Selfies—A New Field of Law
The Bencher—January/February 2021
By Richard K. Herrmann, Esquire
If I were West Publishing Company, it would be time for me to assign legal issues relating to selfies their own set of key numbers (assuming in this digital age that West still does that sort of thing). It wasn’t until I began the research that I realized how many fields of law are touched by the innocuous, even childish, act of memorializing one’s self in an unusual place or unique situation. Of course, I never would have thought a lawyer could make a career out of litigating coffee because it was served too hot. But here we are.
Let’s start with the statistics. As of 2018, there have been approximately 260 deaths caused by people attempting to take the perfect picture. The year 2016 was considered by many to be the “year of the “selfie.” According to one insurance study, 4% of all drivers admitted to taking pictures of themselves while driving. While you may be skeptical of these kinds of numbers, remember that many Millennials practiced texting while driving when they were getting their learners’ permits. CBS News has referred to the act of young people taking their own pics as a form of “fatal attraction” (www.cbsnews.com/news/selfies-while-driving-a-fatal-attraction-for-drivers
Of course, motor vehicle accidents and selfies are the obvious, even pedestrian, connection with the law. However, that is not what drew me into looking further into the connection between the law and selfies. Lawyers are creative. Let me give you some examples:
Sports Law and Selfies:
In 2018, plaintiff Brian Borruso was a spectator at the Valspar Gold Tournament in Palm Harbor, Florida. According to the complaint, plaintiff was simply engaged in the act of taking a selfie, with Tiger Woods in the background when Woods’ cadie intentionally pushed him aside, causing the alleged injuries. Borruso claimed damages in excess of $30,000. (www.si.com/golf/2020/04/10/tiger-woods-selfie-lawsuit-joe-lacava-analysis
It seems obvious that one taking a selfie ought to expect some form of copyright ownership. That was the issue in a 2015 lawsuit filed by PETA against David Slater, a wildlife photographer. The selfie at issue was not of Slater but rather an Indonesian named Naruto—a macaque monkey using Slater’s camera. The case was settled while in the 9th Circuit Court of Appeals. Slater agreed to donate 25% of the revenues from the images to an organization protecting Naruto and his relatives (www.npr.org/sections/thetwo-way/2017/09/12/550417823/-animal-rights-advocates-photographer-compromise-over-ownership-of-monkey-selfie
Who would have ever thought that the selfie would become a First Amendment issue? It seems reasonable there might be laws banning the use of cameras at or near election polling booths. These laws are aimed at encouraging voting and protecting voters from intimidation. Since cameras are involved, the law also prevents a voter from taking selfies while in the voting booth. The statute was challenged in Michigan as a violation of the First Amendment and the right to free speech. The “ballot-selfie ban” contest was settled by permitting voters to “selfie” the ballot in the booth but not the person voting (www.detroitnews.com/story/news/local/michigan/2019/05/08/michigan-allow-ballot-selfies-under-settlement/1140106001
We should expect lawyers to be marketing this growing area of law. After all, this may be a new niche market. Take a look, for example, at the Strom Firm in Columbia, North Carolina. In January 2020, the firm posted a page on its website devoted to medical malpractice selfie liability: “Doctors that Take Selfies with Patients Is a Strange Internet Trend that Could Lead to Medical Malpractice Charges.” Is this a stretch? Probably not (https://stromlaw.com/doctors-selfie-lead-to-medical-malpractice-charges
It is just a matter of time before the issue of selfies and lawyers will be before the court. So, before you snap the picture of you in front of the winning jury, be sure you have asked the judge for permission, you have the appropriate releases from the jurors, and you have selected the panoramic view on your iPhone 12 so that everyone is in the image. You might find yourself in Above the Law
Richard K. Herrmann, Esquire, is director of law and technology and visiting professor at Delaware Law School. He is a Master of the Bench member of the Richard K. Herrmann Technology American Inn of Court in Wilmington, Delaware.