Nashville resident Adam Holland was participating in an arts class at Vanderbilt University for students with mental disabilities in 2004 when he proudly held up his artwork and posed for a picture.
Nearly a decade later, the photo of then-17-year-old Holland has gone viral on the Internet — and has frequently been altered to reflect defamatory images, according to a lawsuit filed in federal court.
Holland, and his parents Pamela and Bernard, filed suit against a Tampa, Fla., radio station, a Minnesota resident and the company behind an online “sign generator” for $18 million in damages.
The defendants in the case allegedly repurposed the photo of Holland, replacing his hand-drawn picture with derogatory phrases. The radio station, WHPT-FM, pictured Holland holding a sign with “Retarded News” written on it.
The program director for the station emailed a concerned reader, stating that the news wasn’t about “disabled individuals” but rather featured “odd stories” about “botched bank robberies and failed crimes.” The radio station, owned by media conglomerate Cox Media Group, removed the photo from its website.
But that was just the beginning of what the Hollands discovered.
According to the suit, they found a website, signgenerator.org, that featured Holland’s photo as part of a “Retarded Handicap Generator.” The website allowed users to add their own text in place of Holland’s artwork and download the image for a fee, the lawsuit claims.
Russell LaLevee, of Spring Park, Minn., posted Holland’s picture on the image hosting site Flickr, along with a sexual reference. As of Tuesday, the photo had more than 31,000 views. LaLevee, who is a realtor in the Minneapolis area, added an allegedly defamatory — and false — comment below the photo.
When reached by phone, LaLevee told The City Paper that he wasn’t aware of the lawsuit and added that the photo was a joke. The photo was removed from the Flickr site as of Tuesday afternoon.
But the Hollands are taking it seriously.
“The Defendants... are liable to the Plaintiffs for compensatory damages arising out of their actions in displaying to the world deceptive, degrading, false, indecent, insulting and defamatory images,” the lawsuit alleges.
The suit cites the Tennessee Personal Rights Act, false light invasion of privacy, misappropriation of likeness and image, intentional infliction of emotional distress and defamation. The Hollands also call for injunctive relief, preventing the defendants from further publication and distribution of the images.
Holland’s attorney, Larry Crain, couldn’t immediately be reached by The City Paper.
At this year’s South by Southwest festival and conference in Austin, Texas, attendees had the opportunity to meet a couple of Internet sensations: Grumpy Cat and Scumbag Steve. These aren’t music artists or comedy acts who went viral thanks to social media — they were the unwilling subjects of Internet “memes.”
The photo of Grumpy Cat’s disgruntled puss has been repurposed thousands of times with users adding their own text of the kitty dismissing positive notions. Scumbag Steve, who’s real name is Blake Boston, also saw his image go viral, shared by millions of users adding their own less-than-flattering text to the photo.
In the case of those two “memes,” sudden popularity turned into profits and recognition. Grumpy Cat (or at least her handlers) sells merchandise online and has a book scheduled for release in October. Boston released a rap song embracing his moniker. The “Scumbag Steve Overture” has more than 2.3 million views on YouTube.
But legal questions still remain over cases like Holland’s, when thousands of users defame and share a person’s likeness.
“It’s difficult to square the interest that we have in not becoming an overnight celebrity with the rights of everyone in America being able to express themselves freely,” said Woodrow Hartzog, an assistant professor at the Cumberland School of Law at Samford University.
“The downside of being able to harness the power of crowds is that individuals that did nothing to seek any kind of publicity can become the subject of all of the cruelness that exists on the Internet. We don’t really have a good [legal] mechanism for combating that cruelness.”
Hartzog, who teaches about the intersection between law, privacy and online communication, said that cases like Holland’s can be tough to win.
“The torts that traditionally protected individuals against harmful use of depictions and photos are largely ineffective today,” Hartzog said. “They are really difficult to win at trial because it’s hard to prove things like damages — and the First Amendment has really pulled back on the scope of many of these torts.”
However, Hartzog said the case could prevail on some of the claims if a court determines that false statements of fact harmed Holland’s reputation.
“The fact of the matter is that people are defamed in actionable ways on the Internet all the time, but the cost involved in bringing a defamation lawsuit is so great most people simply don’t act on it,” Hartzog said.
The case also serves as good reminder that if a depiction is found to be libelous, other people who pass the photo along could be found liable despite the image’s pervasiveness, Hartzog said.
“It may seem as though, simply because something is ubiquitous on the Web, that you’re then free to take someone’s name or likeness and use it in anyway you want, but that’s simply not true,” Hartzog said. “It might lull people into this false sense of immunity. In fact, it’s always important to remember the re-publication rule of defamation, which is re-publication of a libel is another libel.”
But as Holland’s case may show — those defamed online could face an uphill legal battle.
“This kind of case is very difficult, because it shows just how vulnerable we all are in respect to photos and images that can be caught up in any kind of Internet frenzy,” Hartzog said. “Many would argue that [the lack of legal mechanisms] is a good thing, because it allows us to continue the unrestrained expression on the Internet that we’ve enjoyed thus far. But others have serious concerns about our reputation and ability to control our name, likeness and interest. It’s difficult to grab a hold of that on the Internet.”