• Zombie Images and the Right of Publicity
  • June 24, 2009 | Authors: Jeffrey D. Neuburger; Daryn A. Grossman
  • Law Firm: Proskauer Rose LLP - New York Office
  • Deleting information in the digital world can be a problematic issue. A Web site that appears to a viewer to present unitary pages of text and images actually consists of text and graphic elements that can be drawn from a variety of sources. For a variety of technical reasons, it is not unusual for text elements included in a Web page to be stored on one server and the images to be stored on another, even where the Web page, the text and image elements are all the property of a single entity. When references to text or images are deleted from the HTML code that makes up a Web page, the text and image files themselves may remain exactly where they were, still accessible directly via their original URL addresses, or via a search engine.

    Security researchers at the University of Cambridge in the UK recently studied this issue in the context of social networking sites. They found that for a variety of reasons, when users delete references to images that they have uploaded to social networking sites, those images may remain accessible for a period of time after they have been "deleted" by the user.

    A recent judicial opinion also briefly addressed the phenomenon of "zombie" photos, in the context of a dispute between a law firm and a group of its former associates, and a claim of violation of the right of publicity.

    Merritt, Flebotte, Wilson, Webb & Caruso, PLLC v. Hemmings is a dispute concerning allocation of fees and expenses between the law firm and the associates who departed to form their own firm. The associates answered the law firm's complaint and raised a variety of counterclaims, including the allegation that the law firm did not remove the associates' biographical information and photos from the firm Web site after they left. The associates claimed that the failure to completely remove the information and photos violated their privacy by "misappropriation of likeness."

    It may strike you as unlikely that the law firm would not have quickly removed the biographical information and photos of the departed associates, and indeed, the court found that the information had been removed promptly in the sense that the HTML code for the firm Web site was in fact changed to remove all reference to them. The court found that after the HTML code for the firm Web site was changed, it was not possible to navigate from the law firm Web site to the information about the associates. However, the court noted, the biographies and photos remained where they were on a server not owned by the law firm, and thus it was still theoretically possible to access the associates' information via a search engine.

    The North Carolina Court of Appeals affirmed the trial court's grant of summary judgment dismissing the associates' right of publicity claim, finding that the associates produced no evidence that the law firm intended to retain the files containing the associates' biographical information and photos, and that there was no evidence that any member of the public accessed the files containing the information and photos, despite the fact that it was theoretically possible to retrieve the files via a search engine. The court commented in passing that the associates had not claimed that the law firm was negligent, but instead asserted a claim for an intentional tort. The appeals court concluded that the associates had failed to prove an essential element of their intentional tort claim under North Carolina law, that the law firm misappropriated or used the associates' photographs or biographical information after they left the law firm.

    Merritt, Flebotte, Wilson, Webb & Caruso, PLLCĀ  v. Hemmings, 2009 N.C. App. LEXIS 606 (N.C. Ct. App., May 5, 2009)