Parents of soldier killed in Iraq sue maker of “Bush Lied” t-shirt featuring his name
posted at 3:27 pm on April 23, 2008 by Allahpundit
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The Smoking Gun has a copy of the complaint. Turning KIAs into political props is bad enough; getting rich off it — profits may reach $75,000 in this case — is execrable. Any tort lawyers in the audience want to skim through and weigh in on the likelihood of victory? If the parents can get it to a jury they’re golden, but can they? One of their claims, negligent infliction of emotional distress, is sketchy. Another, intentional infliction of emotional distress, is sturdier, but a judge might use the precedent of the Falwell case to find that the t-shirt maker’s First Amendment rights trump. (Falwell dealt with parody, not political speech, but it’s easy to imagine how a court might extend it.)
The real issue for the lawyers has to do with the remaining claim, the right of publicity. I’ve always understood that to be a specie of trademark jurisprudence: Your name and likeness can’t be used without your permission to hawk goods if people would be misled into thinking it was an endorsement. As far as I know, there’s no right of publicity at stake in a shirt that reads “Tom Cruise Sucks” since no one would be misled into thinking Tom Cruise had licensed it. Featuring the names of dead soldiers on an anti-war shirt isn’t quite as cut and dried as that, but I’ve personally never assumed that the families of the fallen have licensed the names and/or images of the troops used in those dopey mosaics of Bush’s face, so in no sense am I really being misled. The question, then, is whether the right at stake is a simple property right — you can’t use anyone else’s name for any reason, period — or whether there has to be some element of trying to “pass off” the name being used as an endorsement. Not sure where the law stands on that, but note what the Smoking Gun says in its introduction about the Arizona statute passed last year. I’m guessing the parents have an uphill climb here.
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Once again, even though it might be legal, it sure isn’t right.
There is no question that this is morally wrong. Too often in this country, people believe that if it’s legal, it’s moral.
Legality and morality are two completely different things, as this case may well demonstrate.
NoDonkey on April 23, 2008 at 3:32 PM
My guess would be the law is on the side of the scumbags. I’m not a lawyer, but experience has taught me that’s how it usually works.
fogw on April 23, 2008 at 3:35 PM
Whatever the legal merits of the case, good taste should prevent people from using a dead soldier’s image to hawk t-shirts and particularly if the family objects. Surely if the war is as unpopular with the troops as the Left maintains they can find some military families that will cooperate willingly. Heck, it might even have more impact if they showed a multiple limb amputee that now opposes the war. Then they could sell their ghastly shirts with the tag line that $0.50 of each purchase price will go to a fund to aid soldiers like the one pictured to buy new prosthetics, etc. If I can be this creative for a cause I don’t support, surely the goofballs on the other side can come up with a better idea than further hurting grieving families.
Jill1066 on April 23, 2008 at 3:37 PM
Worthless schmutz! I guess since the dear heart was killed on our tax dollars that makes him community property in their eyes? Man.
(Jeez, even I used my own dog and no presidential pic for our t and I’m as cheap as it gets.)
tree hugging sister on April 23, 2008 at 3:45 PM
Somebody was going to make a fast buck listing the name of their hero son on an anti-USA t-shirt. I hope they clean their clock. If not, they at least put these Liberal vultures on notice that they will not use the names of the fallen to disgrace why they fought and gave their life for freedom.
Isn’t it fitting that those who would not serve would abuse the freedom that has been won by others?
Hening on April 23, 2008 at 3:47 PM
Oh, man, now $75,000 is rich? Is Barry O really getting to you? ;)
mikeyboss on April 23, 2008 at 3:48 PM
This is one of those cases that is going to be upheld, overthrown, and reinstated a dozen or more times.
As with others here, to me, it is just not right. Especially once the family objects. How will Judge Judy and Judge Allred read it? No matter what the final outcome is this family will have been harmed….again.
Limerick on April 23, 2008 at 3:49 PM
Isn’t this enough to stop them?
richardcamera on April 23, 2008 at 3:52 PM
“Your name and likeness can’t be used without your permission to hawk goods if people would be misled into thinking it was an endorsement.”
What if the person in question is not a public figure?
You use Tom Cruise as an example, but his business is to make his name known. So are politicians.
But private parties should have more protection it would seem to me.
