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I paid a debt to the late husband of a woman who now owns the local hardware store. Without talking to me about the debt, she posted my photograph of me that she copied off my Facebook account. She put my name and that I owed a large amount of money and had not paid. The debt was paid to her late husband, there was never a signed contract or receipt: we made the deal with a handshake and settled the deal the same way with no paperwork.

Is it legal for her to post my photograph in her place of buisness defaming me?

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That post is probably illegal.

Because she is making false assertions about you (that are presumably damaging your reputation), she is likely liable for defamation.

Because she has copied a picture of you without authorization, she is likely liable for violating the copyright of whomever owns that picture. Commenters have suggested she might invoke a fair-use defense, but I would expect it to fail. The four fair-use factors are:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Both Plaintiff and Defendant are using using the photograph to identify the holder of an account -- a Facebook account in P's case, a business account in D's. D is using the photograph in connection with a profit-making enterprise, not for educational purposes, and her use is not transformative.

  2. The nature of the copyrighted work: Photography is a creative art at the core of copyright's purposes, generally entitled to thick protection. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074 (9th Cir. 2000) ("[P]hotography entails creative expression warranting copyright protection.")

  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: There is no indication that D took anything less than the entire photograph.

  4. The effect of the use upon the potential market for or value of the copyrighted work: The question is not only whether the defendant's use affected the actual market for the protected work, but whether many people doing the same thing would depress the potential market for the work. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (Courts must consider "whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market.") The potential market for the image is probably very small, but widespread unauthorized copies, publicly displayed, would undoubtedly depress whatever market exists.

So all four factors cut against the defendant. Fair use is a loser defense here.

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    I wouldn't use the term "illegal". It may be a tort which would permit a successful lawsuit, which is not quite ther same thing. – David Siegel Apr 24 at 15:46
  • I think both your factor 1 and factor 4 analysis here is optimistic, but there is no way to be sure unless a court rules. On factor 4 a court might well find that there is mno plausible potential market. – David Siegel Apr 24 at 20:31
  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Apr 30 at 20:31
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Defamation

To falsely state that you owe a debt when you have paid it is defamatory. However, to sue for defamation in the US (and most other places) one must establish that the statements are false. The question says that:

The debt was paid to her late husband, there was never a signed contract or receipt: we made the deal with a handshake and settled the deal the same way with no paperwork.

That would make the falsity of the statement that the debt is still owed quite hard to prove. Unless there was a witness or some other proof it would depend on your word alone, and a jury might not accept that.

You would almost certainly need a lawyer to file and pursue a defamation suit. Some lawyers specialize in such cases. Such a lawyer could advise on the specifics of such a case, and whether it would be worth the costs and fees which would need to be paid to pursue such a suit. One generally needs to prove that one's reputation has suffered actual harm to collect significant damages, as well as proving falsity.

Proof of Falsity

In The Plaintiff's Burden in Defamation: Awareness and Falsity by Marc A. Franklin and Daniel J. Bussel (William & Mary Law Review Vol 25 Issue 5, June 1984 it is said that:

... the plaintiff must establish the existence of a disprovable defamatory statement and must prove the falsity of that statement with convincing clarity. (* p. 835*)

Now, a wide range of statements that cannot be proved either true or false necessarily are absolutely protected. (p. 855)

In Wilson v. Scripps-Howard Broadcasting Co. 642 F.2d 371 (6th Cir.), cert. dismissed, 454 U.S. 1130 (1981).. the United States Court of Appeals for the Sixth Circuit concluded that certain constitutional principles announced by the Supreme Court required that the burden of proof be placed on the plaintiff. (p. 857 This was a private plaintiff case)

Although constitutional principles appear to require this shift in the burden of proof, reason and justice also dictate that the plaintiff should bear the risk of nonpersuasion on the central issue of the statement's truth or falsity. (p. 859)

although the defendant may contend in his motion for summary judgment that he has shown the truth of the statement conclusively, the defendant actually is arguing that he has shown conclusively that the plaintiff cannot establish the required element of falsity. See, e.g., Meiners v. Moriarity, 563 F.2d 343 (7th Cir. 1977). The defendant may have seized the initiative on the issue in order to avoid the trial, but this tactic does not affect the underlying conclusion that the risk of nonpersuasion is on the plaintiff. (p. 859)

Trial lawyers often have complained about the unfairness of having to demonstrate that a derogatory statement is untrue.134 Recognizing the difficulty of proving a negative, Roman law placed the burden of proof on the party who could prove the affirmative. What Roman law and current trial lawyers fail to recognize, however, is that not all negatives are difficult to prove. A detailed defamatory statement should be readily discreditable. In Gertz (418 U.S. at 326.), for example, the plaintiff was able to establish that he was not a "member of the 'Marxist League for Industrial Democracy. Modern discovery practices have also obviated much of the earlier concern about proving a negative. Furthermore, courts long have required plaintiffs to prove negatives in many other areas of the law

In short, when the plaintiff fails to prove that the allegedly defamatory statement is actually false, even though the defendant is unable to prove it true, the defendant will prevail, and no damages will be awarded.

Copyright

Now, as to the issue of the photograph. The image would be protected by copyright. If you took the photo, you would own the copyright. If some other person took the photo, that person would own the copyright unless they transferred the rights to you in writing.

Only the copyright owner or someone authorized by the owner can file a copyright lawsuit. In the US, the copyright must be registered before suit can be filed. There is a fee for registration.

