Privacy, publicity, and identity

Sometimes judges give helpful hints. I think Judge Kenneth Neiman provided one recently when he denied a motion to dismiss in a case about a photograph, Peckham v. New England Newspapers, Inc., 40 Media L.Rep. 1849 (June 4, 2012). The thumbnail sketch is this:

A newspaper photographer took a photo of a motor-vehicle collision showing the victim's arm waving from the wreckage. The victim's face is not visible. After running the story about the collision, the newspaper made the image available for purchase and reproduction on a number of products via its website, as is its practice with other images in its portfolio. The victim sued. The newspaper moved to dismiss, and Judge Neiman denied the motion, thereby allowing the case to go forward. You can read the judge's order denying the motion to dismiss here, and a thorough description of the case in context by the Citizen Media Law Project here.

"Name, portrait, or picture"

So what is the legal basis for trying to prevent the newspaper selling an image in which it owns the copyright?

In the complaint, counsel for the plaintiffs alleged violation of the right to privacy but did not refer to a specific statute. Judge Neiman points out which statute in particular the plaintiffs might want to focus on, namely M.G.L. c. 214, section 3A. This law establishes the right of publicity, which is related to -- but not the same as -- the right to privacy. Unlike the right to privacy, which upholds your right to be left alone, the Massachusetts right of publicity law allows you to control the commercial exploitation of your "name, portrait, or picture." In that sense it is similar to trademark law and the people who sue for infringement are usually celebrities attempting to stop unauthorized advertisers free-riding on their fame.

In some jurisdictions, such as California, the right of publicity is expansive, covering an individual's persona, identity, and voice. Here in Massachusetts, it is narrow, covering only the "name, portrait, or picture." There is no suggestion in Peckham that the newspaper is using the accident victim's name, and no reasonable person would suggest that the image of an arm amounts to a "portrait." To prevail, the plaintiffs will need to show that the image of the arm ids a "picture" of the victim and that selling the image of the plaintiff's arm alone, with no face visible, violates his right of publicity.

I suspect that the outcome of the case will hinge on the definition of "picture." It would have been helpful if, back in 1973 when it drafted the right-of-publicity statute, the Massachusetts Legislature had included the phrase "readily identifiable," but it did not.

So the Peckham case raises three questions: (1) Does the image at issue identify the plaintiff; (2) Does an image that does not identify the plaintiff come within the statutory meaning of a "picture"; and (3) Would the answer be different if the owner of the arm was a celebrity?

Judge Neiman's order mentions the fact that the Massachusetts courts have yet to fully explore the law regarding "newsworthiness."  Let's hope the Peckham case also provides an opportunity to explore the question of when a picture is a "picture" within the meaning of the right-of-publicity statute.

Three Things I Learned About Campaign Finance

"You never want to see my name and your name in the same newspaper story," is how Mike Sullivan, director of the state Office of Campaign and Political Finance (OCPF) opened his seminar in Westfield recently. He pointed out that to date there has never been a Herald or Globe headline lauding a political candidate for filing their financial statements thoroughly and promptly. The only time an article appears about a candidate's interaction with OCPF, you can be sure it's one he or she won't be asking supporters to like and share on Facebook.

OCPF's seminars are a must for candidates, treasurers, and active members of political committees. I went along partly because I'm no longer in full-time higher education and just had to stem my withdrawal symptoms. The Master's program at the Center for Public Policy and Administration, UMass, gave me some invaluable new insights into the policy-making process, economics, statistics, and public management. But I do have one criticism: It only lasts two years! Now that I've graduated I have to feed my learning habit where I can.

Public policy class at CPPA

So here are the three things I learned at the OCPF seminar that I'm going to remember when I'm working on or counseling a campaign:

1.  Citizens United: My other (more serious) reason for attending the OCPF seminar was the need to catch up on the impact of Citizens United on campaigns at the state and local level. As Mike Sullivan reminded us, Citizens United does not permit corporations to make unlimited contributions to candidates. So our state's statutory ban on corporate contributions to candidates remains in full force and effect. If you're running for, say, state representative and a supporter sends you a check drawn on a corporate bank account, can you deposit it? No.

What the Citizens United decision does allow corporations to do, to the chagrin of groups such as Move to Amend, is make unlimited independent expenditures in support of a candidate. That freedom to spend freely has yet to spur corporations to spread the wealth around here in Massachusetts, at least at the statewide and legislative level. But perhaps mayoral and city council races will be where independent corporate expenditures happen in the future. We shall see.

2. Planning: Political committees must not use public buildings for fundraising, and that includes discussions about fundraising. If your political party's town committee meets in the town hall, the public library, or the community room at the police station, make sure that you don't devote meeting time to planning the committee's next money-making event.

This rule puts committees in a tough spot. On the one hand, you want to meet in a public building because it's ADA-compliant and usually free or very low-cost. On the other hand, raising money to help get your party's message out is central to the mission of any political committee, and always will be unless and until the Post Office starts giving away stamps and printers stop charging for brochures and yard signs.