NoDonkey on April 23, 2008 at 3:57 PM
Personally, there is no difference in this than those nutball idiots who picket fallen soldier funerals, holding up their asinine signs saying things like “God hates America.”
The people who are suing these shirt makers should–IMO–frame their words very carefully. Put in the right light, these shirts are doing EXACTLY the same thing, just without literally standing outside the ongoing funeral.
If I remember correctly, the people who sued the picketers won MILLIONS.
The only thing we would need to watch out for is how far this type of precendent could be carried. I mean, there’s a very thin line between getting people to shut up and violating Freedom of Speech rights. While I would definitely support the people who want their relatives’ names removed from these despicable shirts, if lawmakers/lawyers/judges/etc aren’t careful, forcing this issue might lead us down a road that prevents us being able to use examples that would make a truly valid point. Like “Obama Lied, America Died.”
But then, I’m not a lawyer, either. Just someone who watches and learns.
jedijson on April 23, 2008 at 4:02 PM
Hope they win. Hope they run the T-shirt people into bankruptcy.
It’s like using the family member I had who committed suicide as a prop for some sort of thingie without permission. A slap in the face to a family that is still mourning and probably always will.
The T-shirt people should use some common sense and human decency when they do these things. Honestly…
mjk on April 23, 2008 at 4:05 PM
That’s the problem, Jill. These goofballs don’t have a creative bone in their bodies, hense using the same stupid protest songs from forty years ago, the same stupid slogans, the same stupid tactics, etc etc. That’s also why they all work as full time paid activists, if they had any creativity they’d have real jobs.
srhoades on April 23, 2008 at 4:10 PM
Stay classy libs.
TheUnrepentantGeek on April 23, 2008 at 4:31 PM
Just turn it around, before you snap to judgment. If it were a Clinton lied t-shirt, and he was sued by a soldier killed in Bosnia, we’d think it was just as ridiculous and contemptuous.
Their son would be ashamed.
MadisonConservative on April 23, 2008 at 4:35 PM
WHOOPS.
For some reason I didn’t register the fact that the kid’s name was used. I read it completely wrong. Ignore what the hell I just said.
MadisonConservative on April 23, 2008 at 4:36 PM
Strange…
The “Right to Privacy” was used to make it possible to kill a child in the womb…
But can’t be used to prevent the use of a Private Citizens name in something they find objectionable…
I find that… interesting.
Romeo13 on April 23, 2008 at 4:38 PM
“If it were a Clinton lied t-shirt, and he was sued by a soldier killed in Bosnia, we’d think it was just as ridiculous and contemptuous.”
No, “we” wouldn’t at all and “we” wouldn’t produce or buy a t-shirt like that either, so there wouldn’t be a market for them in the first place.
We aren’t like the lunatic left, that’s the whole point.
NoDonkey on April 23, 2008 at 4:39 PM
I know they do when it comes to libel or slander (I used to know the exact differences), and it would make sense that they would in other areas as well.
Clearly you can sell a t-shirt that says “Tom Cruise Sucks,” but can you sell one that says your next door neighbor does?
Esthier on April 23, 2008 at 4:42 PM
I’m a lawyer in California. I skimmed the complaint. I hated the formatting. Evidently that district doesnt care about requiring formatting that makes complaints easier to read.
My understanding is that someone made an anti-war shirt listing the names of all the dead, of which the Plaintiff (through his estate) is one.
I don’t think the case has any merit, because of 1st amendment rights.
Criticism of government is perhaps the most important speech protected by the 1st amendment. This shirt is a criticism of government, and it basically does the same thing Ted Koppel did by spending an entire episode of his shows just showing the dead, supposedly to ‘honor’ them.
Conservatives are supposed to be in favor of freedom of speech. This means putting up with speech we do not like. Using lawsuits as a weapon to suppress speech should not be done likely, especially not merely because you disagree with the speech. Remember that the vast majority of these types of lawsuits throughout the world are targeted at conservatives, and there is plenty of outrage when that happens. To condemn those suits and support this one is hypocrisy. We should not even be rooting for these people to win. Let’s not be hypocrites.
The way to respond to free speech you disagree with is with more speech condemning it.
kaltes on April 23, 2008 at 4:52 PM
America now is all about getting attention. People will sell anything to make a buck, no matter who it hurts.
At the rate we are going laws are not going to mean anything, lets see who survives..lawyers? I think not.
