Category: Journalism

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.

NYTimes Reports: Propaganda Mills Have Replaced Local News

“You provide the prose poems. I’ll provide the war.” – Charles Foster Kane, Citizen Kane

You are probably familiar with “advertorials,” the relatively benign mash-ups of information and advertising offered by many print and online publications. For instance, a regional electric service company that sells generators might publish a page that reads a lot like an article suggesting some good reasons to consider a backup generator for the coming Winter. This blurring of editorial and marketing is usually transparent to the reader and, in most cases, the publisher explicitly states somewhere on the page that it is a paid ad.

But according to a story published Sunday by the New York Times, millions of Americans are now reading articles they perceive as local news, but which are in fact the equivalent of advertorials, paid for and directed by political operatives and major business interests. And the articles are in no way identified as distinguishable from real news. Focusing primarily on a network owned by former TV reporter Brian Timpone, the Times states:

Maine Business Daily [MBD] is part of a fast-growing network of nearly 1,300 websites that aim to fill a void left by vanishing local newspapers across the country. Yet the network, now in all 50 states, is built not on traditional journalism but on propaganda ordered up by dozens of conservative think tanks, political operatives, corporate executives and public-relations professionals, a Times investigation found.

The Times feature describes a content mill in which freelance writers—many who might otherwise be real journalists if the industry had not been gutted by the “free content” cluster bomb dropped by Google & Co.—are paid pennies on the dollar to write articles with very clear instructions as to what they should say about political figures or matters of public policy. Not only are the articles not local news in any sense, but a story aimed at, say, residents of Hanover, New Hampshire may be written by somebody sitting in her apartment in Atlanta, who has been paid between $3 and $22 for coloring in a few lines provided by “the clients.” How this is demonstrably different from Russian troll farms is a mystery to me, except that I imagine Russian trolls are paid better. The Times article states:

The network is one of a proliferation of partisan local-news sites funded by political groups associated with both parties. Liberal donors have poured millions of dollars into operations like Courier, a network of eight sites that began covering local news in swing states last year. Conservative activists are running similar sites, like the Star News group in Tennessee, Virginia and Minnesota.

The most compelling (okay, infuriating) example cited by the Times describes how hotel magnate Monty Bennett, a major donor to President Trump, used the MBD network to lobby for a coronavirus stimulus bill in a manner that ultimately garnered his publicly-traded company a $70 billion government bailout. The Times also reports that Mr. Bennett also paid for articles designed to influence at least some of the rhetoric vis-à-vis U.S. China policy in response to the pandemic.

So, if you find yourself wondering how millions of Americans can believe any of the crap the president says, or why they are not outraged when millions of tax dollars allocated for “small-business” support winds up in the accounts of major corporations, at least some of this mass cognitive dissonance can be explained by the amount of professional propaganda online that is so easily disguised as journalism.

Thanks entirely to the democratizing power of the internet, the political propaganda game is bigger business than ever. The hippie/libertarian mantra that “information wants to be free” (which was not even the whole quote) became the business model for Web 2.0. Thus, the alleged monopoly on “information controlled by mainstream news organizations” was the cocktail shaker where the anti-copyright narrative collided with our political divisions, added a heaping dollop of conspiracy theory, and poured forth a river of yellow journalism that might even disgust some dormant scruple in Mr. Hearst himself.

Whatever was imperfect about mainstream journalism, it was professional and, in general, there were standards. As I said in an older post, there was a lot to be said for TV news before the expansion of cable. It was mandated by law and a money-loser for the networks. Consequently, there was no reason not to separate the news division from entertainment and let the journalists do their jobs. Millennials and Zoomers have no knowledge of this era, and I daresay a few Boomers have forgotten it. The fact is that less was way better than more. As I said in that same post, we used to argue about what to do next or how to do it but not about what has already happened. The truth was not nearly so subjective for the vast majority of citizens.

What cable TV initially did to news, the internet did to everything, and at logarithmic scale and velocity. Yet, even as we watch disinformation trample sanity in the streets, the tech-utopians in the blogosphere and many of the executives in Silicon Valley still cling to the narrative that more speech is the antidote to bad speech. This premise was naïve when Justice Scalia articulated it in context to the Citizens United opinion, and it was no wiser when the major internet companies asserted it (with the help of the EFF, Techdirt, PublicKnowledge, et al) in defense of their revenue streams.

Now, as we watch Twitter and Facebook try to stuff the arms and legs of their genies back in their bottles, this Times story reveals why those efforts are almost laughably futile. Local newspapers have been wiped out by the “natural price of zero,” and in their place, propaganda networks serve heaping portions of cheaply-made garbage to a public that not only can’t tell the difference, but increasingly doesn’t even want to know. Confirmation bias may have achieved its apotheosis this week when the President of the United States, in the middle of a pandemic, called one of the world’s top infectious disease experts an “idiot.” And yet, the tech-utopians and speech absolutists keep saying more—more speech is the antidote to bad speech. Really?

Thank You, Christopher Dickey

Interview with Christopher Dickey. August 29, 2012.

Yesterday, the world lost one of the great journalists, and great human beings, who have shaped our thinking in the last half century. American correspondent Christopher Dickey died in Paris at the age of 68. I will not attempt to eulogize, or even summarize his contributions to reportage and literature. There are dozens, or more likely hundreds, far better suited to that task, and who will doubtless attend to it. For starters, his colleague Barbie Latza Nadeau, wrote a beautiful tribute for The Daily Beast.

But because Chris was an old family friend, and because he was so gracious, he was kind enough to be the subject of the first podcast interview for this blog when it launched in 2012. We talked for over an hour about journalism and security in the digital age, and he is such a polymath that it was no easy job deciding what to cut for the roughly 30-minute conversation that was ultimately published. I listened to the interview again this morning, and, unsurprisingly, Chris’s insight remains instructive, even in a world that has changed so dramatically in eight years. I wish I could ask him new questions, but that only puts me in a very, very long line. I will always be grateful to Chris for this kindness, and others, and wanted to re-post the interview today upon learning this sad news. My sincere condolences to his family and to so many who knew and loved him.

Archery photo source by: daseaford