Posting Mocking Photo To Social Media May Be Tortious….If You’re Shaq–Binion v. O’Neal
Jahmel Binion alleges that Shaquille O’Neal posted to Instagram and Twitter a picture of him that portrayed Binion in a derogatory capacity. Binion suffers from a skin disease that left him disfigured. Shaq posted a picture of Binion side-by-side with Shaq (“attempting to make a similar face”) captioned “SMILE PEOPLE.” Not surprisingly due to Shaq’s millions of followers, the picture received 17,703 “likes” and 735 comments.
Binion sued Shaq originally in Michigan, but it was dismissed on personal jurisdiction grounds and refiled in Florida. Shaq brings a motion to dismiss. The court allows several of the claims to go forward.
IIED: An intentional infliction of emotional distress claim required outrageous conduct, and plaintiff’s outrage must be reasonable (“mere insults, indignities, annoyances, petty oppressions, or other trivialities are not enough”). The court also says that any discrepancy in power between the parties is relevant:
simply put, society finds it especially reprehensible for the strong to pick on the weak.
The court says Binion’s allegation of outrage is plausible, and whether posting the photo is sufficiently outrageous enough presents a jury question.
Appropriation: The court notes that plaintiff need not be famous or demonstrate significant commercial value in her likeness. The mere act of misappropriation may be sufficient evidence of commercial value to survive summary judgment. Finally, turning to the commercial purpose requirement, the court says it is unclear whether Michigan law even imposes such a requirement. In any event, the court is satisfied by the allegation that Shaq’s social media presence is such a central part of Shaq’s brand.
Unjust Enrichment: The court also allows Binion’s unjust enrichment claim to move forward:
[the complaint] alleges that [Shaq] took a photograph belonging to plaintiff and used it without plaintiff’s permission as content on his social media accounts. Under these circumstances, retaining the benefit of the photograph would be inequitable.
[The court does not discuss preemption, and many cases find that unjust enrichment claims based on use of another’s content to be preempted by the Copyright Act.]
Remaining claims: The court dismisses the remaining claims. The negligence claim is actually a negligent infliction of emotional distress claim and this is only available under Michigan law where someone witnesses negligent injury to another person. The defamation and false light claims fail because there is no allegation of falsity. The intrusion claim fails because the photograph was not private (Binion had published it to his instagram account). The public disclosure of private facts claim fails because the photo was public and Shaq did not publicize anything that was previously private. Finally, the court dismisses the entity defendant because there are no allegations connecting it to the acts in question.
It is surprising that Binion did not try to bring copyright claims, even if he did not own the copyright in the image. Plaintiffs recently have not been shy about acquiring copyrights for the purposes of bringing claims. The Small Justice and Chevaldina cases come to mind (both of which resulted in fee shifts for the defendants, so maybe it wasn’t so crazy after all).
Cases where a plaintiff’s content or likeness is propelled to wider distribution resulting in opprobrium or ridicule are always interesting. Moreno v. Hanford Sentinel feels like the bedrock case in this genre, but I’m sure we will see a constant stream of them in the future. Of course, here, Shaq did not merely retweet or further distribute content that Binion made available, so the issue of whether someone could be held liable for disseminating content in a forum where content is intended for dissemination did not come up.
You wonder how the case would have turned out if Binion was a public figure, or if Shaq was a run-of-the-mill Twitter user. A good contrast to this case is Olson v. Labrie, an intra-family Facebook spat involving the posting of an awkward family photo. (The court rejected the claims in that case.) Binion’s public figure status as a plaintiff would have made his claims difficult from a First Amendment standpoint.
I think the average social media user can avoid liability by using a healthy dose of common sense. I think that advice is probably true for celebrities and power users as well. Perhaps such users would also be wise to consider their outsized social media footprint.
Perez Hilton reports that “Shaq FINALLY Apologizes For Mocking A Man With A Rare Disorder Online! Read His Tweet HERE!” The article does not report any settlement developments, but you have to think this will pave the way.
For years, eager plaintiffs have been desperately seeking ways to sue defendants for posting mocking content online. They must be cheering this ruling even if the rest of us are scratching our heads. Was posting the photo a wise or compassionate move by Shaq? No. Was it a federal case? Uh…
As Venkat intimates, this case looks pretty clearly like an example of celebrity exceptionalism, i.e., if Venkat or I had posted the photo, the court would have tossed the claim, but when the larger-than-life (both metaphorically and literally) Shaquille O’Neal with millions of followers posts the same photo, magically the common law becomes more malleable. Normally celebrities get special dispensation in their favor; this time, the court bends the law against the celebrity.
(I liked headlines in this case riffing on this theme: if you’ve got size 22 feet, be careful who you step on).
The publicity rights claim is especially dicey. There is no clear commerciality angle to Shaq’s post. The court gets around this by saying that an ordinary editorial tweet nevertheless is sufficiently commercial because the plaintiff alleges that “Defendant O’Neal cultivates his social media presence ‘as critical elements in the brand promotion of ‘Shaq.’'” But, in a sense, all social media users use the tools as part of defining and promoting our self-branding. So the court’s “logic” could be taken to a dark place where every tweet referencing or depicting another person has sufficient “commerciality” to support a Michigan publicity rights claim. Were it not for the court’s obvious celebrity exceptionalism, I would be deeply perturbed by that implication.
Case citation: Binion v. O’Neal, 15-60869 (S.D. Fl. Jan. 11, 2016)
Other Coverage: “Right of publicity case against Shaquille O’Neal over a photo he tweeted and posted to Instagram moves forward” (Evan Brown)