A succint opinion.

Another case that has caught my eye, Randle v. Viacom, 2008 U.S. Dist. LEXIS 32092 (S.D. Tex 2008). Interesting facts, no-nonsense conclusion. For a taste of this judge's style, look no further than the opening salvo:

• Two music promoters visited a friend in prison and posed for a photograph with him. Years later, a television program used the picture in a documentary about the friend. The promoters sued the television channel, its parent company, and an Internet vendor for defamation and misappropriation of their image. They lose.

Why read any further? You know how it ends - still, the facts are entertainingly novel. The documentary series was called "American Gangster," and the gang member being visited was Larry Hoover, of Chicago. The visit at issue occurred more than twenty years before the picture taken during that visit was used. The most serious alleged defamatory statement occurred in a commercial for the series, in which the faces of the music promoters "showed on screen for one second as the words 'they were killers, they were criminals' were spoken."

The judge concludes that the plaintiffs suffered no compensable harm to their reputations, noting that viewers "would not know who [the promoters] were after seeing their 20-year old picture; they would not know what crime they had helped Hoover commit." I think the judge is a bit too quaint in observing:

• Reasonable viewers may conclude that the promoters are disreputable people from the picture and the explanation of Hoover's history. A viewer might infer that normal people do not visit guys in prison -- and have a snap shot taken with him. To that extent, the promoters may have lost standing in their community, but they cannot complain of a broadcast of accurate pictures of their social choices.

There are over two million Americans in prison now, and they may have parents, spouses (Hoover's visitors were accompanied by his spouse, who took the picture at issue), siblings, children, extended family members, and yes, even friends who visit them in prison. On the other hand, this statistic should hurt the plaintiffs rather then helping them, as it reduces any negative inference to be drawn from a picture of people visiting a prisoner. Indeed, another point raised in the opinion is the utterly flimsy nature of the alleged harm, supported only by "an affidavit of vague hearsay statements about why a potential partner dropped out of a deal."

At the end of the day, I think this is the correct outcome, although I also think that a reasonable viewer would understand the reference to "killers" to refer to the subjects of the series generally, and not the pair flashing in the pan in a one-second photo spot. If this was indeed the tenor of the narration, I would like to have seen a bit more analysis of this point, but the judge had the evidence in front of her, so I won't continue to second guess more than I already have.