Breastfeeding Mom Can Sue Video Producer Despite Signing a Blanket Release–Sahoury v. Meredith

By Eric Goldman

Sahoury v. Meredith Corp., 2:11-cv-05180-KSH-PS (D. N.J. Aug. 2, 2012)

Sahoury consented to being video-recorded while breastfeeding for inclusion in an instructional video. She claims that the video producers orally agreed to two conditions: (1) the instructional video would only be shown on cable TV and the Parents magazine website, and (2) the video would not reveal the full name of Sahoury or her baby. However, she signed a blanket written release that didn’t reference either promise. She says the release was presented to her after the taping, as she was in a rush to leave. Sahoury alleges that the producers broke both oral promises by posting the video to YouTube with her full name. She then alleges that rogue actors downloaded the video from YouTube and spliced the video of her breastfeeding into pornographic videos featuring a model who looked like her; and the rogue video referenced her full name and was distributed widely, ruining her vanity search results. To combat this, she hired a reputation management service.

Frustrated by the video producers’ lack of pursuit against this rogue distribution, Sahoury sued the video producers. In this ruling, the court largely upholds her lawsuit against a motion to dismiss, mostly based on Sahoury’s argument that she relied on the oral promises made by the producers. However, the court dismisses her publicity rights claim because using her name in connection with a freely available instructional video doesn’t have enough commerciality.

From a legal drafting standpoint, it’s interesting that the signed blanket release wasn’t dispositive. The release might still work later in the case, but it didn’t knock out the case on a motion to dismiss. She basically gets around the release by arguing procedural defects (presented after the video was shot, as she had to leave quickly to get her kid) and the contrary oral promises. Naturally, video/photo producers should never make oral promises to the depicted people that contradict the written releases. Here, it opens the door for the judge’s outrage about Sahoury’s treatment.

Putting aside the legal issues for a moment, I’m confused because Sahoury’s allegations all rest on a questionable factual premise. It appears she thinks that she could avoid being reidentified if only her first name was used, but obviously this is wrong. As we’ve seen repeatedly, she could be easily reidentified by third parties in the comments or elsewhere online–especially as facial recognition technology improves. And, the ability of pornographers to extract and remix the video was equally possible if the video was on YouTube, on or only shown on cable. In other words, by consenting to the production and distribution of a widely available video showing her breast-feeding, she was vulnerable to the porn splicing no matter what. Finally, as we saw in the Bev Stayart cases, a person’s name can be splogged into web pages with adult content even if the person has done nothing supporting that association. So from my perspective, Sahoury never had a chance of achieving her putative objectives.

In light of where she is now, what can she do? (beyond reputation management and suing the initial video producers). She could try to go after the rogue video remixer and the various porn sites distributing the video. She would have to rely on privacy claims, as she doesn’t own the video’s copyright (more on that in a moment). Further privacy litigation against these third parties isn’t likely to be productive. The rogue video remixer and porn sites aren’t likely to be easy targets–they could be overseas, they are almost certainly judgment-proof, and there are just too many targets–and the privacy claims will be partially undercut by the wide public release of the initial video.

Similarly, legal efforts against search engines to de-index the porn sites linking to her name aren’t any more productive. Bev Stayart has shown this is a losing proposition, and 47 USC 230 would also apply to any privacy-based claims.

In contrast to privacy claims, copyright infringement would provide Sahoury with a real cudgel. This is why we’re seeing the troubling hack (most recently blogged in Scott v. WorldStarHipHop) of a photo/video subject acquiring the copyright to the visual depiction of them and then turning into a copyright plaintiff. Something like that would be a logical approach for Sahoury here. She can settle up with the initial video producers, get the copyright to the video or at least the portion with her in it, and then send copyright takedown notices not only to the republishing websites but to the search engines as well. I can’t really applaud this approach, as it relies on the unwarranted power of copyrights over other legal claims.