Fair Use

The person sued might assert fair use of the image as a defense. this is always fact-based, there is no way to say for sure if a use is a fair use until a court makes a decision, but one can review the four fair-use factors in a given case.

The law on fair use is found in 17 USC 107 The four factors listed in the law are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

On the first factor, the use is neither commercial nor educational. It is not transformative. This probably leans slightly against fair use.

On the second factor, the image is not a news report or factual work like a textbook, but neither is it highly creative like a work of fiction or a work of fine art. This is probably neutral with regard to fair use.

On the third factor, presumably the whole image or a large part of it is being used. This would lean against fair use.

On the fourth factor, there probably is no significant market for the original image, so no harm is being done to the market. And if there were any market, the sort of posting described in the question would not harm it. This factor would lean in favor of fair use.

With some factors leaning each way, it is very hard to predict what a court would do with a fair use claim

Copyright Damages

17 USC 504 provides for damages in the case of a successful suit for copyright infringement. There are two main categories of damages:

  1. "actual damages and any additional profits of the infringer". If the photo was not being sold or otherwise earning money for the copyright owner, and the infringer was not making any money either, there would be no significant damages under this provision.
  2. "statutory damages". These can be as low as $200, or as high as $150,000. But under 17 USC 412 statutory damages for a published work are not available at all unless the work was registered before the infringement took place, or within three months after the work was fist published. Posting an image to social media would constitute publication.

DMCA Takedown

One could also send a DMCA takedown notice under 17 USC 512 to the web site displaying the image. This might work. Only the copyright holder or the holder's authorized agent can do this. If the image is physically posted in the store, this is not possible.

Cease and Desist Letter

One could send the person displaying the image and false information a cease and desist letter. This is, in effect, a threat to sue. It may cause the desired action, but it has not legal force if not followed up by an actual lawsuit.

Conclusion

None of the options for responding to the situation described in the question is guaranteed to work. All of them, except a takedown notice, would require upfront costs to be paid, and would as a practical matter demand that a lawyer with experience in the area be consulted.

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    I think falsity may be quite a bit easier to prove here than people are making it out to be. The debt was settled without paperwork, but so was it created. D deposes P, asking what evidence she has that a debt ever existed. She has none. D asks what evidence P has to dispute P's testimony that any possible debts are satisfied. She has none. Summary judgment for D on the question of falsity. – bdb484 Apr 24 at 17:36
  • @bdb484 See the added subsection of my answer on "Proof of Falsity" and the citations there. It does not appear to me that the scenario you describe would lead to a judgement for the plaintiff – David Siegel Apr 24 at 22:02
  • I'm not sure what in there changes the analysis. D can't survive Rule 56 unless there's a genuine dispute as to the falsity of her assertion. P has evidence on falsity; D has none. Summary judgment for P. What am I missing? – bdb484 Apr 25 at 0:04
  • @bdb484 P has no evidence of falsity beyond a bare assertion. D can make a similar assertion, There is a genuine issue for the trier of fact as to who to believe. The burden is on P to establish falsity, D can be totally silent on the issue and if P does not establish falsity there is no prima facie case. Falsity may not be presumed. Also, D may have internal records showing the debt but not showing payment. those are evidence, albeit not the strongest evidence. P has no way to know about such until discovery. Statements that cannot be proved true or false will not do. – David Siegel Apr 25 at 1:32
  • You misunderstand Rule 56's burden-shifting framework. If P presents any admissible evidence that she owes nothing -- including her "bare assertion" -- D may no longer be silent on the issue; she must come forward with admissible evidence to support her defense. Because D has only hearsay, she cannot survive Rule 56. Summary judgment for P. – bdb484 Apr 25 at 12:35
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Assuming it's a picture you took (eg: a selfie), your picture is protected by Copyright, and that means nobody can make copies of it, or publicly display it without your permission (eg: a license). By uploading it to Facebook you have licensed it to Facebook which, allows them (among other things) to display it to other users. But, as far as I'm aware, neither you, nor Facebook extends this, or any other license to other Facebook users. By making a copy of your picture she has violated section 106 (1) of Title 17 (aka Copyright Law of the United States). By publicly displaying it she has violated section 106 (5) of Title 17. By adding your name, and a false statement she may be violating section 106A (2) of Title 17.

The Facebook terms of Service prohibit Facebook users from doing anything which "infringes or violates someone else's rights, including their intellectual property rights". By infringing on your Copyright she has violated Facebook's terms of service.

Refs:

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  • For the copyright claim, wouldn't fair use apply to this use of the photograph? It seems like it certainly would if the statement weren't false, though I can't find any cases about use of a copyrighted image as part of a false statement about the copyright owner. – Ryan M Apr 24 at 8:58
  • Fair use might apply. And this answer neglects the issue of damages. For a photo with no commercial value, damages are likely to be small. See my answer. – David Siegel Apr 24 at 17:14
  • Isn't there still room to argue that anything you post on Facebook is presumed to be "licensed" for download and display, if not also printing, by anyone with access? If so, is there a bright line between lawful viewing and printing it for "private use" and taking that same copy to post it for public display (perhaps in violation of 17 USC § 106(5)) without further license when clearly your own intent was "public display" via Facebook? As for 106A(2), a Facebook photo is arguably not within the definition of a "work of visual art". 17 USC § 101 – Upnorth Apr 29 at 3:15

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