But I know you can't helping wondering, "What's the likelihood of getting busted for breaking such a silly rule?" Just bear this in mind: All it takes is one disgruntled member to rat you out to OCPF. If your committee has never had (and never will have) any spats, feuds, or minor disagreements that quickly degenerated into vicious vendettas, you're probably safe. And unique.

3. In-kind Contributions: Political committees, e.g. the Democratic State Committee or the State Committee of the Green-Rainbow Party, can make unlimited in-kind contributions to candidates. Yes, the word in front of "in-kind" is, indeed, "unlimited."

An in-kind contribution is something of value that you give to a candidate without receiving fair market value, and the regulatory definition includes office equipment, function rooms, and transportation (970 C.M.R. 2.07). Personal services such as writing do not fall within the statutory definition of "contribution" (M.G.L. c. 55, Section 1). In short, there is a lot that a political committee can do to help a candidate in addition to, or instead of, writing a check.

The OCPF seminar was definitely a worthwhile use of my time, and I suspect most if not all the other 14 attendees feel the same way. If you're a candidate, committee chair or treasurer, or have political ambitions of some kind, and would like to find out whether a seminar is scheduled for your area, just click here. I recommend it. After all, as Mike Sullivan would put it, who wants their name next to his in the newspaper?

The bill, not the whole bill, but still a good bill

This is a half-a-loaf story, admittedly. But it is a story that shows how the Sierra Club is working to promote environmental and climate justice in a very practical way.

In 2010 I drafted a bill with two major goals: to end the use of coal in our commonwealth and to help the communities and workers affected by any coal-plant closures. The bill's name is the Act to Phase Out Coal Burning in Massachusetts and its number is H. 2612. As well as enjoying the active support of the Sierra Club of Massachusetts, it won the endorsement of the Massachusetts Democratic Party's state convention (thanks to PDA), and of two Green party chapters. Earlier this month, after making a significant amendment, the Joint Committee on Telecommunications, Utilities, and Energy (TUE) voted 15:1 in favor of the bill, which means it now goes to the House Committee on Ways and Means.

Let me explain the significance of the amendment. Originally, H. 2612 gave utilities a simple choice: By 2020 they must either repower their coal-fired power stations to cleaner energy or retire them. In other words, convert or close down. To alleviate any negative effects, such as job layoffs, the Sierra Club proposed a Community Repowering Fund to pay for retraining and other forms of practical support. But only half the bill emerged from TUE. Which part fell to the cutting-room floor? The coal phase-out part.

Losing half the bill is disappointing, so I am hardly doing cartwheels and scattering rose petals. But legislating an end to coal-burning in Massachusetts is now almost unnecessary. Economics is already taking care of it. Most of the electricity we use in this commonwealth comes from natural gas. Although it is a fossil fuel, natural gas is arguably somewhat less harmful than coal in terms of CO2 emissions (methane is another story) and because fracking technology makes natural gas so much cheaper, coal's days are numbered. As a result, our state now hosts only three coal-fired power stations, namely Brayton Point in Somerset, Salem Harbor, and Mount Tom in Holyoke. Salem Harbor is scheduled to close in 2014, and Mount Tom also seems to be winding down. Holyoke's mayor, AlexMorse, has appointed a committee to look into alternative uses for the Mount Tom site.


Even though coal-burning is on the way out, it would have been much better to have a timetable with a date certain in the form of the 2020 phase-out deadline. Nevertheless, the survival of the Community Repowering Fund provision makes the bill -- even minus the phase-out provision -- worthy of support.

Underlying the idea of the fund is a simple principle, one that appears in the preamble to the Constitution of the Commonwealth of Massachusetts: "The body politic... is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." Rather than letting employees bear the whole cost of coal's decline, the Sierra Club bill would spread the cost through society as a whole in a practical application of this constitutional principle of governing for the common good. Pushing the whole cost of closure onto the communities that have already borne a disproportionate burden by hosting coal-fired power stations would not be fair. All of us reaped the benefits of cheap coal-powered electricity and we should all pay -- through taxes -- our fair share when coal plants close.

Coal-company propagandists like to draw false battle lines, pitching workers against environmentalists. This bill demonstrates their mendacity. By advocating for the Community Repowering Fund, the nation's leading environmental organization offers clear proof that it is looking out for workers' interests. If H. 2612 wins the approval of House Ways and Means it stands a very good chance of becoming law and, if it does, former coal-plant employees and their families, friends, and neighbors in Salem and Holyoke should remember that the organization that led the fight was the Sierra Club of Massachusetts.

from coal to clean energy

Does "any person" exclude coworkers?

Does the term “any person” mean exactly that, or does it mean “any person in a supervisory capacity or with managerial authority”? The former, said the United States District Court for the District of Massachusetts last month in Martin v. Irwin Industrial Tool Company.

But a recent post in Business West suggests that the court’s interpretation of the Massachusetts anti-discrimination statute was wrong. At issue are two paragraphs within section 4 of chapter 151B, which makes it unlawful for “any person” to discriminate or to “coerce, intimidate, threaten, or interfere with” another person in the enjoyment of their rights under the statute. The court’s supposed error was holding that the statute allows victims of sexual harassment to sue the harasser as an individual, even when that individual is not a supervisor. According to the post, the way the court construed the term “person” defies the intent of the Legislature and offends public policy. I disagree.

