About That McCloskey Photo

There are a lot of posts going around lately about that photo. You know the one. It depicts St. Louis attorneys Mark and Patricia McCloskey standing locked and loaded—he with an AR15, she with a Bryco Model 38 handgun—in front of their large house on the afternoon of June 28th. That was the day when approximately 500 protestors, in response to the murder of George Floyd, entered a private, gated neighborhood and passed the McCloskeys’ house on their way to protest outside the home of St. Louis Mayor Lyda Krewson. According to one ABC News report, the couple grabbed their weapons “when two or three protesters — who were white — violently threatened the couple, and their property and that of their neighbors.”

While that factual allegation begs many questions, I shall avoid litigating the McCloskeys’ decision to brandish firearms in this instance other than to say that they made a conscious choice to do so with a very reasonable expectation that their actions would be recorded by a multitude of cameras. One of these was the camera of professional photographer William Greenblatt, who captured the image that truly made the McCloskeys famous, or infamous depending on one’s point of view.

The reason I’m writing about it on this blog is that headlines and comments report that the McCloskeys are suing Greenblatt for, among other things, the “copyright in the photograph.” Their complaint appears to be a counter-suit in response to the fact that Mr. Greenblatt sent the couple an invoice for $1,500 after they made unlicensed reproductions of the photo for this year’s McCloskey Christmas card (jolly, no?).

The named defendants in the suit include Greenblatt, United Press International (UPI), and a company called Redbubble, which apparently licensed Greenblatt’s image to reprint on merchandise that, as one might imagine, lampoons the couple. So, now we have a ballgame. But if we separate the volatile, emotional issues surrounding these events, what are the legal aspects in this little pissing match on the Mississippi? And before I go there, let me stipulate that despite my own impression of the McCloskeys as ridiculous figures, I acknowledge that photographs can be very deceptive storytellers, even images that appear to say precisely what Greenblatt’s photo appears to say in this instance.  

The McCloskeys filed a litany of right of publicity (ROP) complaints in Missouri State Court. Missouri recognizes common law rights of publicity as intertwined with the right of privacy, and the McCloskeys are suing the co-defendants for reputational harm and emotional distress stemming from the exploitation of the photo and the associated public ridicule. Among the forms of relief they ask for is “an order transferring ownership of the Photo and any other media captured while trespassing ….”

The complaint rests substantially on the allegation of trespassing, which is an invasion of privacy; and, as a technical matter, Greenblatt and the protestors were supposedly doing just that. The protestors reportedly broke down a gate and entered a private community—an accusation* that has given many gun rights advocates grounds to argue that the McCloskeys acted properly.

But regardless of the presumption that all 500 protestors were, strictly speaking, trespassing on a private road, Greenblatt was there as a photographer, documenting events as they happened. He has the right to follow a story almost anywhere it leads. And whether more Americans applaud or scorn the McCloskeys’ decision to bring out their guns, even if Greenblatt was standing on private property, doesn’t necessarily matter. What the McCloskeys did constituted a newsworthy event that Greenblatt captured, as did hundreds of other amateur photographers.

So, to the extent that an invasion of privacy could undermine the photographer’s right to capture the image in the first place, it strikes me that the trespassing would only be relevant if the protestors intentionally drew the McCloskeys from their home with the purpose of making them feel threatened and ridiculed, and that Greenblatt capitalized on that intent, as the complaint almost seems to imply. I am speculating here, as I am hardly versed in Missouri ROP case law, but I suspect that Greenblatt’s press right to capture a newsworthy moment will ultimately prevail (if this case even proceeds) over the allegation that he intentionally trespassed with the purpose of exploiting the McCloskeys for his own financial gain.

The facts as we know them support the narrative that the McCloskeys reacted to the protestors (a subgroup in a nationwide protest), who were walking past their home, and Greenblatt merely photographed the couple once they engaged in voluntary conduct in plain view of several hundred people. The McCloskeys’ decision, right or wrong, was no longer private. On the contrary, it was destined to be national and international news the moment they stepped outside, unless one can reasonably believe that they were somehow unaware that nearly every protestor would be carrying a camera.

That Greenblatt’s newsworthy photograph, among many others, went viral online—and inspired a whirlwind of ridicule—should not be a matter of Mr. Greenblatt’s liability or anybody else’s. Further, it strains reason to believe that the McCloskeys consider the image wholly damming if they really did use it to make a Christmas card. At best, this implies that they do not really mind the image itself, as long as they can try to control its interpretation in a flattering light. If that is their intent, this would be one reason why the couple would seek transfer of the copyrights in the image.

But aside from the fact that there is no controlling how the public will interpret any image, the negative perception of the McCloskeys was likely formed within minutes after their gun-toting images appeared online. Regardless, what the McCloskeys did was significant news. And even in most cases where the invasion of privacy is more aggressive, and the photograph taken is less newsworthy (e.g. paparazzi hounding certain celebrities), courts tend to favor the photographer’s right to capture and distribute the image. 

Overall, I suspect the St. Louis couple is about to learn that the subjects of photographs very rarely have any right to control the use of those photos, and that the prospect of obtaining the rights to Greenblatt’s photo as a remedy to their ROP complaints is quite low. That said, there may be a legal path forward on the merchandise aspect vis-à-vis Redbubble because the merch in this case implies extended public ridicule for commercial gain, a subject that may deserve deeper consideration in principle.

After all, if instead of ridiculing the McCloskeys for engaging in conduct that many people find absurd, we were talking about selling merchandise with an embarrassing Emma Watson photo to consumers who hate her for her outspoken feminism, we begin to see how this kind of image exploitation can be rather disquieting.

It was inevitable, living in an age of self-surveillance with a networked camera in every hand, that we would increasingly see stories that convoke the common law rights of publicity and privacy with the federal rights of press freedom and copyright. And while the McCloskey lawsuit may prove fairly straightforward for the reasons stated—and it barely has anything to do with copyright—some of this story’s themes are reprised in a much more complex narrative unfolding with regard to celebrities and photographers whose pursuit of their image push the boundaries of stalking. I will try to make that the subject of a post in the near future.

*Originally published as “a fact that has given…” Thanks to reader David Carson, photographer at the St. Louis Post-Dispatch for sharing this video link showing the manner in which the protestors entered the community.

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