Newspaper Can Be Sued For Selling Photo of Car Crash – Robert A. Bertsche Quoted in Massachusetts Lawyers Weekly

Firm News · June 14, 2012

A newspaper in Western Massachusetts that ran a photo of a car crash in its publication, is now being sued after it offered to sell the photo and allow readers to buy mugs and t-shirts displaying the image.

While the newspaper is protected by the First Amendment for running the photo alongside the article about the accident, the question at hand is whether selling the photo for commercial purposes – disconnected from the legitimate news article – is a violation of the crash victim’s privacy. The victim’s hand could be seen in the photo as a signal to his family that he was still alive.

Rob Bertsche, a firm partner and co-chair of Prince Lobel’s Media Law Practice Group, notes that “this is an example of how the line between editorial and commercial use has gotten more and more blurry.” Other issues include whether there is a “legitimate public interest in selling” the photo and whether or not any merchandise was actually sold.