steeplechaser seem a bit unusual on its facts, the C decision in the case rests on certain elements in the law of libel, which^ photographers should understand *
A libel, as it is defined in the law d* tionaries, is “that which is written1C printed, and published, calculated to ° jure the reputation of another by bri'ing him into ridicule, hatred, 0r co& tempt.”
While truth is generally regarded aSaj absolute defense to libel, there are somi jurisdictions which hold that even trull is not a defense if the libel was maii cious. Here are some typical example of statements that have been held libelou by the Courts. It is a libel to say that' man is insane, or that he has an infection disease, or that he is illegitimate, or tha he is guilty of a crime, or that a womai was served with a summons in her bath tub.
To avoid any possible confusion, w should also point out that in many in stances other than where truth is relie on as a defense, the publisher of a fais and defamatory statement has the pffy ilege to do so. For example, Congress men have an absolute privilege in speech or debate in either House; an newspapers may report statements mad in legislative or judicial proceedings, pre vided the report is fair and accurati There are other privileges but they ar not important to our discussion at thi time.
Applying the basic principles of lib; to photography, the Courts have righi fully said that a man may be held u as an object of ridicule, contempt, or h: tred by means of a picture, just as he ca by words.
You may have noted in the definitio of the term “libel” that publication is rt quired. This does not mean that only pit tures which appear in magazines or new: papers can be libelous. The term “put lication” is far broader than this an includes all types of display. Thus, if photographer places one of his prints i a showcase in front of his studio or show the picture to people other than the sut ject, he has “published” that print. Mer possession of a print is not publicatioi The distinction is important.
One area in which photographers mu: exercise caution involves the caption placed on pictures, for a perfectly harrr less photograph can be made libelous b an improper caption. The photograph c the steeplechaser did not require a cap tion to make it libelous. But here ar some cases where captions caused th trouble. In one instance the words “Fatt; Arbuckle’s Lady Love” were printer below the picture of the plaintiff. The put lication was held libelous, for the plain tiff was a married woman and the com bination of picture and caption held he up to disgrace. The Court said that the combination imputed an illicit relation, ship between the plaintiff and the comedian. The same result was reached where ! a picture of the one-time wrestling chain.
I pion Zbyszko was captioned “Stanislaus Zbyszko, Wrestler, Not Fundamentally Different From The Gorilla In Physique." The wrestler’s picture was placed next to that of a gorilla.
Another interesting example of this problem occurred several years ago when a midwestern newspaper published the photographs of four schoolboys under the banner heading: “Slain School Girl Vanished with Someone in Cadillac.” Immediately below these pictures, in small type, was the further explanation: “These four acquaintances of murdered Patricia Birmingham are co-operating with police in seeking clues that may lead to the girl’s slayer.” This was followed by the names and addresses of the boys.
Five or six lines below these pictures, in type five to six times larger than that
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in the line immediately below the photographs, was a two-column subhead: “Four Youths Held. 60 to 70 Friends Face Grilling.” The boys brought an action for libel and the Court held that it was a question of fact whether the photographs, captions, and heads combined were capable of conveying the meaning that the four boys were the boys held on suspicion of murder. In other words, the question was one for the jury.
Almost all cases that will arise in this area of the law of libel involve (like the case just cited) questions of fact for the jury to decide. It therefore is wise for the photographer to examine the captions on his photographs carefully, and to avoid those which might seem clever but could possibly hold the subject up to ridicule.
Limitation of space prevents us from covei'ing all aspects of the libel problem applicable to photographers in this month’s column. We will discuss the subject further in future issues.— fes