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BREAKING NEWS: Judge grants Temporary Restraining Order against USA Next in anti-gay anti-AARP ad lawsuit

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UPDATE: You can find key legal documents in this case online here.

There was news today in the $25 million lawsuit of a gay couple whose image was stolen by USA Next and used in a high-profile ad campaign attacking the AARP’s position on social security legislation.

In Washington, DC today, US District Judge Reggie Walton (an appointee of President Bush (41)) granted the gay couple’s request for a Temporary Restraining Order (TRO) against USA Next. The TRO requires USA Next to cease and desist from further use of the couple's photos for any purpose. This is a big deal because it means the judge has found that the guys have reasonable likelihood of winning their case, and he also said he could see how they could get damages.

Basically, the couple’s lawyer, Christopher Wolf (counsel with Proskauer Rose, LLP), argued that a TRO was necessary to stop USA Next from using the couple’s image for additional ads. USA Next’s lawyer would not promise that the image wouldn’t be used again. And USA Next’s ad consultant even said in an AP story last night that the gay couple was to blame for getting married!

USA Next’s lawyer, Robert Sparks, argued that there was no indication that the couple would be irreparably harmed if the TRO wasn’t granted (that’s part of the requirement for granting one).

Wolf responded that had USA Next come to the couple in advance, and offered them money in exchange for the couple signing a model’s release so their image could be used in this hateful campaign, the couple would have said NO, there’s NO amount of money you could offer. Thus, the damage from USANext running the ad again was incalculable – there is NO amount of money that could compensate them adequately as no amount of money would have led them to cooperate in the first place.

The first sign of trouble for USA Next, in my opinion, was when the judge said today “I can see how they [the couple] may be entitled to damages for the misappropriation of their images.” After a lot of back and forth between the attorneys, the judge retired to chambers, then came back. Here’s what he said:

  1. There’s no real case on point with regards to this fact pattern, but “it seems to me that an individual obviously does have a privacy right in their physical image.”
  2. He went on to say that there is no evidence that the plaintiff’s put themselves in a position to be photographed – meaning, they had to stand in line with everyone else in order to get their legal marriage at the courthouse. It wasn’t like they chose to be photographed, they were standing in line. (Wolf made an interesting comparison: If the judge had affirmatively chosen to put his wedding picture in the Washington Post “weddings” section, would that give Campbell Soup the right to put the judge’s now-public photo on a can of soup?)
  3. The judge went on to say that even if the couple had consented to the newspaper snapping a photo, did that mean that they were giving away their rights, so the image could be misappropriated by anybody?
  4. He continued, saying that USA Next used the photo “in a manner inconsistent with their [the couple’s] perspective on an issue.” “Clearly there was a misappropriation of their image…. The public does have an interest in an individual’s image not being misappropriated.”
  5. He said that the ad campaign was obviously “done for the purpose of bashing gay marriage…. It seems to me a misappropriation inconsistent with the desire of the plaintiffs” and “it is in fact an infringement of their privacy right.” The use of the photo by USA Next was “inconsistent with the desire of the plaintiffs” and the use “does cause harm.”
  6. He concluded that the harm in this case “does rise to the level of irreparable harm.”
  7. He then granted the TRO and ordered that a $500 bond be used to secure the TRO.
The next step is for the attorneys on both sides to figure out, with the judge’s law clerk, when they can meet again to try the case – they threw around a date at the end of March. Of course, USA Next could always decide that it wants to settle the case before it goes to court again.

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