# Newspaper publishes pic of psychopath holding obvious brand-name beer: can they be sued to remove it **URL:** \ **Category:** Factual Questions\ **Created:** [June 5, 2012, 5:13pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177 "2012-06-05T17:13:12Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [June 5, 2012, 5:13pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/1 "2012-06-05T17:13:12Z")
Canadian psychopath [Luka Magnotta](http://www.thestar.com/business/article/1206132--luka-magnotta-sips-blue-labatt-sees-red?bn=1) is certainly getting his fifteen minutes. The link is to an article and photo which shows him holding the popular Canadian beer Labatt Blue. The Labatt company is distressed, of course, to have its product associated with the likes of Magnotta and have threatened legal action to compel the Gazette to remove it. I recognize that Canadian law may well differ from that in the USA or UK or wherever. Still, does Labatt have a leg to stand on? (I see what I did there :eek:) ETA: _Alleged_ psychopath ---
**Author:** ![Omar\_Little](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/omar_little/32/269_2.png) [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)\ **Post date:** [June 5, 2012, 5:23pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/2 "2012-06-05T17:23:28Z")
I’m not sure a company can sue to have their product removed from a factual photograph. It’s not like Magnotta is trying to make money off the Lablatt brand. He’s just a consumer using their product. That’s kind of what Lablatt wants…people to use their products. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [June 5, 2012, 5:29pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/3 "2012-06-05T17:29:20Z")
> [@Omar\_Little](#): > > I’m not sure a company can sue to have their product removed from a factual photograph. It’s not like Magnotta is trying to make money off the Lablatt brand. He’s just a consumer using their product. That’s kind of what Lablatt wants…people to use their products. Is he one of the recent cohort of cannibals? I can only imagine the tag lines. I don’t know Canadian law, but wouldn’t a successful action of this nature (note: “this nature” being tempered by info assumed through an Internet post) be wholly unworkable? Any published news photograph that contained trademarked or copyrighted images would be subject to scrutiny and retouching. I understand their consternation, but I hope their legal department is writing letters and whatnot not with the hope of actually prompting action but to generate a PR response. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [June 5, 2012, 5:31pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/4 "2012-06-05T17:31:38Z")
It’s newsworthy, it’s fair use. (The paper got the picture from Facebook - that’s a different discussion…) There is no intent to malign by the paper. they are just reporting facts. Suing a newspaper over something like this will probably create even more publicity you don’t want. Unless they deviously actually want the brand to be noticed… “when gay porn star [alleged] cannibals absolutely need to get that taste out of their mouth…they drink…” Maybe not. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 5, 2012, 5:43pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/5 "2012-06-05T17:43:17Z")
I don’t know the relevant law here, but they may not actually hope to get the photo edited - and I really cannot imagine any way a court could compel a news outlet to edit a photo just to protect a brand. It is possible that Labatt hopes the paper will bow to the threat of legal costs, and it’s also possible they’re just making a threat for public relations purposes. > [@KarlGauss](#): > > ETA: _Alleged_ psychopath Psychopath. I don’t think using the word “alleged” adds any kind of legal protection either. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [June 5, 2012, 5:48pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/6 "2012-06-05T17:48:13Z")
> [@Marley23](#): > > Psychopath. I don’t think using the word “alleged” adds any kind of legal protection either. After reading [this](http://news.nationalpost.com/2012/06/05/luka-rocco-magnotta-jun-lin/) (i.e. the right hand column), I would tend to agree that the word ‘alleged’ is not required. NB - link is to _extremely_ graphic text but no pics ---
**Author:** ![johnpost](https://avatars.discourse-cdn.com/v4/letter/j/f17d59/32.png) [@johnpost](https://boards.straightdope.com/u/johnpost)\ **Post date:** [June 5, 2012, 6:25pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/7 "2012-06-05T18:25:41Z")
they will be using the photo with their new ad campaign. “have one while enjoying your friends”. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [June 5, 2012, 6:52pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/8 "2012-06-05T18:52:20Z")
In the US, the first amendment trumps trademark law. This means that if something is being used in a news story, they have a right to do so. If you use a trademark in a piece of fiction, you’re in the clear (and will only get a letter – and nothing more – if you used it incorrectly: “The murderer took a kleenex to wipe up the blood” would get a complaint, while “The murderer used a Kleenex tissue to wipe up the blood” would not). ---
**Author:** ![postcards](https://avatars.discourse-cdn.com/v4/letter/p/8e8cbc/32.png) [@postcards](https://boards.straightdope.com/u/postcards)\ **Post date:** [June 5, 2012, 7:16pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/9 "2012-06-05T19:16:16Z")
> [@Rhythmdvl](#): > > Any published news photograph that contained trademarked or copyrighted images would be subject to scrutiny and retouching. Actually, retouching news photographs is what gets photographers fired. [Cite.](retouching news photographs) ---
**Author:** ![hogarth](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hogarth/32/1773_2.png) [@hogarth](https://boards.straightdope.com/u/hogarth)\ **Post date:** [June 5, 2012, 7:26pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/10 "2012-06-05T19:26:44Z")
Maybe Magnotta Wines can get the courts to change his name as well. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 5, 2012, 8:31pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/11 "2012-06-05T20:31:50Z")
