You’re Getting Sued for What? An E & O Odyssey (Pt 12)

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This post is part of an occasional series highlighting the type of risks which film and TV producers face and which are supposed to be covered by “errors and omissions” (E&O) insurance.  The series aims to demonstrate that what might seem to a producer to be unjustified paranoia on the part of their lawyer is, on the contrary, well-founded paranoia.  These posts will point to actual lawsuits which have been filed against producers and distributors for various alleged rights infringements (whether copyright, trade-mark, right of publicity, or otherwise) – and which inform the nit-picking approach taken by producer’s counsel.

As reported by The Hollywood Reporter‘s entertainment law blog, Hollywood, Esq., the producers, distributors and broadcasters of the television series Southland are being sued by the family of a deceased individual whose autopsy photo is used in the opening credits montage of the show. The mother and daughter of the deceased individual claim that, as a result of the photo’s use, they have suffered “anxiety, anger, hopelessness, fear and distrust of authority” along with “physical and emotional discomfort, injury and damage,  apprehension, psychological trauma, loss of dignity, nightmares, loss of trust”.

The lawsuit raises an important practice point. Often when assessing whether the use of a photograph would infringe the rights of a third party, lawyers will focus on issues relating to the rights in the photograph: copyright in the photograph, copyright or trade-mark rights in any materials depicted in the photograph and personality rights attached to any individual depicted in the photograph. The lawsuit is a good reminder to also consider whether the use of the photograph could intersect with the rights of not only the people in the photograph, but with the rights of a third party: is the photograph being used in a way which could give rise to a defamation claim (e.g., a photograph of a person’s face is being shown to someone to see if they will identify the person depicted as having committed a crime) or to a more remote claim for trauma (such as that contemplated by the Southland lawsuit).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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