August 10, 2012
Nightmare scenario involving contract
I try to avoid reading the Yahoo stories with the headlines that try so hard to pique your interest, but this one was sent to me by someone who knew I'd be interested in the contracts-related issues. Maryann Sahoury is suing a production company, Meredith Corp., after she particpated in an instructional breast feeding video that was used by a third party to create pornography. Sahoury participated in the video to help other moms who might have trouble breastfeeding their children. She was told by the producer that only her first name would be used in the video. After the filming and while juggling her baby, she was asked to sign a "piece of paper" which she did without reading it.
When she later conducted a search of her name, she found numerous links to pornographic sites and found one that showed her breastfeeding video spliced with another pornographic one containing a woman with similar features. Even a search of her baby's name turned up links to pornographic sites and videos. Her lawsuit is not claiming that the production company is responsible for creating the pornographic spliced video; rather her lawsuit states that the production company posted the breastfeeding video on YouTube and used her full name, when it represented it would only post it on Parents TV and cable television and use her first name.
The production company, Meredith, said that Sahoury had signed a release that allowed the company to use her "image, voice and name."
I find the company's response infuriating. Any dummy knows that posting a video anywhere on the internet can be misused - especially when the video contains a woman's breast. It doesn't sound like Sahoury is trying to make money from this - the article states that she is seeking only an order prohibiting the defendants from using the video featuring her and her daughter for any purpose (and attorney fees).
This situation raises a host of legal and policy related issues, but I'm going to try to focus on the contract ones. The first issue that comes to mind is whether the release is even enforceable. Was there consideration for the release given that it was signed after filming ended. (She wasn't paid for her participation in the filming). I also wonder whether there might be an interpretation issue that could work in her favor - "image, voice and name," - does that mean first name or first and last name? If nothing more is stated in the release, the verbal assurance that only her first name would be used should be highly relevant to interpret the meaning of the word "name". Furthermore, did the release state in what medium or outlet the video could be used? If it wasn't worded sufficiently broadly, the verbal assurance that it would only be posted on Youtube should limit the scope of the license she granted. In addition, was there an integration clause in the event to allow oral statements (and get around the parol evidence rule). Along the same lines, was the assurance that it would be posted only on Parents TV and cable television given before or after she signed the release?
I know I'm missing other issues so please feel free to add your thoughts in the comments.
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First, I agree with you that the company's response is infuriating, and I can imagine no reason why they would do anything other than apologize profusely and remove the video.
Integration clause or no, I think the word "name" is sufficiently ambiguous that the parol evidence regarding the promise that only her first name would be used should be admissible.
That said, isn't plaintiff trying to unbake a cake at this point? The images are out there and this lawsuit will not make them go away.
Posted by: Jeremy Telman | Aug 10, 2012 9:14:18 AM
I think the lawsuit does several things (besides make the production company more careful in the future). It helps clear up her reputation so that those who might search her name realize that she is not the person in the porn video (i.e. the lawsuit pops up and not just the porn images so the searcher realizes what the real deal is); the removal of the video would likely contain the damage so other porn producers don't find it and make more porn videos; it punishes the producers so that they don't benefit from their sloppy ways. Finally, she is probably feeling a bit exploited and powerless (ya think?) It probably feels different to have your breast exposed and baby presented in a parental instruction video versus on Youtube - and then on porn sites. So this is a way to gain some control over an image that has gone out of control.
Posted by: Nancy | Aug 10, 2012 9:27:12 AM
You are probably right about her motivations, but here's the thing:
I often wonder why people who have been subjected to public embarrassment bring lawsuits seeking a remedy for that embarrassment. I recall a guy who had his genitals scalded in a shower and then ended up having Rudy Giuliani on the jury that found for the defendant. http://www.nytimes.com/1999/09/08/nyregion/mayor-is-praised-as-just-another-juror.html
Now not only does he have scalded genitals, everyone knows that he has scalded genitals. And he has a pretty lousy lawyer who should have moved heaven and earth to keep Giuliani off of that jury.
That case was not just about embarrassment, but this case is really all about publicity (by which I mean "publicness"). The fact that we are writing about this case does little to increase plaintiff's exposure, but there are also stories about her on major news networks and HuffPo. If people are reading about this woman on HuffPo or Yahoo!, isn't there a danger that a certain percentage of those readers, who otherwise would not be googling her at all, are now going to do so to see if they can find how you splice an instructional video of breastfeeding into a porn movie? In other words, even if you are right about the potential positive externalities that might emerge from this lawsuit, hasn't plaintiff just made her own life exponentially worse than it already was by calling attention to facts that would otherwise have been very difficult to discover?
I ask not because I question her motives but because I wonder why she is not seeking damages, including punitive damages, for the reputational harms she has suffered.
In addition, it occurs to me that regardless of her having signed a waiver allowing Meredith Corp. to use her "voice, image and name," where do they get off using her baby's name?
Posted by: Jeremy Telman | Aug 10, 2012 9:52:06 AM
Thanks for your comment. I think it's one thing to have everyone know you have scalded genitals and quite another to have everyone know you breastfed your baby in order to help other breastfeeding mothers - in other words, the comparison isn't quite right. The harm here is that somebody might google her and find the pornographic images - and quietly think it is her. The publicity created by the lawsuit works in her favor; what's important is that people googling her (e.g. her daughter's friends' parents) not think she made these pornographic videos. This lawsuit clarifies matters. It also raises awareness so that anyone who might think about participating in any video, well, they might reconsider or at least get some assurances in writing.
Posted by: Nancy | Aug 10, 2012 7:01:12 PM