> [@md2000](#): > > It’s newsworthy, it’s fair use. (The paper got the picture from Facebook - that’s a different discussion…) I sort of get what you’re saying here, but Fair Use and Facebook sourcing need to be part of the same discussion. It’s pretty clear that, in the US at least, there would be no obligation on the part of the paper or the owner of the photograph to remove the beer bottle from a photograph used for news purposes. But it seems to me that any discussion of Fair Use here needs to actually look at where the image comes from, and the uses to which it’s being put. It seems to me that, if the person who took the photo hasn’t given permission for it to be used by the news agency, then the news outlet could well be violating the photographer’s copyright. As [this journalism professor](http://digital.community-journalism.net/askanexpert/answers/can-i-use-facebook-photo-news-story-with) notes, grabbing someone’s photo from Facebook for use in a for-profit media outlet doesn’t seem to adhere to the requirements for Fair Use in the US: > [@](#): > > A use for news purposes would meet the first threshold for review under fair use guidelines, but under the four-part balancing test applied by courts in looking at fair use, I don’t see how any one favors the republisher: The use is for-profit, the entire photo is used, it most likely is a significant element of the news story, and it harms the market for the original copyright owner by giving away for free what the owner could legally sell. Also, about 18 months ago a court in New York’s Southern District [ruled](http://observer.com/2010/12/hey-agence-francepress-hands-off-my-blizzard-twitpics/) that a copyright infringement case could proceed against Agence France Presse for nicking pictures from a social media site (in this case, TwitPic) and using and selling them without the author’s permission. As Eric Goldman [noted](http://blog.ericgoldman.org/archives/2010/12/court_rejects_a.htm) at the time: > [@](#): > > This case is a clusterf\*\*k. AFP made numerous mistakes that resulted in infringing photos being injected into the news coverage of a major world crisis, which inadvertently tainted a variety of downstream media properties–all of whom, due to copyright’s strict liability standard, are likely to write checks to Morel. AFP and its unfortunate partners should end their likely-futile and sometimes-silly defense and settle up with Morel so that everyone can move on to more productive endeavors. So, according to Goldman, not only was AFP liable for taking and distributing the photos, but the media outlets who bought them from AFP, presumably in good faith, are also liable for claims made by the copyright owner. I harp on about this because media outlets grabbing Facebook and other social media photos and using them, clearly without permission, has become incredibly common over the past decade, and i find it indicative of increasing laziness among journalists, as well as of a sensationalist approach. It is also part of a broader, ethically-dubious notion that just because something is on the internet, you can take it and do whatever you want with it. As the journalism professor, linked above, says: > [@](#): > > Onto the ethical ramifications here. While facebook users may not have any privacy rights guaranteed by the law, they do have reasonable belief that the service is to share their information with friends. As a journalist, would you have any ethical issues with rifling through the photo album of a citizen after he or she had been arrested or implicated in some huge news? Consider the following from the SPJ Code of Ethics: > > “Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone’s privacy.” > > And: > > “Show good taste. Avoid pandering to lurid curiosity.” > > Consider the photos of Ashley Dupre in a bikini. Is there overriding public need for this information? Or is this pandering to lurid curiosity? > > In short, facebook photos aren’t posted with the intent of becoming public domain and usable for any purpose, news or otherwise. Journalists should know better. And for those who don’t, some day, the hammer will come down. I tell my students, “don’t let this be you.” I offer the same advice to journalists everywhere. It’s possible that there are other court decisions regarding the taking of online pictures by media outlets, but while there are aspects of Constitutional and Copyright law that give some particular protections to journalists and to news stories, as far as i’m aware a for-profit media outlet is not exempt from copyright law. I’m not a lawyer, though, and if i’m wrong about this, i’d be happy to be correct by someone who knows the law better. TLDR version: i would argue that Labatt’s has no case here, but the person who actually took the photo might well have a case for having it removed and/or being compensated for its use. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [June 6, 2012, 12:46am UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/12 "2012-06-06T00:46:27Z")
Yes, but… The obligation is on the copyright holder to request a takedown or cease-and-desist. The photographer or Magnotto himself, depending on where the photo came from, has to make the request. Odds of him getting a lawyer to take a civil case in Montreal from a Berlin jail? Assuming he wants to stop publicity, given what we hear of his character… Labatts can scream all they want, but it’s not their right to tell the newspaper to take down the photo, nor do they have standing to sue about that issue. As the business report said this afternoon, in the morning the photo was very difficult to find; by the time this made headlines across the country, ever major news outlet in Canada was reproducing the picture. The business reporter said it was a case of Labatts shooting themselves in the foot. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 6, 2012, 1:06am UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/13 "2012-06-06T01:06:28Z")