TroubledMonkey on April 23, 2008 at 4:53 PM
Anyone who thinks this way might as well tear the 1st amendment out of the Constitution and wipe their behinds with it.
kaltes on April 23, 2008 at 4:56 PM
I’m not licensed in TN, but if it was in Florida I would think the best way to color it would be some form of an invasion of privacy claim. Intentional Infliction of ED may fly depending on the state’s particular laws regarding that issue.
infidel2 on April 23, 2008 at 4:58 PM
I generally agree with that, but I would understand it if there were an exception on free speech that protected individuals from being used as propaganda after being killed.
In that sense, you’re not limiting an anti-war protectors ability to protest the war through t-shirts, you’re just forcing them to resort to initials or starred out names of those who ask not to be used.
Can I ask you how this is different from people who refuse to allow their faces to be shown on camera and are blotted out on screen?
Esthier on April 23, 2008 at 5:01 PM
If the parents lose the case, someone should create a cafepress shirt with some kind of pro-mission message and stamp that a-holes name on the back in big font.
It’s not an endorsement, it’s just, you know, there.
brainy435 on April 23, 2008 at 5:06 PM
The parents can sue for slander. Slander against them as parents and Slander against their Son’s name, may he rest in peace.
It is also a smear on any Solider or Marine who is KIA or DOW. I hope the guy loses everything personally.
upinak on April 23, 2008 at 5:15 PM
Hope they bankrupt the scumbag.
SuperCool on April 23, 2008 at 5:39 PM
Bastards.
Professor Blather on April 23, 2008 at 5:51 PM
From a personal perspective I will tell you that I lost a family member in this war.
He was not my son or I would have filed suit a long time ago.
It absolutely enrages me that someone would use his name to promote the lefties views.
BECAUSE HE BELIEVED IN WHAT HE WAS DOING!
And he would be furious that his death was being used this way.
I wouldn’t care if I won or lost, it is the principle.
And I am one of those “rich” people the left hates so I could certainly outgun him lawyer wise.
ArmyAunt on April 23, 2008 at 5:56 PM
I hate propaganda too. I’d love to ban it. The problem is that what constitutes propaganda is like what constitutes obscenity, it is mostly subjective. I might think Farhenheit 9/11 is propaganda, while a liberal might think Hot Air is propaganda. The founding fathers knew this and decided to protect all speech, all propaganda, so that all views may be heard, including the sickening ones, so that the people could decide right and wrong for themselves.
Me too. Of course we conservatives use the dead too: we invoke the names of Marx, Stalin, Mao, and Pol Pot in making our arguments against socialism, communism, and extreme liberals. Im sure none of them would be too happy that they were being used in this way.
I don’t care how rich you are, on a case like this you’d lose on a motion to dismiss and your case would be over.
kaltes on April 23, 2008 at 6:09 PM
This tale reminds me of the story of men stranded off shore in a small boat which ran out of gas. The fins of man-eating sharks were visible everywhere circling the boat.
One man who is a lawyer casually dives in, swims to shore, and brings back help. “That was amazing!!!,” said his buddy in the boat, “how come you weren’t immediately ripped limb from limb and eaten?”
“Professional Courtesy,” replied the lawyer.
landlines on April 23, 2008 at 6:12 PM
Slander is spoken defamation, so it doesn’t apply here. Written defamation is called libel. Since the parents were not mentioned on the shirt, there is no way to allege defamation against them.
As for the son, there is nothing untrue regarding his name. He is only represented to be among the dead and that is accurate.
kaltes on April 23, 2008 at 6:13 PM
kaltes on April 23, 2008 at 6:13 PM
Actually it does. If you look into many and multiple States there have and are some cases going on as of right NOW that show slander against individuals whom are dead.
You are seriously ticking me off. Your narrative on Dead Soldiers to Socialist’s aren’t even on the same level. PERIOD! Soldiers died for their country, duty and what they believed which is Freedom! Socialist made people of the couontry they resided in impoverish, poor, and to the point of Death or Starvation for ideals that no one should ever back.
I would highly suggest you think about what you are saying before posting it in here. Because you “propaganda” is not something I would claim. I.E. The Soldier didn’t Die because Bush Lied… you idiot!
upinak on April 23, 2008 at 6:23 PM
Holy Crap!!! It’s called bloody courtesy and sympathy for a family who lost a member of their own in a bloody war!!! How about they do that for all the Military who lost their lives in WW2?? There are people who think that war was pointless or something.
