The Definition of Chutzpah?

By Zachary Edelman

The prospect of having a second, third or fourth home is alien to many of us on tight budgets. But get this, there are gorgeous mansions sitting on acres upon acres of land all across the country that sit furnished, vacant and vulnerable for months of the year.

Some teenagers must have wondered what it would be like see life as Jay Gatsby, even if just for a few hours, because on August 31 former NFL Lineman Brian Holloway, who was at his home in Lutz, Florida, was alerted to a party going on at his rural vacation home in the foothills of the Berkshire Mountains. And what a party it was. Walls inside the house were spray-painted, the floor was peed on, furniture was broken and personal possessions were stolen, causing up to $40,000 in damages.

For a country outraged over revelations that the NSA tracks our every move, we sure don’t make it difficult for the government (or anyone else) to see exactly what we are up to; we broadcast to the world our every moment via one social media site or another. The teens who ransacked Mr. Holloway’s home were no different, taking and posting and tweeting and Instagram-ing dozens of photos of themselves cavorting and drinking and drugging inside Mr. Holloway’s (extra) house.

Mr. Holloway was angry, as any homeowner in his situation would be, and created a website aggregating all the evidence of revelry that evening adding the partiers names to the tweets and pictures. Mr. Holloway, who has worked with the substance abuse prevention program D.A.R.E., lists one main objective on his website– to turn the incident into a force for good by allowing the still impressionable youths to redeem themselves and reject the path of drinking, drugs, crime and violence.

Mr. Holloway must have suffered a concussion or two during his NFL career, because he is delusional if he thinks teenagers who break into a vacant house to party are going to change their ways as the result of a website. His invitation to the hellions to help him clean his house fell on mostly deaf ears; only five teens — of nearly 300 –showed up to help him clean the mess.

If you’re thinking the kids didn’t show up because they were grounded, think again. In fact, their parents are mad – even livid. But not at them. At Mr. Holloway. The indignant parents have threatened to hurt Mr. Holloway; at the very least, they are threatening to sue. (Some people might call this the very definition of “chutzpah”). Reposting the photos and identifying the culprits, they say, could “ruin their kids’ college plans.”

Lots of reports out there, but no analysis of the merits of the potential lawsuits against Mr. Holloway.  LASIS investigates.

The Children’s Online Privacy Protection Act of 1998 requires website operators to obtain parental consent before allowing a child’s photo to be posted online. It also outlines responsibilities a website’s operator has to protect a child’s privacy online. Luckily for Mr. Holloway, the 1998 Act only covers children under the age of 13, and it is applied only to websites directed towards children. Further, though some news outlets voluntarily don’t publicize the names of minors accused of a crime, it is a misconception that they cannot; the Supreme Court has allowed the reporting of the names of minors since 1979.

Under copyright law, when it comes to photographs, you snap it, you own it. The owner of the photo has the right to display, copy, use, produce, and distribute it.

BUT if a photo is taken without a subject’s consent, the owner of the photo can be stopped from doing what he wants with it for any of three reasons: 1) invasion of privacy; 2) violation of right of publicity; or 3) defamation.

Invasion of privacy can occur if you are portrayed falsely and in a highly offensive manner or if someone intrudes and snaps a shot of you when you had a reasonable expectation of privacy (i.e., someone hiding in your bedroom closet). The photos Mr. Holloway posted were arguably offensive, sure, but the teens posted the images themselves. Some of the photos were even “selfies.” It would be hard to argue that any of these sweet children had an expectation of privacy that evening.

The right of publicity allows the subject of the photo to get paid for the commercial use of her name, likeness or voice. Mr. Holloway is not looking to profit from the pictures posted on his website, though he is asking for donations to cover the costs of repairing his house. A court will not find that he is violating the teens’ right to publicity.

A website defames if it creates a false impression of someone and injures his reputation. While the pictures posted on Mr. Holloway’s site injure the teens’ reputations, (dancing drunk on tables is not a great look on interviews) the pictures do not create a false impression of the partiers. Truth is an absolute defense to defamation.

The case becomes more complex in terms of who actually owns the posted pictures. In general, as noted earlier, the person who actually snaps the shot, owns the shot.

But once a photographer posts a picture to a social media site everything changes. The Terms of Service for Facebook and Twitter basically state that once a photo is posted on their sites, the social networks are given free rein to do whatever it pleases with the image, including distributing and making a profit off it.

Things are different on Twitpic, Twitter’s phone sharing site.

 Twitpic’s terms state that:

“All content uploaded to Twitpic is copyright of the] the respective owners. The owners retain full rights to distribute their own work without prior consent from Twitpic. It is not acceptable to copy or save another user’s content from Twitpic and upload to other sites for redistribution and dissemination.”

The harshest punishment listed in their terms is termination of the user’s service. At worst then, Mr. Holloway can be banned from Twitpic. We don’t imagine he’s too worried about it at the moment, considering he has a house that’s in shambles and in need of repair.

Additionally, Mr. Holloway likely infringed on the copyright protections afforded of the pictures owners under Twitpic’s terms of service when he reposted their photos to his site. The parents could seek civil remedies, but they would be foolish to try to pursue monetary damages from Mr. Holloway; they’d lose in a countersuit for the damages to his house, we’re sure.

Most of the parents would likely just want their children’s pictures taken down from Mr. Holloway’s site and should he receive a cease and desist order he would be wise to do just that.

Mr. Holloway hasn’t decided whether he’ll press charges against the teenagers, but that could change if the parents sue him. Either way, the kids will likely go on living their partying lifestyle as they “beat on, boats against the current, borne back ceaselessly into the past.”


Comments Off on The Definition of Chutzpah?

Comments are closed.