> [@md2000](#): > > Yes, but… > > The obligation is on the copyright holder to request a takedown or cease-and-desist. The photographer or Magnotto himself, depending on where the photo came from, has to make the request. Never suggested otherwise. Doesn’t really change whether or not the copyright infringement occurred, though, and nor does it change the questionable journalistic ethics of taking someone else’s images for your own news story just because you can’t get a photo of your own. I guess, if you like, you can look at copyright infringement in some sort of “If a tree falls in the forest, and nobody hears…” philosophical sense, whereby violations only occur if the copyright holder finds out and takes legal action, but that strikes me as a pretty pointless exercise. I think this taking of images by the media is done precisely because they know that very few Facebook or other social media users are going to pursue the issue. It’s also incredibly hypocritical, given how much effort media companies themselves take to pursue people who infringe on their copyright. ---
**Author:** ![Manduck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manduck/32/256_2.png) [@Manduck](https://boards.straightdope.com/u/Manduck)\ **Post date:** [June 6, 2012, 2:15am UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/14 "2012-06-06T02:15:18Z")
Labatt has withdrawn their demand: [CityNews](http://www.680news.com/news/national/article/370035--labatt-no-longer-demanding-luka-rocco-magnotta-s-photo-be-removed-from-newspaper) Maybe they consulted a better lawyer, or maybe they didn’t like the kind of publicity they were getting for being such idiots. ---
**Author:** ![Larry\_Mudd](https://avatars.discourse-cdn.com/v4/letter/l/f14d63/32.png) [@Larry\_Mudd](https://boards.straightdope.com/u/Larry_Mudd)\ **Post date:** [June 6, 2012, 2:32am UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/15 "2012-06-06T02:32:57Z")
Meanwhile, over at Alexander Keith’s, executives are thrilled that the good people over at Labatt are in such a hurry to take the attention off the [Child Molester](http://www.youtube.com/watch?v=YPMAm3Un8bk)’s [Beer](http://www.youtube.com/watch?v=G14i7ickh1w). ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 6, 2012, 10:46am UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/16 "2012-06-06T10:46:40Z")
> [@RealityChuck](#): > > In the US, the first amendment trumps trademark law. This means that if something is being used in a news story, they have a right to do so. This is not a correct statement of law. The real issue is that this is not trademark infringement. > [@](#): > > If you use a trademark in a piece of fiction, you’re in the clear (and will only get a letter – and nothing more – if you used it incorrectly: “The murderer took a kleenex to wipe up the blood” would get a complaint, while “The murderer used a Kleenex tissue to wipe up the blood” would not). The word “incorrectly” is not correct in this context. ---
**Author:** ![Francis\_Vaughan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/francis_vaughan/32/3093_2.png) [@Francis\_Vaughan](https://boards.straightdope.com/u/Francis_Vaughan)\ **Post date:** [June 6, 2012, 11:16am UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/17 "2012-06-06T11:16:41Z")
One suspects that the publicity Labatt has received about asking for the takedown is all that they wanted, and what they received. Anyone who cares hears that they are peeved enough to start talking lawyers, and that eventually they can’t stop it. That makes for a much better outcome than just disappearing the pic, or applying an obvious blur over the bottle’s image. (I doubt applying an obvious blur would count as image tampering - so long as it is clear to the viewer that the blur is there to obscure, and did not form part of the original image.) The usual leverage is to remind the paper/magazine about advertising contracts. If they don’t have any, well, not much leverage. ---
**Author:** ![Colophon](https://avatars.discourse-cdn.com/v4/letter/c/f05b48/32.png) [@Colophon](https://boards.straightdope.com/u/Colophon)\ **Post date:** [June 6, 2012, 11:22am UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/18 "2012-06-06T11:22:18Z")
> [@Acsenray](#): > > This is not a correct statement of law. The real issue is that this is not trademark infringement. > > The word “incorrectly” is not correct in this context. Why not? Kleenex is still a protected brand name, is it not? ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [June 6, 2012, 4:16pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/19 "2012-06-06T16:16:07Z")
Kleenex is a trademarked brand name. That means nobody else can sell tissues and call them “Kleenex”. That doesn’t mean I can’t say “Pass me a kleenex”, or write a story where a character says “Pass me a kleenex”. The trademark doesn’t regulate how I am supposed to, or allowed to, use the word “kleenex” in everyday speech or news stories or books or movies. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 6, 2012, 5:52pm UTC](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177/20 "2012-06-06T17:52:51Z")
Exactly. Adobe has rules on its site for how its trademarked names should be used. Some [examples](http://www.adobe.com/misc/trade.html) include: > [@](#): > > Correct: The image was enhanced using Adobe® Photoshop® software. > Incorrect: The image was photoshopped > > Correct: Those who use Adobe® Photoshop® software to manipulate images as a hobby see their work as an art form. > Incorrect: A photoshopper sees his hobby as an art form. > Incorrect: My hobby is photoshopping. > > Correct: The image was manipulated using Adobe® Photoshop® software. > Incorrect: The image was manipulated using Photoshop. I recognize why Adobe puts up a page like this, but if they think i’m going to talk about how i “enhance my photographs using Adobe® Photoshop® software,” they are kidding themselves. [Next page](https://boards.straightdope.com/t/newspaper-publishes-pic-of-psychopath-holding-obvious-brand-name-beer-can-they-be-sued-to-remove-it/624177.md?page=2)