I don’t know if you’ve ever lost a family member in a tragic murder or during a war, but I can guaran-fricking-tee you that I would have the maturity and class not to put their exact name on a bloody T-shirt to advance my political cause.
Why? Because I’m a grown up who would never ever do that to anyone.
mjk on April 23, 2008 at 6:26 PM
The left sinks lower everyday.
jukin on April 23, 2008 at 6:27 PM
P.S. Perhaps you’d like the names of my family members who have killed themselves or have succumbed to Alcohol and drug addiction to further some political cause. I mean, first amendment and all.
mjk on April 23, 2008 at 6:31 PM
I’m not a lawyer, nor did I stay at a Holiday Inn Express last night, but….
I’m not sure the First Amendment right to free speech includes the right to use a dead soldier’s name, over the objection of his next of kin, in a manner which conceivably implies endorsement of your message.
Also, FWIW, Greeneville is a small southern town which would probably rank pretty high on the patriotism scale. They’re proud of their history, and previous residents include President Andrew Johnson, Davy Crockett, and country singer Rodney Atkins.
I think it’s safe to say the populace, and many individuals in the court system, will be sympathetic to the case and the family. IMHO.
cs89 on April 23, 2008 at 6:52 PM
Emotional arguments don’t work when you’re dealing with Constitutional law; like it or not.
Nonfactor on April 23, 2008 at 6:55 PM
Some of the other issues to consider.
Falwell was a public figure with fewer rights against a First Amendment defense by Penthouse Magazine.
The Soldier was not a public figure.
On the other hand, the fact that he was a Soldier who died in Iraq is a matter of public record.
California has laws which allow the survivors to control the right of publicity for the decedent.
My guess is that under Tennessee law the Soldier’s right of publicity died with him.
However, Dan Fraser knew or should have known that the use of the Soldiers’ names on the T-shirts would cause emotional distress to some of their survivors.
slp on April 23, 2008 at 7:00 PM
Thanks. End of thread.
freevillage on April 23, 2008 at 7:11 PM
IIED is a lot different than NIED. The Falwell comparision doesn’t relate very well.
Nonfactor on April 23, 2008 at 7:38 PM
Is that the standard now? Suppose, for the sake of argument, I genuinely believe that I have more concern for the memory of the soldier than his own family.
I know, it’s most likely false but we’re talking fundamental constitutional issues here.
Suppose my position is: the family of the soldier is wrong on this. The soldier was needlessly killed in a stupid war. That his family wants it to be otherwise is understandable but factually false in my estimation.
Do I have a constitutional right to express this view?
freevillage on April 23, 2008 at 7:46 PM
freevillage on April 23, 2008 at 7:46 PM
Sure you do. As I have the right to call you a complete idiot and a heartless bastard.
But would you slander your Mothers name… or even better. Would you let your friend slander and smear your Mothers name (for the sake of whatever) because it sells t-shirts? I think you would probably either get ticked off… or go for a slice of the pie. My opinion is you would go for the pie…. but then again 1st amendment!
Now that you are a little ticked off. Think about how the families feel that their children, brothers, sisters, uncles, cousins, aunts, husbands, wives, and wear a t-shirt with their names on it?
It is called common sense… use it!
upinak on April 23, 2008 at 7:55 PM
Koppel was not profiting (any more than if he ran a show a another topic) from his show “honoring” the dead. These tee-shirt makers are directly makeing profit off of these shirts. Does that figure in at all? I know very little about the law in this instace so that is a question of ignorance.
talking_mouse on April 23, 2008 at 8:04 PM
Would that this were so, but with the left-leaning end of SCOTUS, that seems to be most of what does matter.
njcommuter on April 23, 2008 at 9:27 PM
This case is utter twaddle. I understand the parents’ distress, and think the t-shirt maker is a total pile of arse, but your name is not protected at all. The dead soldiers names are arguably even less protected as they are part of the public record as servicemen. Their given names are nothing more than data, public data, and this dirtbag can use them in such a factually correct manner.
He cannot misrepresent them, however - that would be cause for legal action - but simply listing them as casualties of war is perfectly factual.
An ugly abuse of the fallen, for sure, but not legally actionable.