With all due respect to the attorney who wrote the post, the court’s decision is the only reasonable construction of the clear, unambiguous language of the statute. It is also consistent with the way the Massachusetts Commission Against Discrimination (MCAD) has been applying the law since 1994. The MCAD’s Sexual Harassment at Work Guidelines make this clear, citing the Commission’s 1994 decision in Carney v. Town of Falmouth Police Department.  If this was not how the Legislature intended the MCAD to apply the term “person” in the context of liability for sexual harassment, it has had 18 years to correct the situation.

As for the suggestion that in the context of sexual harassment claims “person” only means employer or an agent acting on behalf of the employer, the court pointed out that several provisions of the the statute make a distinction between individuals and employers. Paragraphs 9, 9A and 11A, for example, apply to “an employer” whereas paragraphs 4 and 4A — at issue in Martin — apply to “any person.” Excluding ordinary coworkers from the scope of paragraphs 4 and 4A would be reading into the statute an exception that the Legislature did not intend to make.

With regard to public policy, there is nothing novel, misguided, or unsettling about the way the United States District Court construed the term “person” in this case. To the contrary, over many years employers and employees alike in Massachusetts have reasonably relied on the MCAD’s consistent rulings on this issue. If the US District Court had departed from the MCAD’s decisions the outcome would have been confusion and uncertainty, neither of which constitute sound public policy.

Short video about workers' rights in Massachusetts

Massachusetts is an "at will" employment state, but what does that mean in practice? Are employers free to fire workers for any reason at all? For a short video about some of the key exceptions to the at-will rule, click here or on the image below. 

Commission sends ACTA question to court

Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the treaties governing the European Union, in particular the Charter of Fundamental Rights? 

That is the question before the Union’s highest court. John Clancy, the spokesperson for Trade Commissioner Karel De Gucht, issued a press release dated May 11 confirming that the European Commission has referred the issue of ACTA’s legality to the European Court of Justice. Under articles 207 and 218 of the EU Treaty, ACTA needs the consent of the European Parliament as well as ratification by the Member States. But ACTA simply does not have the parliamentary votes to pass.

The Greens are unequivocally against the measure, as are the Progressive Alliance (the Socialist group), the Liberals, and the United/Nordic Green Left. There are 736 members of the European Parliament (MEPs)  so the treaty would need 368 votes in order to move on to state-by-state ratification. With the anti-ACTA forces comprising four of the political groups that account for more than 368 MEPs, and only an up-or-down vote available at this stage, ACTA seems to be effectively dead. Sending the matter to the court seems like an attempt to keep it on life support, which is why the Socialist group welcomed an earlier decision by a parliamentary committee not to do so. For a video of the group's leader, Hannes Swoboda, explaining why the Parliament should treat the future of ACTA as a political matter not a legal one, click here.  According to the Greens, the Commission's referral to the court may bring "an important dimension to clarifying the legality o the document" but will not interfere with Parliament's timetable, with a vote on ACTA happening very soon.

Commissioner Karel De Gucht

When is teaching inherently religious?

Is the teaching of Hebrew inherently religious? That is the key question in a discrimination case currently before the highest state court in Massachusetts. On May 8, the Supreme Judicial Court heard arguments in Temple Emanuel of Newton v. MCAD, which started in August 2008 when a teacher filed a charge of age-based discrimination (hostile work environment and discriminatory discharge) with the Massachusetts Commission Against Discrimination (MCAD).

In most cases, after the MCAD has served the complaint the respondent (defendant) submits a document called a position statement, after which the complainant (plaintiff) offers a rebuttal. Then, when the papers from both sides are in, the MCAD holds an investigative conference. But this case is different.

After receiving the complaint, the respondent, Temple Emanuel, went to superior court for an injunction claiming that an MCAD investigation would violate its right to the free exercise of religion under the First Amendment. The argument succeeded, and the superior court declared that the MCAD lacked subject matter jurisdiction and permanently enjoined it from investigating the complaint. Following the MCAD's appeal, the Supreme Judicial Court took up the case.

In its brief, the MCAD points out that religious institutions are only exempt from anti-discrimination laws in a very narrow set of circumstances, such as when the employee in question has a "ministerial" function.  Teachers at parochial schools do not usually fall into this category.  While the Temple does not dispute this, it contends that the duties of all teachers at its school are "primarily religious" because they provide the students "with educational and religious instruction in all aspects of Conservative Judaism."  In instructing her students in Hebrew at this particular school, the complainant was doing something inherently "religious in nature," the Temple argues. In essence, the respondent contends that teaching at the school cannot be, as a matter of definition, secular.

That argument persuaded the Superior Court, which held that learning Hebrew was "part and parcel of the students' study of Jewish prayer, texts, and rituals" thereby rendering the teacher's job "ministerial." Will the SJC agree? If so, the case will have implications for employees at many other religious schools in the commonwealth. We shall have to wait and see.