Joseph E. Foreman, a rapper also known as “Afroman,” is the subject of a filing in Ohio (below) by seven police officers alleging that he has misused their images to sell merchandise and place them in a false light. The images, however, were taken during a raid on Foreman’s home, which failed to turn up any evidence of criminal conduct. I am skeptical of the claims, but there are novel elements that could lead to some important clarifications under Ohio tort law.
In August 2022, the four deputies, two sergeants and a detective with the Adams County Sheriff’s Office in West Union were part of a raid on Foreman’s home in Winchester, Ohio. The warrant indicates that the search was for evidence of kidnapping, marijuana and drug paraphernalia related to drug possession and trafficking. Foreman was not at home but his wife was home and filmed the raid. Security cameras also captured footage.
Known for his song “Because I Got High,” Foreman, 48, proceeded to post pictures from the raid on videos and on social media. Deputies Shawn Cooley, Justin Cooley, Shawn Grooms and Lisa Phillips, as well as sergeants Michael Estep and Randolph Walters Jr. and detective sergeant Brian Newland then sued him for the unauthorized use of individual’s persona, invasion of privacy by misappropriation and invasion of privacy by false light publicity, among other things.
We have previously written about attempts of police departments to criminally charge citizens for filming them in public, an effort that I have long criticized. Courts have largely rejected those claims.
However, in this case, the officers are not alleging privacy torts like intrusion upon seclusion. They are focusing on the use of the images for selling merchandise and other commercial purposes.
Ohio has codified the common law of misappropriation of name or likeness at Section 2741.02 below. The law contains an exception for “any news, public affairs, sports broadcast, or account.” It also has an exception for “any political campaign.” However, it does not exempt the use of footage in creative work.
I have serious concerns over the complaint. This is a raid on Foreman’s home, which he obviously opposed, as a baseless and excessive use of force. As an artist, he is expressing that opposition through videos and other means. It clearly has a political component on the use of law enforcement authority and issues of racial justice. If he put the pictures on signs and picketed in front of the police department, he would presumably be protected. Foreman used digital and video means to make the same point.
While I believe it is unfair to single out these officers who were carrying out their orders under a valid warrant, these are officers of the state filmed in and around Foreman’s home.
It appears true that some of these images were used to sell commercial products, including promotional videos. In an Instagram post, he wears a shirt with the images and thanked one of the officers for helping him get 5.4 million views on TikTok. In a social media posting, he writes “Congratulations again you’re famous for all the wrong reasons” and in another post, he called an officer “Police Officer Poundcake,” showing him glancing at a glass-domed dish holding a cake. In an interview on the YouTube channel VladTV, Foreman talks about how the raid inspired him to write the song “Lemon Pound Cake.”
Some of these images admittedly amount to taunting and, in my view, are excessive. I can understand why these officers object to be being highlighted in such public attacks by a celebrity. Yet, they are part of an official operation conducted in Foreman’s home.
Moreover, if Foreman wrote a book with these images, the same would be true. The case could lead to important clarification on what constitutes protected speech.
I also have concerns over the false light claim.
While some states have rejected false light claims in favor of using defamation actions exclusively, Ohio recognizes both claims. Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.
The complaint simply says that Foreman’s portrayal of the officers puts them in a false light and subjects them to “undue ridicule, embarrassment, mental distress, and danger.” However, Foreman has a right to object to the raid as unjustified and even racially motivated. That is part of an overall national debate on such claims. Many would disagree with such suggestions in this case, but Foreman has a right to raise the issues and, in my view, use the images. Officers can claim that the images looking at the cake make them look unprofessional, but there is countervailing imagery of the raid as not just serious but frightening. It all, again, goes to Foreman’s views of the basis and conduct of law enforcement.
If an artist painted a scene from the raid on Stonewall Inn or the crackdown on Freedom marchers, would the sale constitute a misappropriation violation?
I am sympathetic with the objections of the officers. Foreman is clearly using his celebrity status to extract a degree of revenge in my view. However, the liability for showing officers in a raid could have a chilling effect on political speech, including when such speech is a component of creative work.
Here is the complaint: Cooley v. Foreman.
Here is Section 2741.02:
A) Except as otherwise provided in this section, a person shall not use any aspect of an individual’s persona for a commercial purpose:
(1) During the individual’s lifetime;
(2) For a period of sixty years after the date of the individual’s death; or
(3) For a period of ten years after the date of death of a deceased member of the Ohio national guard or the armed forces of the United States.
(B) A person may use an individual’s persona for a commercial purpose during the individual’s lifetime if the person first obtains the written consent to use the individual’s persona from a person specified in section 2741.05 of the Revised Code. If an individual whose persona is at issue has died, a person may use the individual’s persona for a commercial purpose if either of the following applies:
(1) The person first obtains the written consent to use the individual’s persona from a person specified in section 2741.05 of the Revised Code who owns the individual’s right of publicity.
(2) The name of the individual whose persona is used was the name of a business entity or a trade name at the time of the individual’s death.
(C) Subject to the terms of any agreement between a person specified in section 2741.05 of the Revised Code and a person to whom that person grants consent to use an individual’s right of publicity, a consent obtained before the death of an individual whose persona is at issue remains valid after the individual’s death.
(D) For purposes of this section:
(1) A use of an aspect of an individual’s persona in connection with any news, public affairs, sports broadcast, or account does not constitute a use for which consent is required under division (A) of this section.
(2) A use of an aspect of an individual’s persona in connection with any political campaign and in compliance with Title XXXV of the Revised Code does not constitute a use for which consent is required under division (A) of this section.
(E) The owners or employees of any medium used for advertising, including but not limited to, a newspaper, magazine, radio or television network or station, cable television system, billboard, transit ad, and global communications network, by whom any advertisement or solicitation in violation of this section is published or disseminated are not liable under this section or section 2741.07 of the Revised Code unless it is established that those owners or employees had knowledge of the unauthorized use of the persona as prohibited by this section.