LimeyGeek on April 23, 2008 at 9:35 PM
(a) No such thing as a “First Amendment right to free speech”, only a First Amendment protection of free speech
(b) The right of free speech is abstract, and makes no specific claims to how that right is exercised. If Joe Shmoe dies in a war you object to, you are at liberty to talk about him, his loss, and the futility of it all.
LimeyGeek on April 23, 2008 at 9:42 PM
kaltes is mostly correct, however, libel (the t-shirts are printed) post-Sullivan doesn’t protect private individuals from the malice standard nor from free speech protections if no public figure is involved.
While Texas statutes may differ slightly, I doubt they move far from Federal jurisprudence in this area.
Not only would the case move beyond summary judgment, I believe plaintiff would win on the merits–here’s how: you are probably familiar with laws prohibiting murderers and serial killers from profiting from their cases, so in the case at bar a judge would likely find the speech acceptable under First Amendment grounds but would rule that the profits go to decedent’s estate.
You now owe me $125.
I’ll bill you.
Lexis-Texas on April 23, 2008 at 10:05 PM
Your reasoning is ridiculous. You may be right as to the outcome but the explanation makes zero sense. They aren’t murderers. If their message is legitimate from the point of view of the law, and they have broken no other law, why can’t they make money off these t-shirts?
freevillage on April 23, 2008 at 11:11 PM
Well, you’re wrong about me. I guess you’re projecting your own thoughts.
freevillage on April 23, 2008 at 11:12 PM
Would a mosaic of Brezhnev’s face made up of Russian soldiers, say those who were drafted to go to Afghanistan and had zero choice in the matter, be an abuse of the fallen?
Or would it be a totally acceptable (certainly on this forum) message that Brezhnev’s idiotic policy led to lots of good people’s deaths.
freevillage on April 23, 2008 at 11:43 PM
Yes. Their names appearing on a t-shirt implies that they endorse the t-shirt guy’s view and makes no allowance for those who don’t. The assumption that ‘death = I didn’t support the President/Premier’ is the problem, as the vast majority of soldiers understand duty and aren’t whiny t-shirt making tards who only have enough balls to use the names of those who can’t come find them and kick their asses for misrepresenting their views.
If there is a difference, though, US soldiers weren’t drafted and chose to serve in whatever capacity they’re legally ordered to serve, but even then, some draftees support the actions they’re sent into.
James on April 24, 2008 at 8:26 AM
As my name suggests, I am only a student of the law at this point, but this is the way I understand the issue. This is not a defamation issue (slander, libel) because you cannot defame the dead. This is not a 1st amendment issue, of course they have the right to display their opinions in this fashion. This is an issue of using a person’s name to forward that opinion, thus making it seem that that person endorsed said opinion.
Everybody has a right of publicity, it’s just that Tom Cruise could make a hell of a lot more from using his name and likeness than I could, so his damages would be far greater. One could make the argument that because they turned a profit by using the man’s name and likeness, that shows on its face that he (by “he” I mean his estate) could have made money and that his right of publicity was substantial. They could seek an injunction to prevent this and/or damages for all or part of the profits.
Can any actual attorneys correct mistakes I may have in my analysis?
ConservativeLawStudent on April 24, 2008 at 8:48 AM
No, I was entirely correct, I just didn’t care to get into detail on libel because it clearly isn’t an issue here. The only thing being said about the persons named is that they died in Iraq, and that is true.
Haha no, wrong. The entire case gets tossed on a motion to dismiss because, as a matter of law, plaintiffs have stated no valid causes of action. Anti-war t-shirt makers arent killers. They didnt kill these soldiers. It isnt like al queda is printing these shirts, so your analogy doesnt make sense.
No it doesn’t. Their names are being used to show the bodycount in more personal terms. It isn’t an endorsement.
I hope you grow out of using such tortured language before you finish law school. People don’t speak like this. When I read this out loud I feel like an old british guy in a white wig is saying it. lol
Not really. People who arent famous don’t really have any trademark rights in their names, because their names arent worth anything. Instead, non-famous people have to rely on causes of action like violations of privacy type stuff. So no, a soldier from iraq isn’t going to have a trademark claim. Even if he did, trademark doesn’t override the 1st amendment either.
And no, the soldier could not have made money putting his name on shirts. The name isn’t what sold the shirts, the anti-war message is what sold the shirts. The names by themselves are worthless.
kaltes on April 25, 2008 at 6:06 AM